                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       February 23, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-4199
          v.                                               (D. Utah)
 B EN JA M IN A RC HU LETA ,                     (D.C. No. 2:05-CR-676-TC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Circuit Judge, PO RFILIO and A ND ER SO N, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Defendant and appellant Benjamin Archuleta appeals an order determining

that the involuntary administration of antipsychotic medication is necessary to

render him competent to stand trial. W e affirm.



                                 BACKGROUND

      In September 1998, Archuleta was charged with threatening the life of a

federal district court judge in Utah. He was sent to a facility in Springfield,

M issouri, for a competency evaluation. After undergoing treatment, Archuleta

was found competent to stand trial while on medication. Thereafter, the

government and Archuleta entered into a stipulation that led to a finding of not

guilty by reason of insanity. Archuleta was accordingly committed to a hospital.

      Archuleta was subsequently released from the hospital w ith specific

conditions of release, pursuant to 18 U.S.C. § 4246. After Archuleta violated the

conditions of release, the district court imposed stricter conditions and released

Archuleta to a halfway house. W hen Archuleta again violated his conditions of

release, the court revoked his release and remanded him to the custody of the

Bureau of Prisons for continued hospitalization at the Springfield facility.

      In June 2004, the court again ordered Archuleta released on certain

conditions. In February 2005, the court terminated supervision of Archuleta and

considered the case closed. W ithin seven months of the termination of his

supervised release, the United States M arshal Service and the Bureau of Alcohol,

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Tobacco and Firearms (“BATF”) learned that Archuleta had attempted to

purchase a firearm from a local pawn shop in Salt Lake City, Utah. In doing so,

Archuleta had lied about his prior mental health commitment on a form used as a

background check. Pursuant to 18 U.S.C. § 922(g)(4), Archuleta is a restricted

person who is not permitted to possess or attempt to possess a firearm.

      The government charged him with providing false information in the

acquisition of a firearm. W hen Archuleta made his initial appearance on the new

firearms charge, the court ordered him to undergo a psychiatric evaluation to

determine his competency to stand trial and his mental state at the time of the

offense. The court-appointed forensic psychiatrist concluded that Archuleta was

not competent to stand trial, but was unable to determine his mental state at the

time of the offense.

      A magistrate judge held a competency hearing in M arch 2006 and

determined that Archuleta was not competent to stand trial and ordered that he be

remanded to the custody of the Bureau of Prisons for restoration of competency.

The magistrate judge also ordered an evaluation of Archuleta’s mental health

status at the time of the offense and an assessment of whether Archuleta was a

danger to himself or others. Later that same day, the district court ordered a

specific psychiatric evaluation of whether Archuleta should be involuntarily

medicated during the court-ordered competency restoration commitment.




                                         -3-
      Dr. Jeffrey W atabe conducted the evaluation on involuntary medication and

prepared a report. In preparing his report, Dr. W atabe relied upon a number of

items, including an interview with Archuleta, records and/or reports from the

Davis County jail, the BATF and the Springfield facility, a forensic evaluation

prepared by Jasmine A. Tehrani, Ph.D, a risk assessment review report prepared

by Eduardo Ulloa, M .D., a mental health evaluation prepared by Kathy Reimherr,

L.C.S.W ., and forensic reports prepared by Lea Ann Preston, Ph.D and Robert L.

Denney, Psy.D., A.B.P.P. Dr. W atabe evaluated the possibility of involuntary

medication under the four-part analysis of Sell v. United States, 539 U.S. 166

(2003).

      That four-part analysis involves the follow ing inquiry: (1) “a court must

find that important governmental interests are at stake”; (2) “the court must

conclude that involuntary medication will significantly further . . . state interests

. . . [in that the] administration of the drugs is substantially likely to render the

defendant competent to stand trial . . . [and that] administration of the drugs is

substantially unlikely to have side effects that will interfere significantly with the

defendant’s ability to assist counsel in conducting a trial defense”; (3) “the court

must conclude that involuntary medication is necessary to further those interests

. . . [in that] any alternative, less intrusive treatments are unlikely to achieve

substantially the same results”; and (4) “the court must conclude that

administration of the drugs is medically appropriate, i.e., in the patient’s best

                                           -4-
medical interest in light of his medical condition.” Sell, 539 U.S. at 180-81; see

also United States v. M orrison, 415 F.3d 1180, 1181 (10th Cir. 2005) (discussing

the Sell factors).

      Dr. W atabe diagnosed Archuleta as having “Schizophrenia, paranoid type.”

Report at 11, R. Vol. III. The schizophrenia diagnosis was “based on M r.

Archuleta’s difficulty with delusions and hallucinations that have caused him

significant interpersonal, occupational, and legal difficulties” which have

“persisted for a number of years and do not appear to be related to mood

disorders, medical conditions, or drug abuse.” Id. The “paranoid type” qualifier

was “based on the prominence of M r. Archuleta’s delusions and absence of

significant disorganized or catatonic behaviors.” Id.

      Applying the four Sell factors, D r. W atabe concluded that Archuleta should

undergo involuntary medication to restore his competency to stand trial. On the

first factor, whether important governmental interests are at stake, Dr. W atabe

stated that he was unable to “address with reasonable medical certainty whether

important governmental interests were at stake . . . because this topic lies outside

the area of [his] expertise.” Id. at 11-12. The doctor did, however, state “with

reasonable medical certainty” that Archuleta “does not meet the criteria for civil

commitment to an institution for the mentally ill” because he “does not currently

pose a substantial danger of physical injury to himself . . . or others.” Id. at 12.




                                          -5-
      W ith regard to the second factor, whether administration of drugs w ill

restore Archuleta to competency to stand trial and whether such drugs are

substantially likely to have side effects, Dr. W atabe concluded “with a reasonable

medical certainty that administration of antipsychotic medication is substantially

likely to render M r. Archuleta competent to stand trial.” Id. The basis for that

conclusion was: (1) Archuleta’s past experience with antipsychotic medication

reveals that he was previously restored to competency on two occasions, once in

1998 and again in 1999; (2) he has a “well-documented history of resolution of

his psychotic symptoms as a result of treatment with antipsychotic medications”

such as Prolixin in 1998 and Risperdal in 2003; and (3) there is “no indication of

any cognitive deficit that would prevent restoration to competence once M r.

Archuleta’s psychotic symptoms are treated.” Id. at 12-13.

      Dr. W atabe also concluded “with reasonable medical certainty that

treatment with antipsychotic medications is substantially unlikely to have side

effects that will interfere significantly with M r. Archuleta’s ability to assist

counsel in conducting a trial defense.” Id. at 13. This conclusion was based upon

the fact that Archuleta has “no history of side effects from the antipsychotic

medications (Prolixin, Risperdal) previously used to treat his psychosis,” the fact

that his medical records document his willingness to take medications and that he

has never required large doses of medication to adequately treat his psychosis and

restore him to competency. Id.

                                           -6-
      W ith respect to the third factor, whether adequate alternative treatments

exist, Dr. W atabe opined “w ith reasonable medical certainty that involuntary

medication is necessary to restore M r. Archuleta to competency” because (1)

“[t]here are no alternative, less intrusive treatments likely to achieve substantially

the same results as antipsychotic medications”; and (2) there is no less intrusive

means for administering drugs given that Archuleta “insists he has no mental

illness” and that “he will refuse all antipsychotic medications, even in the face of

contempt of court.” Id. at 14.

      Regarding the fourth factor, whether the administration of antipsychotic

drugs is medically appropriate, Dr. W atabe opined “with reasonable medical

certainty” that Archuleta should be treated with antipsychotic medications

because it is the treatment of choice for schizophrenia and that “all other

treatm ent interventions such as psychotherapy are minimally effective.” Id. H e

further concluded that, while such treatment might exacerbate Archuleta’s

diabetes, that side effect could likely be medically controlled.

      In June 2006, the court noted that the involuntary medication evaluation

had been completed and scheduled a hearing on the question of whether to order

such involuntary medication. The hearing took place in A ugust 2006. The court

admitted as evidence a letter from Archuleta, Dr. W atabe’s report, and the

forensic evaluation by Jasmine Tehrani. Additionally, Dr. W atabe testified at the

hearing.

                                          -7-
      In addition to confirming his findings and conclusions contained in his

report, D r. Watabe testified about the four-part analysis required by Sell. He

testified that he did not believe that the criteria for civil commitment applied to

Archuleta because he was “relatively stable in terms of dangerousness” to himself

or others. Tr. of Hr’g at 19-20, R. Vol. II. The doctor concluded, however, that,

although he did not evaluate Archuleta’s long-term risk of violence, given

Archuleta’s history of assaults, drug and alcohol abuse, paranoia regarding the

government, threats to government officials, and his conduct in attempting to

purchase a weapon, he believed Archuleta’s long-term risk of assaultive conduct

was “moderate to high.” Id. at 21. Regarding the likelihood that antipsychotic

medication would render Archuleta competent to stand trial, Dr. W atabe estimated

that with medication Archuleta’s “psychotic symptoms would begin resolving

within a few weeks, and probably within three to six months.” Id. at 23.

      Dr. W atabe also testified about improvements in medications, such that the

newer ones had fewer side effects. Further, he noted that Archuleta had taken

various medications with no side effects and that, in fact, Archuleta had made “an

explicit denial of side effects.” Id. at 25. As to alternative treatments, Dr.

W atabe testified there were no other means to restore competency, and, as to the

medical appropriateness of medication, the doctor stated that “antipsychotic

medication is the standard of care for psychosis, and in M r. Archuleta’s case,

schizophrenia, it is the only effective treatment for it.” Id. at 28.

                                           -8-
      The district court thereafter made its findings of fact and conclusions of

law . It found “by a preponderance of the evidence that [Archuleta] is

incompetent to stand trial consistent with the reasons and analysis set forth in

Dr. Tehrani’s report.” O rder at 4, R. Vol. I. The court then turned to an analysis

of whether involuntary medication to restore Archuleta’s competency was

required. Follow ing our instructions in M orrison, the district court first

considered whether involuntary medication could be justified under the analysis

of W ashington v. Harper, 494 U.S. 210 (1990). In Harper, the “Court . . . held

that it is permissible to administer antipsychotic drugs involuntarily to a prison

inmate with a serious mental illness ‘if the inmate is dangerous to himself or

others and the treatment is in the inmate’s medical interest.’” M orrison, 415 F.3d

at 1182 (quoting Harper, 494 U.S. at 227). The court relied upon Dr. W atabe’s

report and testimony to agree with the government that Archuleta “does not

presently pose a substantial risk of harm to himself or others, nor is his health

gravely at risk without medication.” O rder at 4, R. Vol. I.

      The court then considered whether involuntary medication was justified

under Sell. Applying the four Sell factors, the district court found “by clear and

convincing evidence” that involuntary medication should be ordered while

Archuleta was hospitalized for competency restoration. Id. W ith regard to the

first factor, the court concluded there were “important governmental interests . . .

in bringing [Archuleta] to trial,” id. at 5, and that “‘[t]he Government’s interest in

                                          -9-
bringing to trial an individual accused of a serious crime is important’ because

‘the Government seeks to protect through application of the criminal law the basic

human need for security.’” Id. (quoting Sell, 539 U.S. at 180-81).

      As part of this factor, the Court in Sell noted that courts “must consider the

facts of the individual case in evaluating the Government’s interest in

prosecution. Special circumstances may lessen the importance of that interest.”

Sell, 539 U.S. at 180. One such special circumstance is “the possibility that the

defendant has already been confined for a significant amount of time.” Id.; see

also United States v. Bradley, 417 F.3d 1107, 1116 (10th Cir. 2005) (“[W]hen the

amount of time the defendant is confined pending determination of competency is

in parity with the expected sentence in the criminal proceeding, the Government

may no longer be able to claim an important interest in the prosecution.”). In this

case, the district court noted that the statute Archuleta allegedly violated, 18

U.S.C. § 924(a)(6), carried a ten-year maximum sentence. Further, even though

the sentencing range under the United States Sentencing Commission, Guidelines

M anual (“USSG ”) was probably from six to twelve months or, at worst, from

twelve to sixteen months, the court compared Archuleta’s time spent already in

custody to the ten-year statutory maximum. Thus, although Archuleta had spent




                                         -10-
approximately a year in custody, the court determined that that time was not in

parity with the expected sentence. 1

      Turning to the second and third Sell factors, the district court concluded

that involuntary medication of Archuleta would result in the restoration of his

competency without side effects that would interfere with his ability to assist trial

counsel in his defense. The court also concluded that no other less intrusive

means w ould achieve substantially the same results. Finally, applying the fourth

Sell factor, the court concluded that administration of antipsychotic medication

was medically appropriate and in the best interest of Archuleta.

      Archuleta appeals, arguing the court erred in its determination that

involuntary medication was warranted. He argues that the government’s interest

in prosecuting him is lessened by the negative effects he will suffer because of

long-term forced medication and because he has already served time comparable

to what he would be sentenced to serve under the Guidelines.




      1
       Even if the proper comparison was between the expected sentence under
the Guidelines and time spent in custody, the district court noted that “a
reasonable sentence would be in excess of predicted sentencing guidelines that
may apply to the defendant.” O rder at 5, R. Vol. I.

                                         -11-
                                   D ISC USSIO N

      Because the Supreme Court in Sell specified “neither a standard of proof

for the Sell factors nor a standard of appellate review, Bradley, 417 F.3d at 1113,

we have stated the applicable standards as follow s:

      ‘W hether the Government’s asserted interest is important is a legal
      question.’ . . . W e would expand the parameters of the legal question
      to include whether involuntary administration of antipsychotic drugs
      ‘is necessary significantly to further important governmental trial-
      related interests. In other words, ‘[h]as the Government, in light of
      the efficacy, the side effects, the possible alternatives, and the
      medical appropriateness of a particular course of antipsychotic
      treatment, shown a need for that treatment sufficiently important to
      overcome the individual’s protected interest in refusing it?’ . . .
      [T]he remaining Sell factors depend upon factual findings and ought
      to be proved by the government by clear and convincing
      evidence. . . . We review conclusions of law de novo and findings of
      fact for clear error.

Id. at 1113-14 (quoting United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004),

and Sell, 539 U.S. at 179, 183); see also United States v. Evans, 404 F.3d 227,

236 (4th Cir. 2005).

      W e have carefully reviewed the district court’s opinion, and we conclude

that its analysis of the four Sell factors is thorough and correct. Its legal

conclusion that the governmental interest in prosecuting Archuleta is strong and

undiminished by any special circumstance is correct. W hile Archuleta argues that

we should consider a potential Guideline sentence when comparing time already

spent in custody with Archuleta’s likely sentence, we agree with the district court

that the appropriate comparison is to the statutory maximum, ten years in this

                                         -12-
case. See Bradley, 417 F.3d at 1117. The court’s factual findings relating to the

other Sell factors are not clearly erroneous. W e thus agree that forcible

medication to restore Archuleta’s competency is appropriate.



                                  C ON CLU SIO N

      For the foregoing reasons, the district court’s order is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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