                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-4025


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:   December 9, 2014                Decided:   January 16, 2015


Before WILKINSON, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles Burnham, BURNHAM & GOROKHOV, PLLC, Washington,
D.C., for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.    ON BRIEF:
Eugene V. Gorokhov, Ziran Zhang, BURNHAM & GOROKHOV, PLLC,
Washington, D.C., for Appellant. Dana J. Boente, United States
Attorney, Lisa L. Owings, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Frank Chatmon claims that the district court clearly erred

when it found the government had proved by clear and convincing

evidence   that     there   were    no    less   intrusive     alternatives       to

forcible medication to restore Chatmon to competency for trial.

We disagree, and hereby affirm the district court’s judgment.

                                         I.

                                         A.

    The procedural history here is lengthy, but it makes sense

to begin discussion with the prior appeal and our remand. 1 In

2013,    Chatmon    appealed    a    district    court      order    that   he   be

involuntarily medicated to restore his competency for trial. See

United States v. Chatmon, 718 F.3d 369 (4th Cir. 2013). Chatmon,

who was charged with conspiracy to distribute heroin and cocaine

in violation of 21 U.S.C. §§ 841(a)(1) and 846, suffers from

paranoid schizophrenia. A competency evaluation by psychologists

at Federal Medical Center, Butner (“Butner”), found that his

mental   illness    rendered    him      incompetent   to    stand    trial.     The

district    court     ordered       hospitalization      and        treatment    to

determine whether Chatmon could be restored to competency. The

     1
       The defendant attempts to raise due process and Speedy
Trial claims in this appeal. However, the case law is clear that
there is no irreparable injury here because these claims can be
reviewed adequately after final judgment. See United States v.
MacDonald,435 U.S. 850, 860-61 (1978); United States v.
Buchanan, 946 F.2d 325, 327 (4th Cir. 1991).


                                          2
resulting      report    found      a   “‘substantial        probability        that   Mr.

Chatmon’s competency can be restored with a period of treatment

with      haloperidol         decanoate,’          a     type     of     antipsychotic

medication.” Chatmon, 718 F.3d at 372. The government moved to

involuntarily       medicate        Chatmon.       The   district      court,    after   a

hearing, granted that motion, and Chatmon appealed.

       On appeal, Chatmon challenged the district court’s analysis

under the four-part Sell standard for involuntary medication.

See United States v. Sell, 539 U.S. 166, 180-81 (2003). The Sell

test is designed to ensure that forcible medication orders are

properly evaluated and infrequently employed, in recognition of

the serious intrusion such orders impose on personal liberty and

the risk that the medications pose to a defendant’s physical and

mental    health.       See   Chatmon,       718    F.3d    at   373-74.     Sell      thus

requires (1) that the case involve an “important governmental

interest[]” that is not lessened by special circumstances; (2)

that     there     is   a     substantial        likelihood      of     rendering      the

defendant      competent       to    stand       trial     through     the   treatment,

without    a     substantial     likelihood         of   side    effects     that   would

independently defeat competency; (3) that involuntary medication

is “necessary to further the government’s interests, and less

intrusive means [are] unlikely to achieve substantially the same

results”; and (4) that the treatment is “medically appropriate

and in the patient’s best medical interests.” United States v.

                                             3
White,      620   F.3d     401,   410   (4th        Cir.   2010)    (emphasis    omitted)

(citing Sell, 539 U.S. at 180-81).

      Upon examination, we found the district court’s application

of    the    first,       second,     and    fourth        Sell    factors    sufficient.

However, the third factor of less intrusive means, which the

district       court      addressed     only       summarily,      required    additional

attention.        Specifically,         Chatmon        had    suggested       that    group

therapy or continued residence in an open population might be

sufficient to restore his competency for trial. See Chatmon, 718

F.3d at 376. We vacated and remanded so that the district court

might “consider and evaluate less restrictive means that Chatmon

plausibly suggests for restoring him to competency.” Id. at 376-

77.

                                               B.

      On remand, the district court ordered the defendant to take

his medication or be held in civil contempt consistent with this

court’s suggestion. See id. at 375-76. The penalty for contempt

was set at thirty days’ imprisonment at Butner, during which

time Chatmon was to be offered the medication daily. Agreeing to

take the medication during the thirty day period would lift the

penalty for contempt. Thus for thirty days, the medication was

offered, but the defendant declined it. The district court thus

ruled    out      civil    contempt     as     a    viable    alternative      to    forced

medication.

                                               4
       Having    eliminated            civil   contempt,       the    district     court

reviewed additional deposition testimony taken by the government

on   October    9,   2013,     from      two   doctors    on    Chatmon’s   treatment

team: Dr. Angela Walden Weaver, a psychologist, and Dr. Robert

Lucking, a psychiatrist. These experts had personal interactions

with Chatmon during his time at Butner. The doctors acknowledged

the improvements in Chatmon’s behavior once he was moved to the

open population, which permitted him to exercise regularly and

even   take     on   a   job      in    the    facility’s      vocational   workshop.

However, both doctors emphasized that such changes in behavior

were   not    the    same    as    improved        competency    or   mental     health.

Neither recommended any alterations in Chatmon’s diagnosis or

treatment plan as a result of his behavioral improvements.

       Both experts were likewise insistent that although other

treatment options, such as group therapy and exercise, could be

beneficial      as   supplemental         treatments     to     alleviate   symptoms,

they were not -- by themselves -- effective treatment options

for psychosis. To support this conclusion, they pointed out that

Chatmon’s ability to engage in any of these treatment options

varied with his mental and physical health. Chatmon had turned

down opportunities to participate in group therapy options, had

long refused to sign the waiver that would permit him to exit

the Restricted Movement Unit into the open population, and had

injured his leg at one point such that he was unable to exercise

                                               5
for a time. The only effective means of restoring competency,

the doctors agreed, was medicating Chatmon with haloperidol, a

low-dosage long-acting antipsychotic drug. Tellingly, although

the defense protested the conclusions in the doctors’ testimony,

it presented no rebuttal expert of its own.

       The district court reviewed this testimony and concluded

that the government had presented clear and convincing evidence

that no less intrusive means were available to restore Chatmon

to     competency.       It      specifically       noted    that       the     doctors’

testimony, which it found persuasive, had acknowledged Chatmon’s

behavioral improvements since entering the open population and

yet still concluded -- as the December 2011 report had -- that

only    medication       could     restore       Chatmon    to   competency.          While

alternatives such as group therapy and placement in the open

prison population might be used to improve Chatmon’s behavior,

the     court        accepted     the    doctors’      expert       testimony          that

“behavioral improvements cannot be conflated with improvements

in competency.” J.A. 467 (district court order). Having found

that the government had presented clear and convincing evidence

that    the     suggested       treatment    alternatives        had    not    yet    made

Chatmon competent and would not be sufficient to restore him to

competency       in    the    future    without    medication,         the    court    then

ordered       that    Chatmon     be    forcibly     medicated.         The    defendant

appealed.

                                             6
                                            II.

        We can find no error in the proceeding below. The trial

court did not misapprehend the burden of proof, which belonged

with the government; or the standard of proof, which is clear

and convincing evidence; or the purpose of the hearing, which

was     to   determine      whether         there       was   any      less   intrusive

alternative to medication for restoring Chatmon to competency.

Moreover, the district court held a hearing, took testimony, and

made     careful      findings.     It      examined       less     intrusive       means,

including      placing    Chatmon      in    open       confinement.     He   has     been

housed in open confinement for over two years thus far, without

improving      sufficiently       to        stand       trial.     Contrary     to     the

defendant’s contentions, the district court and expert witnesses

did    not   confuse     mental   illness         and   competency.      It   was    clear

throughout that the question was competency to stand trial. The

defendant did not even attempt to rebut the government’s expert

testimony, despite being given ample opportunity to do so.

       The parties skirmish over how proceedings may unfold from

this point forward. But any remaining issues are in the first

instance within the province of the trial court. In this case,

we find that our mandate was observed and that the district

court    did    not    clearly    err       in     finding       the   government      had

satisfied the third element of the Sell test.

                                                                                AFFIRMED

                                             7
