                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-2274
                          ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                Shawn Allan Mackey,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                           Submitted: December 14, 2012
                               Filed: June 10, 2013
                                  ____________

Before LOKEN, BRIGHT, and COLLOTON, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

      Shawn Mackey was indicted for failing to register as a sex offender, in violation
of 18 U.S.C. § 2250(a). After the parties stipulated that Mackey was incompetent to
understand the proceedings against him or to assist in his own defense, see 18 U.S.C.
§ 4241, the government moved to medicate Mackey involuntarily to restore his
competency to stand trial. Applying the criteria set forth in Sell v. United States, 539
U.S. 166 (2003), the district court1 granted the motion. Mackey appeals, and we
affirm.

                                          I.

        On June 15, 2010, a grand jury charged Mackey with one count of failing to
register as a sex offender, as required under the Sex Offender Registration and
Notification Act (“SORNA”). The district court ordered Mackey detained pending
trial, and later granted Mackey’s motion for a mental evaluation, pursuant to 18
U.S.C. §§ 4241(a) and 4242(a).

       Mackey was evaluated at the Federal Detention Center in Seattle, Washington.
Mackey refused to participate in the competency assessment process, so mental health
professionals were unable to provide an opinion concerning his competency to stand
trial. Accepting a stipulation of the parties, however, the district court later found
after a hearing that Mackey was suffering from a mental disease or defect that
rendered him mentally incompetent to understand the proceedings against him or to
assist in his defense. See 18 U.S.C. § 4241. In August 2011, the court ordered
Mackey committed to the custody of the Attorney General for further evaluation and
treatment at a suitable federal medical facility, with the goal of determining whether
there is a substantial probability that Mackey would attain the capacity to stand trial
in the foreseeable future. See id. § 4241(d)(1).

      In March 2012, after receipt of a forensic mental health evaluation prepared at
the United States Medical Center for Federal Prisoners in Springfield, Missouri, the
government moved the court to conduct a Sell hearing to determine whether Mackey
should be medicated involuntarily. The district court heard testimony from two


      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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doctors at the Medical Center—Dr. Christina Pietz, Ph.D., ABPP, Staff Psychologist,
and Dr. Robert Sarrazin, M.D., Chief of Psychiatry. Dr. Pietz is a board-certified
forensic psychologist. In more than twenty years at the United States Medical Center,
Dr. Pietz’s primary responsibility has been to complete court-referred competency and
sanity evaluations, civil commitments, and risk assessments. She has treated a number
of patients who suffer from delusional disorders, and testified over three hundred
times in federal court regarding patients’ mental health or competency to stand trial.
Dr. Sarrazin is board certified in general psychiatry, forensic psychiatry, and
psychosomatic medicine. As Chief of Psychiatry at the Medical Center, he treats
patients with psychotic disorders such as schizophrenia, delusional disorder, and
psychotic disorder not otherwise specified. Approximately one hundred patients at
the Medical Center are involuntarily medicated at any given time.

      Dr. Pietz testified that she tried to interview Mackey on seven occasions
between December 1, 2011, and February 7, 2012, but that Mackey refused to talk to
her on almost all of those occasions, so she was unable to have extensive interviews
with him. Dr. Pietz was aware from the forensic evaluation in Seattle that Mackey
may suffer from a mental illness, and she was aware that the district court had found
Mackey incompetent to stand trial. She testified:

      [Mackey] made a number of comments that suggested he was suffering
      from a mental illness. He indicated that he owns Alaska . . . . And
      another time he reported that his mother owned Alaska. . . . That’s a
      symptom of a mental illness; it’s a delusion, a delusion of
      grandiosity . . . . Given his presentation, the comments he made, I felt
      that even though I had [little] interaction with him, his presentation was
      consistent with someone suffering from a mental illness, a psychotic
      disorder.

Using terminology from a manual of mental disorders, Dr. Pietz concluded that
Mackey suffers from a “psychotic disorder not otherwise specified.” See Diagnostic


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and Statistical Manual of Mental Disorders 343 (Am. Psychiatric Ass’n ed., 4th ed.
2000).

       Dr. Sarrazin interviewed Mackey in February 2012. Mackey came out of his
cell and “spent some time” talking with the doctor. Dr. Sarrazin testified it was “quite
clear from [his] interview with [Mackey] that he’s delusional, disorganized in his
thinking,” and that Mackey made clear that he did not want to take medication. Dr.
Sarrazin opined that administration of antipsychotic medication would be necessary
to restore Mackey’s competence to stand trial. He saw a substantial probability that
the medication he recommended would render Mackey competent to stand trial, and
that side effects of the medication would not impair Mackey’s competency. Dr.
Sarrazin said that medication would lead to marked improvement in other aspects of
Mackey’s life, including better personal hygiene and the ability to interact with peers.
Both Dr. Sarrazin and Dr. Pietz testified that no less intrusive treatments are available
to assist Mackey in regaining competency.

      Following the hearing, the district court granted the government’s motion to
medicate Mackey involuntarily, if necessary. The court provided that “[i]f Mr.
Mackey does not take the recommended medication voluntarily and the medical staff
concludes involuntary administration is clinically appropriate, involuntary
administration of anti-psychotic medication is ordered.”

       The district court observed that both experts diagnosed Mackey with a
“psychotic disorder not otherwise specified,” and noted that he suffers from delusions
of grandeur. The court concluded that there was an “important governmental interest
in this case, . . . both with regard to the public policy of the SORNA statute, and in
Mr. Mackey’s particular case.” There was clear and convincing evidence, according
to the court, “that the involuntary administration of medication, if necessary, will
further the interest of restoring Mr. Mackey to competency” to stand trial. The court
also found that involuntary medication is appropriate if necessary, and that there are

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no less intrusive treatments available. Finally, the district court determined that “the
administration of the drugs is medically appropriate and in Mr. Mackey’s best medical
interests in light of his medical condition,” and that any side effects of the medication
would not damage Mackey or interfere with his competency to stand trial.

       Mackey timely appealed the district court’s order. We have jurisdiction under
the collateral order doctrine. Sell, 539 U.S. at 176-77.

                                           II.

        In Sell, the Supreme Court concluded that the government may administer
antipsychotic drugs involuntarily to render a mentally ill criminal defendant
competent to stand trial for serious, but nonviolent, crimes. To order the
administration of drugs, a court must find: (1) that an important governmental interest
is at stake; (2) that involuntary medication will significantly further that governmental
interest; (3) that involuntary medication is necessary to further that interest; and
(4) that administration of the drugs is medically appropriate. Id. at 180-81. The
district court in this case made each of the required findings. We review de novo a
court’s legal determination that important governmental interests are at stake. United
States v. Fazio, 599 F.3d 835, 840 (8th Cir. 2010). The government must prove the
other three elements by clear and convincing evidence, and we review the district
court’s findings for clear error. Id. at 840 & n.2.

       On the first element, it is undisputed that the government has an important
interest in bringing to trial an individual accused of a serious crime, Sell, 539 U.S. at
180, but Mackey argues that his offense was not serious, because it is merely a “non-
violent, status offense.” In determining the seriousness of the offense, we agree with
those circuits that place the greatest weight on the maximum penalty authorized by
statute, see United States v. Green, 532 F.3d 538, 546-49 & n.8 (6th Cir. 2008);
United States v. Palmer, 507 F.3d 300, 303-04 (5th Cir. 2007); United States v. Evans,

                                          -5-
404 F.3d 227, 238 (4th Cir. 2005), as it is the most relevant objective indication of the
seriousness with which society regards the offense. Blanton v. City of North Las
Vegas, 489 U.S. 538, 541 (1989). Congress established a maximum term of ten years’
imprisonment for the offense of failure to register under SORNA, 18 U.S.C.
§ 2250(a), and that authorized punishment “is ‘serious’ under any reasonable
standard.” Evans, 404 F.3d at 238.

       We disagree with Mackey’s contention that so-called “status” offenses are not
“serious” for purposes of Sell, or that the nature of the offense is a “special
circumstance” that lessens the governmental interest in prosecution. See Sell, 539
U.S. at 180. SORNA is premised on a legislative determination that sex offenders
who are not properly registered present a serious risk to the safety of the community.
The registration provision was part of “a broader statutory scheme enacted to address
deficiencies in prior law that had enabled sex offenders to slip through the cracks.”
Carr v. United States, 130 S. Ct. 2229, 2240 (2010). Even where the commission of
an offense does not itself harm others directly, society may have a strong interest in
prosecuting the violation and imposing punishment. See Fazio, 599 F.3d at 840
(holding that the “status” offense of firearm possession by a felon is a “serious”
crime); Green, 532 F.3d at 549 (holding that drug trafficking is “serious” even when
there is no identifiable victim); United States v. Valenzuela-Puentes, 479 F.3d 1220,
1226-27 (10th Cir. 2007) (holding that unlawful reentry to the United States is a
“serious crime”); United States v. Cuevas-Ramirez, 501 F. App’x 814, 820 (10th Cir.
2012) (rejecting argument that “status” offense of illegal reentry is not “serious.”).

       Mackey contends that other special circumstances lessen the importance of the
governmental interests in his case. He argues that even if medication renders him
competent to stand trial, he is likely to be found not guilty by reason of insanity and
civilly committed, such that the government’s interest in confinement will be satisfied.
Civil commitment, however, is not a substitute for a criminal trial, and the potential
for that type of confinement does not totally undermine the government’s interest in

                                          -6-
prosecution. Sell, 539 U.S. at 180. In this case, moreover, the record does not
demonstrate a strong likelihood of civil commitment. That Mackey was delusional
at the time of his arrest does not necessarily mean that he could mount a successful
insanity defense; at this time, Mackey has not even noticed an intent to pursue such
a defense. See Fed. R. Crim. P. 12.2(a). Long-term civil commitment could be
justified, after a finding of insanity, only on a showing that Mackey presents “a
substantial risk of bodily injury to another person or serious damage to property of
another.” 18 U.S.C. § 4246(d)(2). Mackey does not concede that this standard would
be satisfied. Given the uncertainty of civil commitment and the government’s interest
in timely prosecution, the interest in prosecuting Mackey remains strong.

        Nor are we convinced that the governmental interest in prosecution is
substantially weakened by the amount of time that Mackey has been detained pending
trial. Given the advisory nature of the sentencing guidelines, see United States v.
Booker, 543 U.S. 220, 258-65 (2005), and the broad discretion of district courts to
sentence within the statutory range based on their personal sentencing philosophies,
see Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Bueno, 549 F.3d
1176, 1182 (8th Cir. 2008), we cannot blithely assume that Mackey’s proposed
advisory guideline range of 24-30 months’ imprisonment is likely to be the ultimate
sentence imposed if Mackey were convicted. At this stage, it is impossible to know
whether a sentencing court would conclude that a term closer to the statutory
maximum of ten years’ imprisonment is warranted. Cf. United States v. Nicklas, 623
F.3d 1175, 1179 n.5 (8th Cir. 2010) (“We decline to rely heavily upon a ‘sentencing
proceeding . . . [conducted] without the benefit of a presentence report and the facts
necessary to conduct such a proceeding.’”) (quoting United States White, 620 F.3d
401, 428-29 (4th Cir. 2010) (Niemeyer, J., dissenting)). And a term of imprisonment
is not the only sanction available in a criminal prosecution. A criminal sentence also
must include a term of supervised release of at least five years and extending up to the
rest of Mackey’s life. See 18 U.S.C. § 3583(k). This sanction—not available in a
civil commitment proceeding—furthers the government’s interest in monitoring sex

                                          -7-
offenders who have demonstrated an unwillingness to comply with the registration
requirements of SORNA. In any event, the fact of pretrial confinement that may
approach the likely term of imprisonment in a criminal case “does not totally
undermine . . . the strength of the need for prosecution.” Sell, 539 U.S. at 180.

        Mackey also complains that the district court improperly considered his
potential dangerousness when it remarked that SORNA enables “people in the local
community [to] protect themselves and assure community safety in working with law
enforcement to know the identity and whereabouts of sex offenders such as Mr.
Mackey.” This objection misunderstands the Sell inquiry into governmental interest.
To be sure, the Court in Sell, id. at 181-82, explained that the government sometimes
uses involuntary medication to pursue interests independent of bringing an accused
to trial; one such interest is to reduce danger that an inmate poses to himself or others
while incarcerated. See Washington v. Harper, 494 U.S. 210, 225-26 (1990). But the
district court here did not rely on an interest in addressing any danger that Mackey
posed to himself or others while confined. The court, rather, focused on the
government’s interest in protecting the public through prosecution of an accused who
posed a danger to the community by failing to comply with the registration
requirements of SORNA. This sort of dangerousness is a proper consideration when
determining the importance of the governmental interest under Sell. See United States
v. Ruiz-Gaxiola, 623 F.3d 684, 694 n.6 (9th Cir. 2010); United States v. Gomes, 387
F.3d 157, 160 (2d Cir. 2004).

       On the second Sell element, Mackey argues that the district court clearly erred
in finding that it was satisfied. He contends that there was insufficient evidence to
conclude that antipsychotic medication is substantially likely to restore Mackey’s
competency to stand trial and substantially unlikely to have significant side effects.
Mackey believes that his medical condition is an unusual “grandiose delusional
disorder,” and that the experts were not equipped to address how medication would
affect this condition. Mackey relies on United States v. White, 620 F.3d 401, 421 (4th

                                          -8-
Cir. 2010), where a divided panel concluded that the record did not support a finding
that involuntary medication was likely to be effective in treating a woman with
delusional disorder of the grandiose type.2

       We find no clear error in the district court’s finding that involuntary medication
would significantly further the government’s interest in prosecution of this case. The
district court accepted the testimony of Dr. Pietz that Mackey “will be restored to
competency” with proper medication, and the opinion of Dr. Sarrazin that there is a
“substantial probability that [Mackey] would be restored to competency with
involuntary antipsychotic medication.” Dr. Sarrazin also opined that the “nuisance
side effects” of such medication—which could include sedation, light-headedness, and
dry mouth—usually dissipate quickly and “would not impair [Mackey’s] ability to be
competent.”

      Mackey’s counsel questioned both experts about the decision in White. Dr.
Pietz disagreed with the proposition that “people [who] suffer from delusional
disorders, particularly of the grandiosity type, rarely respond to medication,” saying
that she has worked with persons suffering from delusional orders who have
responded favorably to medication and been restored to competency. Dr. Sarrazin
disagreed with the suggestion that “delusional disorders . . . often do not respond to
medication or often have poor response results from medication.” Based on his
experience and review of literature, he opined that “psychotic illnesses do respond to
antipsychotics,” and that such medications “would be the treatment of choice for
delusional disorders.” The expert in White, by contrast, was skilled in treating
schizophrenia, not delusional disorders; she had never treated a patient with the
defendant’s delusional disorder; she conceded that she really did not know how the

      2
        Mackey also asserts that his “unique medical condition” lessens the
governmental interest in prosecution for purpose of the first Sell element, but the
likelihood of successful treatment is properly addressed under the second element.
539 U.S. at 181.

                                          -9-
female defendant would respond to antipsychotic medications; and she relied heavily
on a study with only male subjects, despite literature suggesting that men and women
often react differently to medications. White, 620 F.3d at 421. Mackey has not
demonstrated that it was impermissible for the district court to credit the more
persuasive testimony of the experts in this case.

       Mackey does not challenge the district court’s finding on the third Sell factor.
On the fourth, he contends that administration of antipsychotic drugs is not medically
appropriate. Again, however, the district court reasonably credited the expert
testimony. Dr. Sarrazin, who would be the prescribing physician, specified the
medications that would be employed, and explained that they are used daily in the
United States to treat psychotic illness. He testified that most of the anticipated side
effects are nuisances that usually end within three or four days. The medical facility
also would monitor the patient for increased lipids or increased glucose that might
result, and mitigate these effects as necessary. More generally, Dr. Sarrazin testified
that the medication not only would restore Mackey’s competency to stand trial, but
would allow the patient—who was not showering, recreating, or communicating with
staff—to “have a better quality of life and to kind of move forward.” Mackey
presented no countervailing evidence. It was not clear error for the court to find that
the proposed treatment plan is medically appropriate and in Mackey’s best medical
interests.

                                   *       *       *

      The order of the district court is affirmed.
                       ______________________________




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