                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0103p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 11-3736
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 DENNIS M. GRIGSBY,
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Columbus.
              No. 2:10-cr-105-1—Gregory L. Frost, District Judge.
                              Argued: October 3, 2012
                        Decided and Filed: April 11, 2013
         Before: MERRITT, McKEAGUE, and STRANCH, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Christopher K. Barnes, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL
PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Christopher K.
Barnes, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.
    STRANCH, J., delivered the opinion of the court in which, MERRITT, J., joined.
McKEAGUE, J. (pg. 20), delivered a separate dissenting opinion.
                                _________________

                                     OPINION
                                _________________

       JANE B. STRANCH, Circuit Judge. Dennis Grigsby, an Ohio pretrial detainee
diagnosed with paranoid schizophrenia, appeals from the district court’s order entered
under Sell v. United States, 539 U.S. 166 (2003), allowing the government to medicate
him involuntarily in an effort to restore his mental competency so that he can be


                                          1
No. 11-3736        United States v. Grigsby                                        Page 2


prosecuted on bank robbery charges. Because special circumstances unique to this case
persuade us to conclude that Grigsby’s liberty interest in avoiding involuntary
medication outweighs the government’s interest in prosecution, we REVERSE the
medication order and REMAND for further proceedings.

                           I. PROCEDURAL HISTORY

       The government charged Grigsby with three counts of unarmed bank robbery in
violation of 18 U.S.C. § 2113(a). The robberies occurred at different banks in the greater
Columbus, Ohio, area between January and March, 2010. The government alleged that
Grigsby, a middle-aged person living in homeless shelters, stole approximately
$7,482.00 from bank tellers by force, violence or intimidation. The FBI linked Grigsby
to the robberies through eyewitness identifications and physical evidence. He was
arrested and detained without bond pending trial.

       Grigsby’s counsel filed an unopposed motion pursuant to 18 U.S.C. §§ 4241(a)
& 4242 requesting mental evaluations to determine if Grigsby is competent to stand trial
and whether he was sane at the time of the offenses. The district court granted the
motion, and Grigsby was transferred to the Metropolitan Correctional Center in New
York (MCC-New York) for the evaluations.

       Two psychologists conducted the examinations and filed reports with the district
court. They diagnosed Grigsby with paranoid schizophrenia and determined that he was
not competent to stand trial. They offered contradictory findings with regard to whether
Grigsby was sane at the time of the bank robberies. The reports stated both that
Grigsby’s mental disease did not significantly interfere with his appreciation of the
wrongfulness of his acts and that there was insufficient information to opine whether
mental disease impaired Grigsby’s ability to appreciate the wrongfulness of his conduct.

       During a short competency hearing, neither party objected to the report findings
or to the district court’s decision to adopt the findings. The court committed Grigsby to
the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d)(1) in November
No. 11-3736        United States v. Grigsby                                         Page 3


2010 for a period not to exceed four months to determine whether he could be restored
to mental competency for the purpose of standing trial.

       Grigsby was evaluated at the Federal Medical Center in Butner, North Carolina
(FMC-Butner). In March 2011, Dr. Robert C. Lucking, Staff Psychiatrist, and Dr.
Angela Walden Weaver, Staff Psychologist, jointly filed a forensic evaluation with the
district court. Like the staff at MCC-New York, they found that Grigsby suffers from
paranoid schizophrenia.        Their forensic evaluation included a number of
findings, including the following. Despite relatively normal upbringing, education, and
employment, Grigsby stopped working due to “job burnout.” His criminal history
included convictions in 2006 for grand theft auto, disorderly conduct, and resisting
arrest; in 2007 for criminal trespassing; and in 2010 for resisting arrest. He served short
jail sentences for his convictions and probation violations. Grigsby was charged with
voyeurism and menacing by stalking, but was not convicted of those charges. He was
in good physical health, denied illegal drug use, never received mental health treatment
or counseling, and was not taking psychotropic medication for mental illness.

       The evaluation revealed that during interviews, Grigsby’s dress and grooming
were appropriate for the setting, his psychomotor activity was normal, his eye contact
was adequate, and his facial expression was responsive. He was oriented to person,
place, time, and circumstances; he denied suicidal, homicidal, or aggressive thoughts,
plans, or intent; and, his affect was adequate and appropriate to the content of the
conversation. Grigsby did not have any speech or language deficits, but his conversation
was not “linear, logical or goal directed.” While he denied hallucinations and delusions,
he displayed substantial evidence of thought disorder in content and form including an
extensive, but poorly organized, paranoid religious delusional system that extended to
all major functional areas of his life. Housed in an open mental health unit, Grigsby
followed the rules and procedures without any problem and was never segregated for
disciplinary reasons. He did not require restraints or seclusion and did not engage in any
conflicts with peers or staff. He socialized with his peers, but he did not volunteer to
work or participate in any activities.
No. 11-3736            United States v. Grigsby                                                   Page 4


         The forensic evaluators concluded that Grigsby did not understand the
seriousness of his legal difficulty and lacked the ability to assist his lawyer during trial
as a result of his psychotic symptoms. They also concluded that he was not capable of
waiving his constitutional rights rationally or of testifying on his own behalf.

         Grigsby refused to take oral medication to treat his schizophrenia. Because he
was not gravely disabled and did not present a danger to himself, others, or the safe and
secure operation of the facility, he did not meet the criteria for involuntary medication
under Washington v. Harper, 494 U.S. 210 (1990). Consequently, the evaluators
requested a judicial order under Sell that would authorize them to inject Grigsby
involuntarily with a first-generation antipsychotic drug, such as haloperidol (Haldol) or
fluphenazine, or a second-generation antipsychotic drug, risperidone, for the purpose of
restoring him to competency. These injectable medications can cause serious side
effects that require the administration of additional medications.1

         The evaluators opined that antipsychotic medication was substantially likely to
render Grigsby competent to stand trial and substantially unlikely to produce side effects
that would interfere with his ability to assist his attorney in preparing a defense. They
estimated that medication would have to be administered involuntarily for at least four
months to restore Grigsby’s competency. They further reported that less intrusive
treatments, such as psychotherapy, were not likely to restore Grigsby to competency, and
that antipsychotic medication was medically appropriate for Grigsby.


         1
           The record contains extensive information about the efficacy and side effects of these
medications. The primary side effects are as follows.
          The first-generation antipsychotic medications, haloperidol and fluphenazine, can cause
pseudoparkinsonism (stiffness, shuffling, tremors, slow movements, stooped posture, difficulty walking),
akathisia (an inner sense of restlessness causing continual movement, such as rocking, moving the feet,
and crossing and uncrossing the legs), and acute dystonic reactions (sustained excessive contraction of the
large muscle groups of the neck, tongue, and jaw, which produce abnormal twisting postures). Long-term
use of these drugs can cause tardive syndromes, including tardive dyskinesia (rhythmic involuntary
movements, such as grimacing or frowning, pursing or puckering the lips, chewing or clenching the jaw,
rolling the tongue, and blinking the eyes), tardive akathisia (the persistence of akathisia), and tardive
dystonia (sustained muscle contractions of the face, eyes, neck, limbs, back, or trunk). The tardive
syndromes are treated with medications, some of which have their own side effects. Tardive syndromes
may be irreversible.
          The second-generation antipsychotic medication, risperidone, can cause significant weight gain
and a moderate risk for the development of metabolic syndrome, which involves abdominal obesity, insulin
resistance, high blood pressure, and serum lipid abnormalities. If not treated, this syndrome can lead to
significant complications, such as the development of diabetes mellitus and cardiovascular disease.
No. 11-3736        United States v. Grigsby                                         Page 5


       Grigsby opposed the government’s motion seeking a judicial order. The court
held a Sell hearing. Grigsby contended there and before this court that, even if he is
rendered competent within four months, he will be required to remain on antipsychotic
medication at least until he is tried, and the longer the period to trial, the greater the
likelihood that he will develop serious side effects that will impact his ability to assist
in his own defense—a point supported by Dr. Lucking’s statistics indicating that
substantial numbers of patients develop these side effects. Grigsby expressed particular
concern about developing tardive dyskinesia, which causes “grotesque involuntary
movements,” and akathisia, which causes constant movement and an inability to remain
still. He noted his fear that these side effects would prevent him from maintaining a
dignified appearance before the jury and would make it extremely difficult for him to
assist his counsel or testify on his own behalf.

       Dr. Lucking testified at the Sell hearing that Grigsby’s thought disorder is severe
and he needs biologic treatment to restore his competency. He could not say how long
Grigsby had been psychotic or whether he had suffered one or multiple psychotic
episodes, but he surmised that this may have been the first psychotic episode to get
Grigsby into trouble. While he explained the differences between types of antipsychotic
medications and their side effects, he was not asked to specify the particular
antipsychotic drug or dose that he would administer to Grigsby, although that
information is contained in the forensic report.

       Dr. Lucking could not say how often he met with Grigsby or how much time he
spent evaluating him. He discussed the positive signs of schizophrenia—delusions,
hallucinations, cognitive disorganization, and grossly disorganized behavior—and
testified that Grigsby presented delusions and cognitive disorganization, but not
hallucinations or grossly disorganized behavior. He also listed the negative signs of
schizophrenia but indicated that paranoid schizophrenics, including Grigsby, do not have
negative symptoms. Dr. Lucking further testified that patients who are “treatment naive”
and have positive symptoms of schizophrenia, like Grigsby, tend to respond to
medications better than those patients who have experienced years of psychosis, show
No. 11-3736        United States v. Grigsby                                         Page 6


negative symptoms, and have had multiple medication failures. He believed that
Grigsby would show a positive response to medication, but he acknowledged that ten to
thirty percent of patients show little or no response and an additional thirty percent show
only a partial response. In his opinion, a thirty percent response to psychotropic
medication would be enough to render Grigsby competent.                  Until Grigsby’s
schizophrenic symptoms decrease, Dr. Lucking declined to render an opinion on whether
Grigsby can be held criminally responsible for the bank robberies.

       When asked what would happen next if Grigsby were not forcibly medicated, Dr.
Lucking stated that Grigsby would remain psychotic, and the district court would likely
require FMC-Butner to perform a risk assessment to determine whether he is a danger
to people or property. If he is found to be a danger, Dr. Lucking would ask the
government to request civil commitment of Grigsby under 18 U.S.C. § 4246. If the court
determines that Grigsby is dangerous, he could be civilly committed to a secure federal
mental health facility on an indefinite basis, unless the Bureau of Prisons is able to find
a facility, such as an adult group home, that would accept him on conditional release.
Although Grigsby did not pose a risk of harm to staff or fellow inmates at FMC-Butner,
Dr. Lucking stated that Grigsby was not necessarily fit for release into society.

       Dr. Jeffrey Smalldon, a clinical psychologist, testified on Grigsby’s behalf. He
agreed with Dr. Lucking that Grigsby suffers from a severe mental illness and that a
criminal responsibility assessment cannot be completed so long as Grigsby is mentally
incompetent. Because Dr. Smalldon is not a physician, he could not render an opinion
on whether Grigsby should receive antipsychotic medication. He recognized that
treatments less intrusive than forced medication are available, but mental health
professionals widely recognize that the efficacy of such treatments may be low without
some use of medication.

       Dr. Smalldon could not say with precision when Grigsby’s chronic mental
disorder began, but he offered an opinion, based on reasonable psychological certainty,
that Grigsby suffered from the same mental illness in early 2010 during the time period
No. 11-3736         United States v. Grigsby                                          Page 7


the bank robberies occurred. He expressed his belief that Grigsby could pursue a
defense of not guilty by reason of insanity.

        Following the Sell hearing, the district court granted the government’s motion
and ordered involuntary medication. The court stayed the order, however, and this
interlocutory appeal followed. We have jurisdiction pursuant to the collateral order
doctrine. See Sell, 539 U.S. at 177.

                                     II. ANALYSIS

        In Washington v. Harper, 494 U.S. 210, 229 (1990), the Supreme Court
recognized that forcible injection of medication into the body of a non-consenting person
“represents a substantial interference with that person’s liberty.” The Court held that due
process allows the involuntary medication of a convicted, but mentally ill, prison inmate
if medical professionals determine that the inmate is dangerous to himself or others and
that the treatment is in the inmate’s medical interest. Id. at 227. In a later case, the
Court stated that the “Fourteenth Amendment affords at least as much protection to
persons the State detains for trial” and set aside a criminal conviction where the state
court did not make sufficient findings to permit the involuntary administration of
antipsychotic medication to a defendant during trial. Riggins v. Nevada, 504 U.S. 127,
135–38 (1992).

        In Sell, the Supreme Court ruled that the Constitution allows the government to
forcibly medicate a mentally ill criminal defendant who is not a danger to himself or
others in order to render that defendant competent to stand trial for serious crimes.
539 U.S. at 169. Before administering antipsychotic medication involuntarily, the
government must prove to the district court by clear and convincing evidence that:
(1) an important governmental interest in prosecution exists; (2) involuntary medication
will significantly further the governmental interest, which requires proof both that
administration of the medication is substantially likely to render the defendant competent
to stand trial and is substantially unlikely to cause side effects that will interfere
significantly with the defendant’s ability to assist counsel in conducting the trial defense;
(3) involuntary medication is necessary to further the governmental interest; and
No. 11-3736           United States v. Grigsby                                       Page 8


(4) administration of the drugs is medically appropriate for the defendant. Id. at 180–81;
United States v. Green, 532 F.3d 538, 545 (6th Cir. 2008). The first Sell factor is a legal
question that we review de novo. Green, 532 F.3d at 546. Because the remaining three
factors involve factual findings, we review the district court’s determinations on them
for clear error. Id. at 552.

        Grigsby concedes that the government has an important interest in bringing him
to trial for a serious crime like bank robbery, see Sell, 539 U.S. at 180, and we agree with
his assessment.    There is no dispute that an important governmental interest in
prosecution exists.

        The Supreme Court authorizes a fact-intensive inquiry, however, to determine
whether there are any special circumstances that lessen the importance of the asserted
governmental interest in having a trial. See id.; United States v. White, 620 F.3d 401,
411 (4th Cir. 2010). Grigsby contends that the potential availability of lengthy civil
confinement coupled with the likelihood that, even if he is restored to competency, he
will be found not guilty of the bank robberies by reason of insanity greatly tempers the
government’s interest in prosecution.

        Indeed, the Supreme Court recognized in Sell that the “defendant’s failure to take
drugs voluntarily . . . may mean lengthy confinement in an institution for the mentally
ill—and that would diminish the risks that ordinarily attach to freeing without
punishment one who has committed a serious crime.” Sell, 539 U.S. at 180. The Court
did not suggest that civil commitment replaces prosecution; rather, the “potential for
future confinement affects, but does not totally undermine, the strength of the need for
prosecution. The same is true of the possibility that the defendant has already been
confined for a significant amount of time” for which he would receive credit toward any
sentence imposed under 18 U.S.C. § 3585(b).            Id.   Sell adds a further special
consideration that the government always has “a concomitant, constitutionally essential
interest in assuring that the defendant’s trial is a fair one.” Id. The Supreme Court set
out these particular special circumstances by way of example, see id., and “we can
discern no basis for believing that in fashioning this short list, the Sell Court intended
No. 11-3736         United States v. Grigsby                                         Page 9


that lower courts treat it as having exhausted all possible ‘special circumstances.’”
White, 620 F.3d at 411 n.8.

        Regarding the first Sell special circumstance that tempers the government’s
interest in prosecution, significant evidence was presented at the Sell hearing that
Grigsby may face a lengthy civil commitment due to his mental illness. Dr. Lucking
testified that if Grigsby is not forcibly medicated, he will remain psychotic and, if found
to be a danger, the medical staff at FMC-Butner will request civil commitment of
Grigsby under the statutory procedures outlined in 18 U.S.C. § 4246. Under that statute,
the director of FMC-Butner must certify to the district court that Grigsby, who was
committed under 18 U.S.C. § 4241(d) for a competency determination, “is presently
suffering from a mental disease or defect as a result of which his release would create
a substantial risk of bodily injury to another person or serious damage to property of
another, and that suitable arrangements for State custody and care of the person are not
available.” If, after a hearing, the district court were to determine by clear and
convincing evidence that Grigsby is suffering from a mental disease or defect and poses
a substantial risk of bodily injury or serious damage to the property of another, the court
could order Grigsby civilly committed to the custody of the Attorney General, who has
a statutory obligation to make all reasonable efforts to convince the State of Ohio to take
custody of Grigsby and find an appropriate placement for him. 18 U.S.C. § 4246(d). If
such efforts fail, the Attorney General must hospitalize Grigsby in a suitable federal
facility for the mentally ill until his “mental condition is such that . . . his conditional
release under a prescribed regimen of medical, psychiatric, or psychological care or
treatment would not create a substantial risk of bodily injury to another person or serious
damage to property of another.” 18 U.S.C. §§ 4246(d)(2), 4246(e).

        On the record before us, Grigsby may be destined for lengthy civil commitment
under § 4246. See Sell, 539 U.S. at 180. Dr. Lucking explained that Grigsby is presently
suffering from a mental disease or defect. Although Grigsby does not pose a present
danger to himself or others in the structured environment of FMC-Butner, Dr. Lucking
No. 11-3736        United States v. Grigsby                                       Page 10


opined that Grigsby is not necessarily fit for release into society. If Grigsby is not
medicated involuntarily, the next step is to consider civil commitment under § 4246.

       The district court did not specifically address Dr. Lucking’s testimony regarding
potential civil commitment under § 4246 when analyzing whether the government’s
interest in prosecution is mitigated by the special circumstance of potential lengthy civil
commitment. The court focused instead on whether Grigsby would be civilly committed
if he were ultimately found to be not guilty by reason of insanity, see 18 U.S.C. § 4243,
found the evidence inconclusive on that point and terminated its inquiry. But Sell asks
whether the special circumstance of potential for future civil confinement lessens the
importance of the government’s interest in prosecution; it posits potentiality because at
the initial stage at which this determination must be made, it cannot be definitively
established that a defendant ultimately will be found not guilty by reason of insanity.
That Grigsby potentially may be found not guilty by reason of insanity, even if he is
restored to mental competency to stand trial, is a special circumstance that should have
been fully considered in weighing the government’s interest in prosecution. See United
States v. Stephenson, No. 1:10-CR-206, 2011 WL 3738967, at *8 (W.D. Mich.
Aug. 23, 2011); United States v. Walton, No. 08–20599–BC, 2009 WL 3562507, *2
(E.D. Mich. Oct. 28, 2009)(recognizing the special circumstance that a likelihood of a
verdict of not guilty by reason of insanity would undermine the government’s interest
in prosecution (citing United States v. Sheets, No. 3:07–CR–68, 2008 WL 4614330, at
*3 (E.D. Tenn. Oct. 15, 2008)).

       A full consideration of the potential for civil commitment under § 4243,
moreover, reveals that there is evidence in this record supporting a conclusion that
Grigsby may not have appreciated the wrongfulness of his conduct during the bank
robberies, despite other evidence indicating that Grigsby knew what he was doing was
wrong. Dr. Lucking and Dr. Smalldon agreed that Grigsby would have to be restored
to mental competency before a definitive determination could be made concerning his
sanity at the time of the offenses. Nonetheless, Dr. Smalldon highlighted Grigsby’s
severe and chronic disorder. Based on a reasonable degree of psychological certainty,
No. 11-3736        United States v. Grigsby                                       Page 11


Dr. Smalldon opined that it was highly likely Grigsby suffered from the same mental
illness when the bank robberies occurred, making him “a candidate” for the defense of
not guilty by reason of insanity. The district court did not allude to that portion of Dr.
Smalldon’s testimony in its analysis. Dr. Lucking also surmised that, because Grigsby’s
mental condition is severe, he may have experienced previous psychotic episodes, with
this one being the first to “get him into trouble.” These comments suggest a connection
between Grigsby’s psychotic episodes and the instant offenses.

       In sum, the Sell special circumstance—potential for lengthy civil commitment
of Grigsby—lessens the importance of the government’s interest in prosecution because
it reduces the risks that would normally attach if Grigsby were freed without
punishment. The district court’s opinion focused only on the possible track toward civil
commitment under § 4243 without giving any consideration to the second possible track
toward civil commitment under § 4246—the track that Dr. Lucking had noted. Section
4246 and § 4243 provide different procedures for civil commitment that may apply in
Grigsby’s case. Both of these tracks establish a special circumstance that should have
been examined.

       The dissent contends that the potential for civil commitment under either § 4246
or § 4243 is “largely speculative” and Grigsby is unlikely to prevail on an insanity
defense. Application of either § 4246 or § 4243 is a fact-specific inquiry that cannot be
resolved definitively at this point, yet Sell directs us to consider whether the
governmental interest in prosecution is affected by the potential for lengthy civil
commitment. Outcomes in similar cases before other courts depended heavily on the
specific facts in the available records.

       For example, in United States v. Gutierrez, 704 F.3d 442, 450 (5th Cir. 2013),
the defendant did not appear to be eligible for civil commitment under federal or state
law because he did not present a danger to himself or others while confined, he was not
severely disabled by mental illness, and, other than making the telephonic threats at issue
in the case, his criminal record contained no evidence of past violence. Under those
factual circumstances, the Fifth Circuit determined that the government’s interest in
No. 11-3736         United States v. Grigsby                                      Page 12


prosecution was not diminished. Id. By contrast, this record shows that Grigsby suffers
from a severely disabling mental illness, and he is charged with committing serial bank
robberies by force and intimidation. Even Dr. Lucking cautioned that Grigsby may not
be fit for return to society. These factual circumstances distinguish our case from
Gutierrez.

        In United States v. Nicklas, 623 F.3d 1175, 1178–79 (8th Cir. 2010), the
defendant argued that forcibly medicating him would place him in the same position that
he currently faced—civil commitment in a medical facility if he were found to be a
danger to others or their property. Such a result was not certain, the Eighth Circuit said,
because Nicklas confirmed that he would not present an insanity defense if brought to
trial and thus, the government’s interest in prosecution was not ameliorated. Id.
Grigsby, on the other hand, presented evidence at the Sell hearing that he likely was not
sane at the time he committed the alleged offenses and that he may have a basis for an
insanity defense. In United States v. Evans, 404 F.3d 227, 239 (4th Cir. 2005), proof
was offered that the defendant did not meet the criteria for civil commitment under
§ 4246. No similar proof was offered here. To the contrary, the government’s witness
suggested that the next step for Grigsby is a § 4246 evaluation. See also United States
v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004) (noting available psychiatric diagnosis
related to initial competency determination and not the risk Gomes might pose to other
persons or property, to be evaluated under § 4246). Cf. United States v. Bradley, 417
F.3d 1107, 1116–17 (10th Cir. 2005) (summarily rejecting potential for civil
commitment under § 4246 where treating physician reported defendant was not a threat
to self or others while in custody, despite acknowledgment that physician had not yet
fully evaluated under § 4246 whether defendant posed any risk to persons or property
outside the facility).

        These cases do not stand for a blanket rule that, short of certain proof that civil
commitment will occur, the government’s interest in prosecution is not diminished.
Instead, these cases point to the requirement in Sell that courts “must consider the facts
of the individual case in evaluating the Government’s interest in prosecution.” Sell,
No. 11-3736         United States v. Grigsby                                        Page 13


539 U.S. at 180. And this takes us back to the Supreme Court’s listing of the special
circumstances that may lessen the importance of that interest and its articulation of one
as the “potential” for future civil confinement. The Supreme Court could have required
a certainty of future civil confinement. It did not; so we should not.

        Grigsby has not yet been fully evaluated for civil commitment under the § 4246
standard, but Dr. Lucking testified at the Sell hearing that a risk assessment under § 4246
is the likely next step if Grigsby is not forcibly medicated. Dr. Lucking’s expert opinion
that Grigsby may not be fit for release into society indicates that, after a risk assessment,
the government may be able to carry its burden to prove that Grigsby presents a
“substantial risk of bodily injury to another person or serious damage to property of
another” under § 4246, even if he has been well-behaved and non-violent within the
structured detention of FMC-Butner. In addition, Dr. Smalldon testified to a reasonable
degree of psychological certainty that Grigsby may be able to raise an insanity defense.
See Thompson v. Bell, 580 F.3d 423, 440 (6th Cir. 2009) (referring to Sell as a signal
“that it may be unconstitutional to medicate a prisoner already destined for a lengthy
confinement just to render the prisoner competent for legal proceedings”).

        In addition to considering whether civil commitment is a potential outcome, we
must also examine whether the length of Grigsby’s confinement while the government
attempts to restore his competency and prosecute him may approximate the length of any
sentence of imprisonment he ultimately may receive if convicted. See Sell, 539 U.S. at
180. This analysis required by the Supreme Court is entirely separate and distinct from
determining at the outset whether the statutory maximum penalty for the crime
objectively establishes the seriousness of the crime and the government’s interest in
prosecuting it, which is not in dispute here. See Green, 532 F.3d at 546.

        The government posits that, if convicted, Grigsby would likely face an advisory
guideline range of 57 to 71 months in prison. The government estimated this range as
follows: Grigsby’s base offense level would be 20 under USSG § 2B3.1(a); two levels
would likely be added under § 2B3.1(b)(1) because money was taken during the
robberies; and three grouping levels would likely be added under USSG § 3D1.1,
No. 11-3736        United States v. Grigsby                                       Page 14


§3D1.2(d), and § 3D1.4(a) for a total offense level of 25. Even assuming Grigsby falls
within criminal history category I, the advisory guideline range would be 57 to 71
months.

       The government’s analysis is instructive because government attorneys routinely
estimate potential guideline ranges and sentences in the course of negotiating plea
agreements with defense counsel, sometimes resulting in a plea agreement for a specific
sentence or sentencing range that is binding on the sentencing court. Fed. R. Crim. P.
11(c)(1)(C). Certainly, a final guideline calculation cannot be known until a district
court announces it. But we give significant weight to the government’s estimate of
sentence length because the government advances a sentence of imprisonment as the
core reason why it wants to prosecute Grigsby. The government stands in the best
position to elucidate its prosecutorial interests. See White, 620 F.3d at 415–18
(examining likely sentence mentally ill defendant would receive under guidelines).

       To consider only the statutory maximum penalty when conducting this portion
of the Sell analysis would not be consistent with Supreme Court precedent after United
States v. Booker, 543 U.S. 220 (2005). Sentencing is based on the advisory Sentencing
Guidelines and the sentencing factors under 18 U.S.C. § 3553(a). In the ordinary case,
appellate courts apply a presumption of reasonableness to a sentence within a properly
calculated advisory guideline range that is imposed and explained in accordance with the
§ 3553(a) factors. See Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). Courts evaluate whether a
particularly harsh or lenient sentence outside the advisory guideline range is reasonable
in light of the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 46–47 (2007).
No facts in this record would support the reasonableness of a 240-month sentence upon
conviction, which would constitute an upward variance of 169 months from the top of
the government’s proposed advisory guideline range of 57 to 71 months. See United
States v. Aleo, 681 F.3d 290, 293 (6th Cir. 2012) (reversing and remanding for
resentencing because district court did not justify under the § 3553(a) factors a statutory
maximum sentence of 720 months where the advisory guideline range was 235 to 293
No. 11-3736        United States v. Grigsby                                       Page 15


months). We see no principled reason to ignore all applicable sentencing law except for
the statutory maximum penalty when considering under Sell whether the likelihood of
civil commitment will approximate the criminal sentence ultimately imposed on
conviction and thus mitigate the government’s interest in prosecution. See White,
620 F.3d at 415–18.

       The estimated guideline calculation for Grigsby’s case should also take into
account, however, the literature Dr. Lucking reviewed in the forensic evaluation
documenting that some defendants who are restored to competency by medication
ultimately plead guilty to the charges against them through plea negotiation. If we
consider that Grigsby might enter a timely guilty plea if restored to competency, thereby
earning a three-level reduction for acceptance of responsibility under USSG § 3E1.1, his
anticipated advisory guideline range would drop to 41 to 51 months.

       To compare the length of Grigsby’s potential incarceration upon conviction with
the length of any potential civil commitment, we must further take into account how long
Grigsby would have to be medicated involuntarily in order to reach competency to stand
trial. The forensic evaluation summarized psychiatric studies showing that seventy
percent of first-episode patients often can be restored to competency within three to four
months and eighty-three percent by the end of one year. The forensic evaluation report
suggested Grigsby would have to be medicated at least four months. In Dr. Lucking’s
expert opinion, Grigsby is severely disabled by mental disease and he probably
experienced other psychotic episodes before the one that led to his arrest in this case.
In light of this uncontradicted information and using the psychiatric literature in the
record as our guide, we conclude that Grigsby may well require involuntary medication
for a period of at least four and up to twelve months.

       Grigsby has been held in federal detention on the bank robbery charges since
July 2010, a period of 33 months. If his competency can be restored through forced
medication within four to twelve months, and if we take into account the time that will
be necessary to complete the prosecution (which could include further delays caused by
one or more relapses into incompetency), Grigsby may remain in federal detention for
No. 11-3736         United States v. Grigsby                                         Page 16


a period roughly equivalent to the length of any prison sentence he may ultimately
receive and for which the Bureau of Prisons is required to give him sentencing credit.
See 18 U.S.C. § 3585(b)(1)(“A defendant shall be given credit toward the service of a
term of imprisonment for any time he has spent in official detention prior to the date the
sentence commences . . . as a result of the offense for which the sentence was imposed”).
Consequently, these additional sentencing considerations also mitigate the government’s
interest in prosecution, especially in light of the Supreme Court’s comment that
instances of involuntary medication “may be rare.” Sell, 539 U.S. at 180.

        Finally, the Supreme Court identified one other special circumstance that lessens
the government’s interest in prosecution—the government’s “concomitant,
constitutionally essential interest in assuring that the defendant’s trial is a fair one.” Id.
Forcibly medicating a defendant with psychotropic drugs can burden fair trial rights by
affecting the defendant’s capacity to comprehend and react to trial events, consult with
counsel, testify, and control his behavior in front of the jury. See e.g., Riggins, 504 U.S.
at 137–38. In Sell the Supreme Court reaffirmed these concerns, observing that
“[w]hether a particular drug will tend to sedate a defendant, interfere with
communication with counsel, prevent rapid reaction to trial developments, or diminish
the ability to express emotions are matters important in determining the permissibility
of medication to restore competence.” Id. at 185.

        This aspect of the first Sell factor dovetails into the remaining three factors:
whether antipsychotic medication is substantially likely to render Grigsby competent to
stand trial and is substantially unlikely to cause side effects that will interfere
significantly with his ability to assist defense counsel; whether involuntary medication
is necessary to further the government’s interest; and whether involuntary medication
is medically appropriate for Grigsby. See id. at 181. Grigsby raises trial-related
concerns about tardive dyskinesia, which causes “grotesque involuntary movements,”
and akathisia, which causes constant movement and an inability to remain still. Should
such uncontrollable physical side effects develop, he believes they would impair his
No. 11-3736         United States v. Grigsby                                       Page 17


ability to maintain a dignified appearance before the jury and would make it difficult for
him to assist his counsel or testify in his own behalf.

        The record indicates that psychotropic medication is generally effective in
restoring competency, although Dr. Lucking testified that up to thirty percent of patients
treated with haloperidol show no response to the drug and another thirty percent show
only a partial response. When he reviewed six factors used to determine the likelihood
of an individual’s positive response to the medication, only two of those factors
suggested that Grigsby would show a positive response to medication. It is undisputed,
based on Dr. Lucking’s testimony, that thirty percent of individuals treated with
haloperidol develop pseudoparkinsonism, twenty to thirty percent develop akathisia, and
two to ten percent develop acute dystonic reactions. The irreversible condition of tardive
dyskinesia develops in eighteen to forty percent of medicated individuals.

        Even assuming the district court’s findings are correct that medication is
substantially likely to render Grigsby competent to stand trial and that such drugs are
medically appropriate for him, the record lacks clear and convincing evidence that
medication is substantially unlikely to cause side effects that will interfere significantly
with Grigsby’s ability to assist in his own defense at trial and that involuntary
medication is necessary to further the government’s lessened interest in prosecution. To
this extent the district court’s factual findings are clearly erroneous. See Green, 532
F.3d at 552.

        The dissent points to Dr. Lucking’s testimony that other medications will be used
to alleviate the side effects of psychotropic medication and that Dr. Lucking would
“cease medicating Grigsby if irreversible side effects occurred.” But by that time, it
would be too late for Grigsby. The side effects would be both evident and irreversible,
psychiatric medication would be stopped, and Grigsby probably would not be returned
to competency to stand trial after all.

        Dr. Lucking did explain that certain drugs may help relieve temporary side
effects, but not the irreversible ones, and those drugs have their own side effects,
requiring additional medications. And there is no proof that any potentially temporary
No. 11-3736        United States v. Grigsby                                      Page 18


side effects would be caught and treated early enough to avoid permanency or lasting
damage or that Grigsby could tell his counsel about any untreated side effects so that his
concerns could be brought to the attention of the court. Psychiatric professionals have
already determined that Grigsby is too mentally ill to assist in his own defense. The
record reveals no basis for the assumption that Grigsby’s defense attorney, located
hundreds of miles from his mentally ill client, would know during the period for
restoring competency whether Grigsby had developed side effects and whether the
attending physicians had taken steps to address those side effects in a timely and proper
manner.

       The Supreme Court counsels us to ask: “Has the Government, in light of the
efficacy, the side effects, the possible alternatives, and the medical appropriateness of
a particular course of antipsychotic drug treatment, shown a need for that treatment
sufficiently important to overcome the individual’s protected interest in refusing it?”
Sell, 539 U.S. at 183. On this record, our answer to the question is “no.” See Sell,
539 U.S. at 180, 183; White, 620 F.3d at 419.

                                 III. CONCLUSION

       Each involuntary medication case presents a court with the challenging task of
balancing the defendant’s fundamental constitutional right to liberty against the
government’s important interest in prosecution. A fact-intensive inquiry into the
circumstances of each defendant is necessary to determine where to strike that balance.
That inquiry entails recognition of the difficulties inherent in dealing with mentally
disabled defendants and the problems likely to be encountered when the balance favors
medication—and when it does not. It cannot be ignored that when either side wins its
position, that success is at best a mixed blessing. For a defendant, success in avoiding
forced medication means he does not receive potentially harmful—but also potentially
beneficial—medication and the cost of that avoidance may be lengthy or even lifetime
involuntary commitment to an institution for the mentally ill. For the government,
obtaining medication by force does not guarantee: return to competency for trial; or if
competency is obtained, that prosecution will be successful; or if prosecution is
No. 11-3736         United States v. Grigsby                                        Page 19


successful, that post-incarceration problems will not result in risks to society that civil
commitment might have avoided. It is not an exaggeration to suggest that there is no
adequate solution to the difficulties presented by these cases. Perhaps it is for this reason
that the Supreme Court created such a fact-intensive, balancing-of-interests standard.

        In executing the hard task of applying that standard to this case, we are mindful
that forcing psychotropic medication on a pretrial detainee “is impermissible absent a
finding of overriding justification and a determination of medical appropriateness.”
Riggins, 504 U.S. at 135. Reviewing the specific facts here in light of the standard
articulated in Sell, we find that the government did not establish that its prosecutorial
interests are sufficiently exceptional to warrant the extraordinary use of forcible
medication to render Grigsby competent to stand trial.

        Accordingly, we REVERSE the district court’s order permitting involuntary
medication and we REMAND the case for further proceedings consistent with this
opinion. On remand, we envision use of the procedures outlined in 18 U.S.C. § 4246 to
determine whether civil commitment is appropriate for Grigsby.
No. 11-3736         United States v. Grigsby                                       Page 20


                                  _________________

                                      DISSENT
                                  _________________

        McKEAGUE. Circuit Judge, dissenting. The majority rightfully concludes that
the government has an important interest in prosecuting Grigsby, but then reverses the
district court’s decision by concluding the government’s important interest is
undermined by the unique special circumstances of this case. I disagree with the
majority’s special-circumstances analysis for a number of reasons. Based upon the
record before us, involuntary civil commitment under § 4246 is largely speculative, and
though Grigsby might be able to pursue an insanity defense, he is unlikely to prevail on
that defense. In addition, because of the sheer number of assumptions in the majority’s
analysis, I disagree that Grigsby’s term of pretrial confinement is likely to exceed any
sentence he would ultimately receive. With regard to Grigsby’s fair-trial rights, the
majority’s analysis is again largely speculative—we cannot know what side effects, if
any, Grigsby will encounter until he is medicated. Further, Dr. Lucking testified that he
would attend to treatable side effects and cease medicating Grigsby if irreversible side
effects occurred. Because the government has an important interest in prosecuting the
defendant, because of the speculative nature of the special circumstances considered by
the majority, and because I find no error in the district court’s consideration of the other
Sell factors, I would affirm. I therefore respectfully dissent.
