NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                      No. 10-2930
                                      __________

                         UNITED STATES OF AMERICA


                                            v.


                              DAANIYAL MUHAMMAD,
                              a/ka/ Kalil, a/k/a Officer Lil,
                                                   Appellant

                                       __________

                   On Appeal from the United States District Court
                      for the District of Eastern Pennsylvania
                            (D.C. No. 2-07-cr-00737-004)
                   District Judge: Honorable Eduardo C. Robreno

                                       __________

                                Argued October 13, 2010

            Before: FUENTES, JORDAN and ALDISERT, Circuit Judges.

                                (Filed: October 28, 2010)


Peter A. Levin, Esq. (ARGUED)
1927 Hamilton Street
Philadelphia, PA 19130

      Counsel for Appellant

Salvatore L. Astolfi, Esq. (ARGUED)
Kathy A. Stark, Esq.


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Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

         Counsel for Appellee

                                        __________

                                 OPINION OF THE COURT
                                       __________

ALDISERT, Circuit Judge.

         Daaniyal Muhammad appeals from the District Court for the Eastern District of

Pennsylvania, which ordered that he be made fit for trial by medicating him against his

will. In limited circumstances, Sell v. United States, 

(2003), authorizes such

orders if the Court makes four predicate findings. Before a court reaches Sell’s four-part

inquiry, however, the government ordinarily must show why medication cannot be

administered pursuant to other procedures, such as those described in Washington v.

Harper, 

(1990), or 28 C.F.R. § 549.43. United States v. Grape, 

, 599 (3d Cir. 2008) (“We do not reach consideration of the four-factor Sell test

unless an inmate does not qualify for forcible medication under Harper”). This case is

unusual in that Muhammad expressly waived any claim or right he may have had under

Harper or § 549.43. As a result, the sole question we must answer is whether the District

Court properly applied Sell. We hold that it did, and will affirm.1

                                              I.

1
    The District Court had jurisdiction under 18 U.S.C. § 3231 because Muhammad was
    charged with violating the laws of the United States. We have jurisdiction under the
    collateral order exception to 28 U.S.C. § 1291. 

.


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       We write for the parties in this case only, and we state the facts and the District

Court procedures only as necessary to explain our reasoning.

       Muhammad, who was indicted for conspiring to distribute crack cocaine, suffers

from schizophrenia and other mental disorders. Although profoundly disabled by these

diseases, Muhammad refuses antipsychotic medication, and declines to participate in

psychotherapy or any other form of mental health treatment. In his un-medicated state, he

is unable to appreciate the charges against him or to assist in his defense, and as a result

he is unfit to stand trial. To restore Muhammad’s competency, the government moved for

the District Court to order him medicated pursuant to Sell. The District Court granted the

government’s motion after applying Sell’s four-part balancing test, and Muhammad

appealed.

       Before oral argument, we requested additional briefing on whether Muhammad’s

condition poses a danger to himself or others, thus triggering the due process procedures

mandated by § 549.43 and 

. The government contended that

Harper and § 549.43 were not relevant and Muhammad agreed, stating that they were

“not appropriate in this case as there was no evidence that Appellant posed a danger to

others.” Because neither party disputed Muhammad’s rights or remedies under Harper

and § 549.43, we do not reach those issues. See United States v. Hernandez-Vasquez, 

, 915 (9th Cir. 2008) (holding that a district court did not err in “honoring the

parties’ agreement to proceed directly to the Sell inquiry.”).

                                             II.

       We begin with the law of pre-conviction involuntary medication. If, as in this case,


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a district court finds a criminal defendant is incompetent to stand trial, the court must

commit the defendant to the custody of the Attorney General. 18 U.S.C. § 4241. The

Attorney General must hospitalize and treat the defendant until competency returns,

unless medical professionals determine that to do so would require an unreasonable

amount of time. 

       While in the Attorney General’s custody, inmates maintain substantial liberty

interests, including the interest in avoiding unwanted medication. 

(“The forcible injection of medication into a nonconsenting person’s body represents a

substantial interference with that person’s liberty.”). “In the case of antipsychotic drugs,”

like the ones Muhammad may be given, “that interference is particularly severe: [t]he

purpose of the drugs is to alter the chemical balance in a patient’s brain, leading to

changes, intended to be beneficial, in his or her cognitive processes. While the

therapeutic benefits of antipsychotic drugs are well documented, it is also true that the

drugs can have serious, even fatal, side effects.” Riggins v. Nevada, 

, 134

(1992) (citations omitted).

       Nonetheless, upon “a finding of overriding justification and a determination of

medical appropriateness,” a defendant’s liberty interest may yield to the legitimate needs

of government. 

The Sell Court recognized that Riggins “will permit

involuntary administration of drugs solely for trial competence purposes in certain

instances,” adding, “[b]ut those instances may be 

; cf. United States

v. McCray, 

, 678 (D.N.J. 2007); United States v. Dumeny, 295 F.

Supp. 2d 131, 132-133 (D. Me. 2004). Sell authorizes such orders only in the limited


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circumstances where (1) important governmental interests are at stake, (2) involuntary

medication will significantly further those concomitant state interests, (3) involuntary

medication is necessary to further those interests, and (4) involuntary medication is

medically appropriate, i.e., in the patient’s best medical interest in light of his medical

; see also United States v. Gomes, 

, 160 (2d

Cir. 2004).

                                             III.

       We will affirm the District Court’s order. The absence of dispute regarding Harper

and § 549.43 limits us to the narrow question of whether the Court properly applied the

four Sell factors. We have reviewed the record and we are satisfied that the Court’s

opinion responded to the contentions Muhammad has made before us. We will affirm its

judgment without further discussion.




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