                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-4725


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

FRANK CHATMON,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:10-cr-00477-CMH-7)


Argued:   May 15, 2013                     Decided:   June 10, 2013


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Vacated and remanded by published opinion.       Judge Wilkinson
wrote the opinion, in which Judge Motz and Judge Shedd joined.


ARGUED:   Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant.   Lisa Owings, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Eugene
V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Neil H. MacBride, United States Attorney,
Sean P. Tonolli, Assistant United States Attorney, Scott B.
Nussbum, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

       After      his    indictment     for        conspiracy         to   distribute       crack

cocaine and heroin, appellant Frank Chatmon was diagnosed with

paranoid schizophrenia and deemed incompetent to stand trial.

The    government         then      filed     a       motion     seeking       permission      to

forcibly medicate Chatmon in order to restore him to competency,

which the district court granted.

       In   doing       so,   the    district          court    purported      to    apply    the

standard mandated in Sell v. United States, 539 U.S. 166, 181

(2003).       That standard permits involuntary medication for trial

competency purposes if, inter alia, “less intrusive treatments

are unlikely to achieve substantially the same results.”                                      Id.

The    district      court      found   this          criterion       satisfied,         summarily

stating that “involuntary drugging [is] necessary because there

is no less intrusive means shown to be available.”                                  In reaching

that conclusion, however, the court did not mention or analyze

any of the less intrusive alternatives suggested by the Supreme

Court in Sell or by Chatmon himself.                           Because careful findings

concerning        the     availability            of     less        intrusive      means     are

necessary      to       vindicate     the     Supreme          Court’s       admonition      that

forcible medication motions should be carefully scrutinized due

to    their    impact      on    personal         liberty,      see    id.    at    180-81,    we

vacate      the     district        court’s       order        and    remand       for    further

proceedings.

                                                  2
                                          I.

                                          A.

      In December 2010, Chatmon was arrested and charged with

conspiracy to distribute 280 grams or more of crack cocaine and

100    grams     or    more    of   heroin,      in     violation             of   21    U.S.C.

§§ 841(a)(1)      and    846.       Before     he      could       be    tried      on     these

charges,       Chatmon’s       attorney      expressed         concern             about    his

psychological condition, declaring to the district court that

Chatmon’s “mental state has deteriorated to the point where I

feel he doesn’t understand what’s going on anymore.”                                Chatmon’s

attorney       thus    filed    a   motion     seeking         a    formal         competency

evaluation under 18 U.S.C. § 4241(a).

      The   district      court     granted      the    motion          and    ordered     that

Chatmon be evaluated at the Butner Federal Medical Center in

North Carolina.         Pursuant to that order, Chatmon was transferred

to    Butner    from     his    jail    cell     in    Alexandria,             Virginia     for

evaluation by a staff psychologist in May and June 2011.                                     The

psychologist’s        report    diagnosed        Chatmon       with       “Schizophrenia,

Paranoid Type” and described several of his symptoms, including

the fact that he heard voices in his head and his beliefs that a

satellite was attached to his brain and that his thoughts were

being manipulated via remote control.                   The report concluded with

the   opinion     that   Chatmon       suffers    from     a   mental          disease     that

                                           3
renders him “unable to understand the nature and consequences of

the proceedings against him or assist counsel in his defense.”

     Based on these unchallenged findings, the district court

deemed Chatmon incompetent to stand trial and ordered that he be

returned     to    Butner     for    hospitalization           and    treatment         to

determine whether he might be restored to competency such that

the criminal proceedings could go forward.                       See 18 U.S.C. §

4241(d).     Chatmon was accordingly transferred back to Butner for

a competency restoration evaluation in September 2011.

     Upon    his   return     to    Butner,        Chatmon    was    placed       in   the

facility’s Restrictive Movement Unit (“RMU”), a unit in which

individuals are held in solitary confinement in cells for all

but one hour of the day.            Chatmon was housed in the RMU during

the entire period in which his competency restoration evaluation

was performed.       That evaluation was conducted by three Butner

employees:     Samantha       DiMisa,    a     psychology        intern       who      was

Chatmon’s     primary       evaluator;       Dr.     Angela     Weaver,       a     staff

psychologist who supervised DiMisa; and Dr. Robert Lucking, a

staff   psychiatrist        who    interviewed       Chatmon    once    to        discuss

antipsychotic medication.           Together, the three produced a report

on December 9, 2011.              The report confirmed Chatmon’s initial

diagnosis of paranoid schizophrenia and identified symptoms such

as   paranoid      ideation,        auditory       hallucinations,        delusional

beliefs,    hostility,      and    tangential       conversation.         The      report

                                         4
also observed that Chatmon “denied having a mental illness and

would not consent to treatment with psychotropic medication.”

Finally,     the   report    expressed       the     evaluators’       shared    opinion

that although Chatmon remained incompetent for trial, there is a

“substantial probability that Mr. Chatmon’s competency can be

restored with a period of treatment with haloperidol decanoate,”

a type of antipsychotic medication.

      On     December     20,      2011      (eleven        days     after      Chatmon’s

competency restoration report had been completed but before it

had   been    submitted      to    the     parties     or    the   district      court),

Chatmon was transferred from the RMU to an open population unit

within Butner where he was able to move freely in and out of his

cell and interact with other inmates. Chatmon had previously

made multiple requests to be transferred into such a unit, but

each had been rejected.                 According to DiMisa, the reasons for

allowing     the    transfer      were     that    Chatmon     had     begun     to   show

“greater engagement” with Butner staff members and that he had

completed paperwork that he had previously refused to sign.

      Chatmon      demonstrated         notable    improvement       in   his   behavior

while in the open unit.            DiMisa testified that when she met with

him two weeks after his transfer, on January 5, 2012, Chatmon

was   more    responsive     to     her     redirection       during      conversation,

visited      the   library        and    exercised     regularly,         had    a    good

relationship with his roommate, and expressed the desire to take

                                            5
a GED class and work in the kitchen.                      In DiMisa’s opinion,

Chatmon   had        “adjusted     well   when       transferred    to   the   open

population.”         DiMisa also noted, however, that “just because

someone becomes better able to manage their behavior does not

necessarily indicate that [they are] competent” to stand trial.

Still, notwithstanding Chatmon’s progress, Butner staff did not

conduct any additional evaluation of his competency and instead

submitted the December 9, 2011 report to the parties and the

district court on January 10, 2012.

                                          B.

     Based      on     the    findings    in     the    December     report,   the

government filed a motion for permission to forcibly medicate

Chatmon in February 2012.            The district court held a hearing on

the motion on August 29.

     During the hearing, the district court began its analysis

by identifying the four-part standard provided by Sell v. United

States,   539    U.S.        166   (2003),     for    determining    whether   the

government may involuntarily medicate a defendant in order to

restore him to competency for trial. 1                  As relevant to the two


     1
       The government has made no contention that Chatmon is
dangerous to others, which would remove this case from the Sell
framework discussed herein. See 539 U.S. at 181-82 (discussing
Washington v. Harper, 494 U.S. 210, 225-26 (1990), which
recognized the government’s important interest in medicating
prisoners who pose a danger to themselves or to others).



                                          6
elements at issue in this appeal, the court found first that the

government had shown an important interest in medicating Chatmon

because     he       had     been    charged     with     “one    of   the    most     serious

offenses that can be committed,” a drug offense punishable by a

term of up to life in prison.                          See id. at 180.             Second, the

court      stated       that    “involuntary           drugging    would      be     necessary

because there is no less intrusive means shown to be available.”

See   id.       at    181.      In       reaching     that   conclusion,       however,    the

district court did not address a particular alternative required

by Sell: “a court order to the defendant backed by the contempt

power.”          Id.       Nor did the court discuss two less intrusive

treatments           proposed       by   Chatmon:      group   therapy       and    permitting

Chatmon         to     remain       in    an    open    unit     rather      than     solitary

confinement. 2             The court nonetheless issued an order permitting

the   government           to   medicate        Chatmon      against    his    will,     which

Chatmon now appeals.



                                                II.

          The    question       of       when   the    government      may    involuntarily

administer psychotropic drugs to a defendant for the purpose of

      2
       According to Chatmon’s counsel, after Chatmon’s competency
restoration evaluation was completed (and after he had made
progress while being housed in Butner’s open unit), Chatmon was
returned   to  jail   in  Alexandria   and  placed   in  solitary
confinement, where his mental health again deteriorated.



                                                 7
rendering       him   competent        to   stand     trial    entails           a    difficult

balance    between       the     defendant’s        interest       in      refusing         mind-

altering       medication       and    society’s      interest         in    bringing          the

accused    to    trial.         The   Supreme    Court    recognized             the       weighty

concerns on both sides of this balance in Sell, noting that

while      individual           defendants          possess        a        “‘significant’

constitutionally protected ‘liberty interest’ in ‘avoiding the

unwanted administration of antipsychotic drugs,’” so too does

the government possess an “important” interest in “protect[ing]

through application of the criminal law the basic human need for

security.”       539 U.S. at 178, 180 (quoting Washington v. Harper,

494 U.S. 210, 221 (1990)).

     Our own cases have conveyed the same point.                                      In United

States    v.    White,     for       example,    we   characterized              recourse      to

forced    medication      as     a    “drastic   resort”      that,         if       allowed    to

become “routine,” could threaten an elementary “imperative of

individual liberty.”             620 F.3d 401, 422 (4th Cir. 2010).                            We

also acknowledged, however, that “when an individual is alleged

to have committed a serious crime,” the individual may in some

cases    “forfeit[]       her    liberty     interest     .    .       .    to       the    extent

necessary for the government to bring her to trial.” Id. at 409.

     The crux of the matter, then, is how to reconcile these

competing individual and societal interests so as to know which

cases warrant the serious intervention of forced medication and

                                             8
which do not.    Courts are guided in this process by the four-

part test announced in Sell, which we have described as follows:

     First, the government must show that “important
     governmental interests are at stake” and that special
     circumstances do not sufficiently mitigate those
     interests. Sell, 539 U.S. at 180. Second, involuntary
     medication must significantly further the government's
     interests by making it “substantially likely to render
     the   defendant   competent   to  stand   trial”   and
     “substantially unlikely to have side effects that will
     interfere significantly with the defendant’s ability
     to assist counsel” at trial. Id. at 181. Third, the
     involuntary medication must be necessary to further
     the government’s interests, and less intrusive means
     must be unlikely to achieve substantially the same
     results. Id. And last, the court must conclude that
     the administration of drugs is medically appropriate
     and in the patient’s best medical interests in light
     of her medical condition. Id.

White, 620 F.3d at 410.      The government must establish each

element of this test by clear and convincing evidence.     United

States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009).

     In applying the Sell test, we note that circuit courts have

upheld involuntary medication orders on prior occasions.      See,

e.g., United States v. Green, 532 F.3d 538 (6th Cir. 2008);

United States v. Bradley, 417 F.3d 1107 (10th Cir. 2005).      But

we have never departed from the recognition that such orders are

a tool that must not be casually deployed, for forced medication

is a serious intrusion upon the integrity of the individual and

the effects of such medication upon body and mind are often

difficult to foresee.    See White, 620 F.3d at 422 (Keenan, J.,

concurring).    While involuntary medication orders may sometimes

                                9
be necessary, they carry an unsavory pedigree.                          See Harper, 494

U.S.    at    229-30     (describing       how        forced         administration        of

antipsychotic    medication        can    have       “serious,        even    fatal      side

effects,” such as cardiac dysfunction and tardive dyskinesia, a

neurological disorder in 10% to 25% of patients characterized by

“uncontrollable        movements    of    various       muscles”).            With       this

understanding     of     the    legal    framework,             we   turn    now    to     the

application of the Sell test to Chatmon’s case.



                                         III.

                                          A.

       Chatmon argues first that the district court incorrectly

deemed his drug trafficking charge a “serious” crime, a ruling

that    (if   correct)     gives     rise       to     an       important      government

interest.     See Sell, 539 U.S. at 180 (“The Government’s interest

in bringing to trial an individual accused of a serious crime is

important.”).            Unfortunately          for     Chatmon,            the     central

consideration    when     determining       whether         a    particular        crime    is

serious enough to satisfy this factor is the “maximum penalty

authorized by statute.”            United States v. Evans, 404 F.3d 227,

237 (4th Cir. 2005).           For example, we held in White that certain

offenses were “serious” because they exposed a defendant to a

maximum prison term of “over ten years.”                         620 F.3d at 410-11.

That Chatmon has been accused of a serious crime is thus clear

                                          10
because the offense with which he is charged carries the highest

possible    maximum      prison        term:    life      imprisonment.            21    U.S.C.

§ 841(b)(1)(A).        The seriousness of Chatmon’s charged offense is

also     reinforced      by      the    fact    that       § 841(b)(1)(A)          imposes      a

mandatory minimum of ten years, which rises to twenty years if

the     defendant     has     a    prior     felony        drug      conviction,        as     the

government contends is true of Chatmon.

       Chatmon responds that the maximum statutory prison term for

his drug trafficking charge is of no consequence because Sell

commands    that    in    order        to   constitute         a    “serious      crime,”      the

offense must be against “persons” or “property.”                                  Appellant’s

Br. 22.     But that is not the law.                Indeed, we expressly rejected

this argument in Evans, where we held that Sell’s mention of

serious crimes “against the person or . . . against property”

does not “impose[] the additional requirement that the crime

also be against either [a] person or property in order to be a

‘serious’ one.”          404 F.3d at 237 n.6.                       Other circuits agree.

See, e.g., United States v. Green, 532 F.3d 538, 550 (6th Cir.

2008).      Instead,        as    we    explained        in    Evans,       the   Sell       Court

mentioned     crimes          against       persons           and     property      for        the

unexceptional purpose of highlighting that those were the type

of charges that Sell himself faced.                      404 F.3d at 237 n.6.

       Finally,     Chatmon       points       to   no    special         circumstance       that

would    mitigate     the     government’s          interest         in    bringing      him    to

                                               11
trial.      Sell, 539 U.S. at 180.          Chatmon’s case, for example, is

unlike White because the defendant in that case faced a likely

prison sentence of approximately 42-51 months if convicted --

and would have already served more than that amount by the time

of trial.      620 F.3d at 418.        Here, by contrast, Chatmon faces a

potential mandatory minimum of twenty years if convicted, and

has been confined to date for but a fraction of that time --

roughly two and a half years.                Furthermore, as the government

notes,      this   is   likely   not    a     case   where    its    interest    in

prosecuting Chatmon could be assuaged through a civil commitment

order because Chatmon has not been found to pose the risk of

injury to others necessary to warrant such commitment under 18

U.S.C. § 4246(d).        We therefore reject Chatmon’s contention that

the government has no important interest at stake in his case.

                                        B.

      We turn now to Chatmon’s challenge relating to the third

Sell factor, the existence of means for restoring a defendant to

competency less intrusive than involuntary medication.                     539 U.S.

at   181.      Appellate    courts     have    reviewed   a    district     court’s

findings on this factor for clear error.                      See, e.g., United

States v. Fazio, 599 F.3d 835, 839-40 (8th Cir. 2010).                           As

relevant here, a district court commits clear error if it takes

“an erroneous view of the controlling legal standard” or makes

factual      findings      “without     properly      taking        into    account

                                        12
substantial evidence to the contrary.”                 Miller v. Mercy Hosp.,

Inc., 720 F.2d 356, 361 (4th Cir. 1983).

      To   start,    the    district     court     misapprehended        the    legal

standard.       In   Sell,      the   Supreme      Court   explained      that    the

overarching inquiry with respect to the third factor is whether

“involuntary medication is necessary” because “alternative, less

intrusive treatments are unlikely to achieve substantially the

same results.”          539 U.S. at 181.           But Sell also contained a

specific command that must be met before a district court may

answer this inquiry in the affirmative: the court “must consider

less intrusive means for administering the drugs, e.g., a court

order to the defendant backed by the contempt power.”                      Id.; see

also, e.g., United States v. Bradley, 417 F.3d 1107, 1115-16

(10th   Cir.    2005)    (finding     third    Sell   factor     satisfied       where

court entered order requiring defendant to take medication on

threat of civil contempt).            Of course, this is not tantamount to

a requirement that a defendant must be first held in contempt in

each and every case.             This option would, however, allow the

defendant to decline at least for a period of time forcible

medication,     albeit     at   the   cost    of   confinement     or    some    other

civil sanction.

      The district court failed to heed this legal requirement.

The   court’s    discussion      of   less    intrusive    means    at    Chatmon’s

hearing was limited to the summary conclusion that “involuntary

                                         13
drugging would be necessary because there is no less intrusive

means shown to be available.”                     The district court entered a

written order confirming this ruling a week later, but it was

just as brief, declaring simply that “involuntary medication of

the defendant is necessary to further the government’s interests

and any alternative, less intrusive treatments are unlikely to

achieve substantially the same result.”                          At no point did the

court    acknowledge        Sell’s    requirement         that    it        “must   consider”

less intrusive means for administering Chatmon medication such

as a court order backed by contempt sanctions.                               We think such

consideration requires that the court explain upon remand why

less intrusive means would prove ineffectual.

       The court also needs to account for evidence of other less

intrusive means presented by Chatmon.                      During the oral hearing

before       the   district       court,    Chatmon’s       counsel          discussed    two

alternative        means    for    restoring      Chatmon    to        competency:       group

therapy and allowing Chatmon to reside in an open population

unit    rather      than    solitary       confinement.           In    proposing        those

alternatives, counsel repeatedly referenced supportive evidence

in     the    record,       referring      in     particular           to     Ms.   DiMisa’s

deposition testimony regarding Chatmon’s improvements upon being

admitted       into     Butner’s      open        unit.          The        district     court

nevertheless        found    no    less    intrusive       means        to    be    available

without recognizing this contrary evidence or explaining why it

                                             14
might be insufficient.                 Of course, a district court need not

credit a defendant’s evidence or accept his arguments, but its

findings should offer some reason why it did not.                            Here, during

oral    argument,         the      government        candidly     conceded         that       the

district        court    offered       no   reasons     why    Chatmon’s      alternatives

might be unavailing and essentially provided “no rationale” in

support of its ruling.                 See United States v. Francis, 686 F.3d

265, 273 (4th Cir. 2012) (“A court commits clear error when it

makes findings ‘without properly taking into account substantial

evidence to the contrary.’” (quoting Miller, 720 F.2d at 361)).

       It   is     the       context    of    this      case   that     makes      supported

findings        significant.            The   need      for    such     findings      serves

typically not as a broad red light upon a judicial disposition

but    as   a    blinking       yellow.       In   a    matter    as   sensitive         as    an

involuntary medication order, which trenches upon the elemental

individual         liberty         interest        in     refusing          the     invasive

administration          of    mind-altering        medication,        the   need    to    slow

down and consider less intrusive alternatives is important.                                   Put

simply, such consideration is necessary to provide this court

with assurance that forcible medication orders, while sometimes

warranted,        will       not   become     a    device      routinely      or    casually

employed.

       Because the district court erred in its analysis of the

third Sell factor, we vacate the involuntary medication order

                                              15
and remand for further findings.                We remand because the district

court remains far better situated than we are to evaluate in the

first   instance        the     conflicting           evidence     concerning       the

availability      and   effectiveness           of    less    intrusive    means    for

restoring Chatmon to competency.

     Upon    remand,      we    note     that        the    district   court   should

consider,    as    Sell      suggests,     the       less    intrusive     option   of

ordering    Chatmon     to    take   his    prescribed        medication    with    the

backing of civil contempt sanctions.                   The district court should

also consider and evaluate less restrictive means that Chatmon

plausibly suggests for restoring him to competency.

     For the foregoing reasons, we vacate and remand for further

proceedings consistent with this decision.

                                                               VACATED AND REMANDED




                                           16
