                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 13-3281

UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                 v.


GARY DEBENEDETTO,
                                               Defendant-Appellant.

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
         No. 1:12-cr-00199 — Rubén Castillo, Chief Judge.


 SUBMITTED NOVEMBER 27, 2013 — DECIDED MARCH 3, 2014


   Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
    RIPPLE, Circuit Judge. Gary Debenedetto has been charged
in a five-count indictment with knowingly transmitting
through interstate commerce threats to injure another person,
in violation of 18 U.S.C. § 875(c). Following his arrest, the
district court ordered a mental competency evaluation and
made an initial finding that Mr. Debenedetto suffers from a
mental disease or defect that renders him mentally incompe-
tent to the extent that he is unable to understand the nature
2                                                             No. 13-3281

and consequences of the proceedings against him or to assist
in his defense. The court ordered him to be placed in a facility
pursuant to 18 U.S.C. § 4241(d) for further evaluation, and
Mr. Debenedetto was sent to the Federal Medical Facility in
Butner, North Carolina (“Butner”).
    The evaluating psychiatrist at Butner conducted additional
examinations, which led him to conclude that Mr. Debenedetto
would require involuntary treatment with psychotropic
medications to restore his competency for trial. At a follow-up
hearing, the district court considered the psychiatrist’s report
and determined that Mr. Debenedetto should be committed for
treatment, including involuntary medication, as is necessary to
attain the capacity to permit the criminal proceedings to go
forward. See 18 U.S.C. § 4241(d)(2)(A).
    Mr. Debenedetto filed a pro se appeal from the district
court’s commitment order, but after the Government notified
the court of its intent to execute promptly the district court’s
order absent an order from this court, his attorney filed both a
motion to stay the order and a motion to withdraw as counsel
from the appeal. We ordered a temporary stay of the order and
directed the Government to respond to the stay motion. After
reviewing the submissions of the parties and the transcript of
the district court hearing, we hold that the hearing and
subsequent written findings of the district court do not
constitute adequate compliance with the requirements set forth
in Sell v. United States, 539 U.S. 166 (2003).1 We therefore must

1
   Interlocutory review is appropriate to consider whether a defendant has
a legal right to avoid forced medication, and we have jurisdiction to review
                                                               (continued...)
No. 13-3281                                                                    3

vacate the court’s commitment order and remand for further
proceedings consistent with this opinion.


                                       I
    Mr. Debenedetto was arrested on April 11, 2012, on charges
that he transmitted threatening communications to various
individuals, in violation of 18 U.S.C. § 875(c). While
Mr. Debenedetto was in custody pending trial, the district
court ordered, on its own initiative, a mental competency
evaluation. Pursuant to this order, the district court received
the results of a forensic examination performed by the Metro-
politan Correctional Center in Chicago, Illinois (“MCC”), and
later conducted a hearing at which the evaluating forensic
psychologist testified. Following the hearing, the court deter-
mined that Mr. Debenedetto suffered from a mental disease or
defect that rendered him mentally incompetent to stand trial.
The district court therefore ordered that he be placed in the
custody of the Attorney General for additional mental compe-
tency evaluations.
    Four months later, the court received and reviewed the
result of a second examination performed at Butner. According
to the district court, “Dr. Robert Lucking, the evaluating
psychiatrist, opined that defendant need[ed] to be involun-
tarily treated with psychotropic medications in order to restore


1
  (...continued)
the district court’s order under the collateral order doctrine. Sell v. United
States, 539 U.S. 166, 176-77 (2003); United States v. Chavez, 734 F.3d 1247, 1249
(10th Cir. 2013).
4                                                    No. 13-3281

his competency to proceed to trial.”2 On October 8, 2013,
therefore, the Court held a hearing regarding the need to
medicate Mr. Debenedetto without his consent.
    At the hearing, Mr. Debenedetto’s attorney initially
objected to the intended course of medication. He stated that
he did not believe that “the first prong of Sell,” relating to the
importance of the Government’s interest, was met.3 He went
on to explain that he believed that Mr. Debenedetto’s guideline
range for the crimes charged would be ten to sixteen months
and that he already had been incarcerated for sixteen months.
Counsel for Mr. Debenedetto also raised concerns regarding
the effectiveness of the drugs that would be administered; he
specifically noted that “30 percent of these involuntary
medications don’t always work.”4
    In response, counsel for the Government took issue with
defense counsel’s estimated guideline range, which she
calculated to be between thirty-seven and forty-six months.
Nevertheless, the Government’s counsel acknowledged that
“[t]here is some uncertainty as [to] how Mr. Debenedetto will
take the medication and whether he will be restored [to
competency] within six months,” but noted that, “at least in the
opinion of the medical professionals at Butner, they do believe




2
    R.63 at 2.

3
    R.69 at 3.

4
    Id. at 4.
No. 13-3281                                                      5

there’s a substantial likelihood that Mr. Debenedetto can be
restored within that time.”5
    The district court never directly addressed the parties’
arguments because the court believed that defense counsel was
proposing that Mr. Debenedetto be involuntarily committed.
The court suggested that defense counsel file a written motion
to which the Government could respond. Defense counsel
asked for a short adjournment to confer with Mr. Debenedetto.
When proceedings resumed, counsel represented that
Mr. Debenedetto had agreed to go back to Butner and, “if they
feel involuntary medication is appropriate, that should be
done, but they should also review or consider less intrusive
measures other than that if appropriate or if he would agree.
And if not, they can involuntarily medicate. He’s agreed to
that.”6
    Mr. Debenedetto, however, then requested the opportunity
to speak. He stated:
         I have to, you know, ask you, okay, that I have a
         brother in California, okay, who had taken some
         psychotropic neuroleptics. Okay. He went into
         seizures, all right? They gave me an advanced,
         second-generation form of psychotropics at MCC on
         July 11th, one pill. It was called Geodon. It was the




5
    Id. at 5-6.

6
    Id. at 7.
6                                                        No. 13-3281

           most advanced, side-effect-free, okay? I fell down on
           the floor. I was in seizures for eight hours.[7]
The court responded, “[s]o you don’t want to do that again,”
and Mr. Debenedetto replied, “[e]xactly.”8
    Mr. Debenedetto also made statements that appear to
indicate his belief that medication was not necessary. He
referenced classes he had been taking at Butner that “teach
competency,” reported that he had been in law school and
explained that he was able to function in the open population
at Butner without medication.9
    The hearing concluded with the court stating that it would
“enter an appropriate order. I’m going to ask the government
to submit it. You can look at it, … and, if necessary, the
psychotropic medications will be administered, but they will
be administered in a way that is not prejudicial to
Mr. Debenedetto’s physical health.”10 The district court
subsequently entered the following finding: “Based on the
seriousness of the charged conduct in the indictment, the
reports, and the referenced studies, the facts in the instant
matter satisfy the requirements for imposition of involuntary
treatment as outlined in Sell v. United States, 539 U.S. 166,



7
     Id. at 8.

8
     Id.

9
     Id.

10
      Id. at 9.
No. 13-3281                                                      7

180-81 (2003)[] … .”11 After reiterating the requirements of Sell,
the court then ordered, in relevant part:
            1. The recommended medication be involuntarily
         administered according to the procedures recom-
         mended in the Forensic Evaluation. However, prior
         to the involuntary administration of medication, less
         intrusive measures should be considered and taken
         if deemed appropriate and available.
           2. Any recommended medication being involun-
         tarily administered should not in any way endanger
         the health of defendant.[12]
    Mr. Debenedetto filed a pro se appeal from the district
court’s commitment order, but after the Government notified
this court of its intent to execute promptly the order absent a
stay, his attorney filed a motion to stay as well as a motion to
withdraw as counsel from the appeal. We entered a temporary
stay of the order and now address the merits of the district
court’s commitment order.


                                  II
   The decision to medicate involuntarily a defendant must
balance the interests of the defendant with the interests of the
Government, and these interests differ depending on the
purpose of the medication. For instance, the Government has


11
     R.63 at 3.

12
     Id. at 4.
8                                                     No. 13-3281

a strong interest in using involuntary medication to control a
defendant who is dangerous to himself or others in order to
ensure prison safety and security. Washington v. Harper, 494
U.S. 210, 223 (1990). The Due Process Clause therefore permits
the Government to medicate involuntarily an inmate with
antipsychotic drugs against his will if he is dangerous and the
treatment is in his best interest. Id. at 227.
    When the Government seeks to medicate involuntarily a
defendant solely for the purpose of rendering the defendant
competent to stand trial, however, it must meet a higher
standard to counterbalance the defendant’s right to avoid
involuntary medication. Sell, 539 U.S. at 181-82. In Sell, the
Court set forth four findings that the district court must make
before ordering the involuntary administration of psychotropic
medication for the purpose of rendering a defendant compe-
tent to stand trial. First, the district court must determine “that
important governmental interests are at stake” based on the
facts of the individual case. Id. Second, the court must find that
the medication “is substantially likely to render the defendant
competent to stand trial” and “is substantially unlikely to have
side effects that will interfere significantly with the defendant’s
ability to assist counsel in conducting a trial defense.” Id. at
181. “Third, the court must conclude that involuntary medica-
tion is necessary to further those interests” and “that any
alternative, less intrusive treatments are unlikely to achieve
substantially the same results.” Id. “Fourth, … the court must
conclude that administration of the drugs is medically appropri-
ate, i.e., in the patient’s best medical interest in light of his
medical condition.” Id. The Government must establish each of
these conditions by clear and convincing evidence. United
No. 13-3281                                                       9

States v. Chatmon, 718 F.3d 369, 374 (4th Cir. 2013); United States
v. Ruiz-Gaxiola, 623 F.3d 684, 692 (9th Cir. 2010) (collecting
cases). We review the district court’s conclusions of law de
novo and its findings of fact for clear error. United States v.
Lyons, 733 F.3d 777, 782 (7th Cir. 2013); United States v.
Gutierrez, 704 F.3d 442, 448 (5th Cir. 2013). “Without a clear
statement of the court’s rationale … , we cannot evaluate
whether [the court’s] decision was proper or constituted clear
error.” United States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006).


A. Importance of Governmental Interest
    We address first whether the Government established an
important interest, which, the Court has stated, includes
“bringing to trial an individual accused of a serious crime.”
Sell, 539 U.S. at 180. Most courts to have addressed the issue
have held that the central consideration when deciding
whether a particular crime is “serious” is the penalty autho-
rized by statute for the particular offense. See, e.g., Chatmon, 718
F.3d at 374 (noting that a crime with a statutory mandatory
minimum of ten years is serious); United States v. Green, 532
F.3d 538, 549 (6th Cir. 2008) (same); United States v. Palmer, 507
F.3d 300, 303-04 (5th Cir. 2007) (holding that a crime with a
maximum of ten years is serious even if defendant faced a
guidelines range of only fifteen to twenty-one months).
    In Sell, the Court also noted that special circumstances may
exist which would lessen the importance of the governmental
interest at stake. These include the defendant’s lengthy
confinement in an institution for the mentally ill, the potential
for future confinement if the defendant regains competency
10                                                    No. 13-3281

and the amount of time a defendant already has been confined
while the charges have been pending. Sell, 539 U.S. at 180. In
making the determination whether such special circumstances
exist, the district court must consider the facts of the individual
case. Id.; United States v. Grigsby, 712 F.3d 964, 969 (6th Cir.
2013); United States v. White, 620 F.3d 401, 411 (4th Cir. 2010). In
this respect, although the importance of the Government’s
interest is established, as a general matter, by the maximum
statutory penalty, after the Supreme Court’s decisions in Rita
v. United States, 551 U.S. 338 (2007), and United States v. Booker,
543 U.S. 220 (2005), it is appropriate at this point in its analysis
for the district court to undertake, with the assistance of
counsel, an estimate of the defendant’s probable guideline
range. See Grigsby, 712 F.3d at 973.
    The district court’s order does not reflect that it considered
either the length of Mr. Debenedetto’s sentence, by reference
to the statutory maximum and to the Guidelines, or
Mr. Debenedetto’s current or future confinement in concluding
that the Government had established by clear and convincing
evidence that it had an important interest in bringing
Mr. Debenedetto to trial. Counsel for Mr. Debenedetto initially
argued that this element of Sell was not satisfied because his
client already had been in custody for the amount of time he
likely would serve if convicted, and, therefore, there could be
no important governmental interest at stake in forcibly
medicating him to allow him to stand trial. Although the
parties put forward differing views of the length of sentence
Mr. Debenedetto might serve, the court did not ask counsel to
elaborate on how they reached their calculations, and the issue
was not addressed further. Moreover, although the subject of
No. 13-3281                                                     11

involuntary confinement was broached by the court, and the
likelihood could weigh against the importance of the Govern-
ment’s interest here, the district court’s order similarly was
silent on how this special circumstance factored into its
analysis.


B. Effectiveness of the Medication
    We turn then to the second of Sell’s requirements: that the
medication “is substantially likely to render the defendant
competent to stand trial” and “is substantially unlikely to have
side effects that will interfere significantly with the defendant’s
ability to assist counsel” in putting forth a defense at trial. 539
U.S. at 181. At the second hearing, defense counsel specifically
observed, apparently in reference to the report from the Butner
psychiatrist, that the psychotropic drugs were ineffective in
thirty percent of the cases. The Government countered that the
report suggested that there was a substantial likelihood that
Mr. Debenedetto could be restored to trial-level competency
within six months’ time. Even if we had the benefit of the
report, however, and could conclude that the Government had
established, by clear and convincing evidence, that
Mr. Debenedetto could be rendered competent with the
involuntary administration of psychotropic drugs, there is no
evidence in the record as to the side effects of those drugs and
their potential negative impact on Mr. Debenedetto’s ability to
assist with his defense.
12                                                     No. 13-3281

C. Medical Necessity and Less Intrusive Means
    We must conclude that the record similarly is inadequate
to establish the third Sell requirement–that the medication is
necessary to further the Government’s important interests and
“that any alternative, less intrusive treatments are unlikely to
achieve substantially the same results.” Id. Before a district
court can conclude that involuntary medication is necessary, it
must consider whether less intrusive means are possible.
Chatmon, 718 F.3d at 376 (reversing medication order where the
district court had not addressed the defendant’s arguments
regarding less intrusive means “and essentially provided ‘no
rationale’ in support of its ruling”). Mr. Debenedetto’s counsel
conditioned his client’s willingness to return to Butner on the
ground that the professionals there “review or consider less
intrusive measures.” R.69 at 7. Indeed, the district court
accepted this qualification and incorporated it into its order.
See R.63 at 4. In doing so, the district court necessarily failed to
make, as it must, the required finding that alternative, less
intrusive treatments would be unlikely to achieve substantially
the same results. Here, the district court impermissibly
delegated that responsibility.


D. Best Medical Interest of the Defendant
    We turn now to the fourth Sell requirement: that “adminis-
tration of the drugs is medically appropriate, i.e., in the patient’s
best medical interest in light of his medical condition.” 539 U.S.
at 181. Our review of this aspect of Sell is hindered by the
parties’ failure to include in the record the report of
Dr. Lucking on which the court, apparently, heavily relied. We
No. 13-3281                                                               13

must conclude that the Government did not meet its burden
with respect to this element. The only pertinent information in
the record is Mr. Debenedetto’s statement to the district court,
in which he details his previous violent and serious reaction to
antipsychotic drugs.13
   In sum, the record does not support the conclusion that the
Government met its burden of establishing each of Sell’s
requirements by clear and convincing evidence. We therefore
must vacate the district court’s commitment order. On remand,
the district court must consider and make explicit findings
concerning:
     1. The importance of the Government’s interest as evi-
        denced by the seriousness of Mr. Debenedetto’s crime
        and any other special circumstances that might lessen
        either the seriousness of his crime or the importance of
        the Government’s stated interest;
     2. The likelihood that the identified proposed course of
        treatment will render Mr. Debenedetto, given his


13
    To the extent that the district court believed that it was unnecessary to
make the required Sell findings because Mr. Debenedetto voluntarily agreed
to the medication, we do not believe that such a conclusion is supported by
the record. Mr. Debenedetto’s statements to the court reveal a legitimate
fear of serious side effects based on past experience. He made it very clear
that he did not want to experience those side effects again. His statements
also reveal a belief that antipsychotic drugs may not be necessary to
improve his competency. These comments evince a clear interest in
exploring less invasive means and strongly point to the conclusion that he
did not unqualifiedly consent to the administration of antipsychotic drugs.
Because Mr. Debenedetto did not consent to the administration of those
drugs, we believe the requirements of Sell must be satisfied.
14                                                   No. 13-3281

        specific diagnosis, competent to stand trial and the
        likelihood that it will not have side effects that will
        interfere significantly with his defense;
     3. The necessity of the proposed treatment to render
        Mr. Debenedetto competent for trial and the likelihood
        that less intrusive alternatives could not achieve sub-
        stantially the same results; and
     4. The appropriateness of the proposed course of treat-
        ment for Mr. Debenedetto, i.e., that it is in his best
        medical interest. As with the findings for the second
        factor, these findings should reflect a recognition of
        Mr. Debenedetto’s diagnosis and his personal medical
        history.
    As our colleagues in the Sixth Circuit have observed: “Each
involuntary medication case presents a court with the challeng-
ing task of balancing the defendant’s fundamental constitu-
tional right to liberty against the government’s important
interest in prosecution.” Grigsby, 712 F.3d at 976. This type of
detailed, fact-intensive inquiry is therefore “necessary to
determine where to strike that balance.” Id.


                               III
    A final matter pending in the appeal is the motion to
withdraw as counsel filed by the attorney appointed to
represent Mr. Debenedetto in the district court. Counsel
represents, without elaboration, that he feels he has a conflict
representing Mr. Debenedetto on this issue and does not feel
it would be in the best interest of his client for him to continue
No. 13-3281                                                  15

to represent him before this court. This appeal is part of
Mr. Debenedetto’s criminal proceedings, and he is entitled to
representation by counsel. See 18 U.S.C. § 3006A(c). An order
authorizing involuntary medication of an incompetent defen-
dant conclusively resolves the legal question of the defendant’s
right to refuse treatment and is a legal question of constitu-
tional significance separate from the merits of the underlying
criminal action. Sell, 539 U.S. at 176-77. Because we are re-
manding the case to the district court summarily for further
proceedings, however, there is nothing further for counsel to
do in this court. Counsel’s motion to withdraw relates only to
proceedings before this court; accordingly, counsel will
continue to represent Mr. Debenedetto in the district court
absent a motion filed with that court.


                         Conclusion
   For the reasons set forth in the preceding opinion, we
vacate the October 10, 2013 commitment order of the district
court and remand for further proceedings consistent with this
opinion. Given that disposition, we also deny defense counsel’s
motion to withdraw from the appeal as moot.


                             VACATED and REMANDED;
                         MOTION TO WITHDRAW DENIED
