RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0254p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 06-6186
          v.
                                                     ,
                                                      >
 CUTERRIS GREEN,                                     -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Middle District of Tennessee at Nashville.
                 No. 04-00153—Todd J. Campbell, Chief District Judge.
                                            Argued: July 25, 2007
                                     Decided and Filed: July 16, 2008
       Before: KEITH and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Caryll S. Alpert, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. David Rivera, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellee. ON BRIEF: Caryll S. Alpert, Michael C. Holley, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. David Rivera, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
     VAN TATENHOVE, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.
KEITH, J. (pp. 17-20), delivered a separate dissenting opinion.
                                             _________________
                                                 OPINION
                                             _________________
        VAN TATENHOVE, District Judge. Cuterris Green, a pretrial detainee, objects to the
involuntary administration of psychotropic drugs to render him competent to stand trial. We review
the district court’s consideration of whether the government’s interest in prosecution outweighs Mr.
Green’s constitutional right to refuse intervention. Sell v. United States, 

(2003).



         *
           The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.


                                                         1
No. 06-6186                          United States v. Green                                                       Page 2


Because we conclude that it does, we affirm the district court’s decision and find that medications
properly may be administered to restore Mr. Green’s competency.1
                                                            I.
        Cuterris Green (“Green”) was charged in a five-count indictment for the following drug-
related activities: (1) possession with intent to distribute approximately 29.6 grams of marijuana in
violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute approximately 1.8 grams
of cocaine in violation of 21 U.S.C. § 841(a)(1); (3) possession with intent to distribute
approximately 1.7 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); (4) possession with intent
to distribute approximately 1.6 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); and
(5) possession with intent to distribute approximately 50 grams of cocaine base, approximately 168
grams of cocaine, and approximately 140 grams of marijuana, all in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. In addition to the counts charged, the indictment also contained two
Sentencing Allegations: first, that Green possessed with the intent to distribute between 150 and 500
grams of cocaine base, and second, that Green possessed a dangerous weapon during the
commission of the offense.
        The charges in the indictment arise from activity occurring between April 28, 2004 and
May 7, 2004, during which time Green sold illegal drugs to an undercover law enforcement officer.
After the final sale, law enforcement officials followed Green and conducted a traffic stop where
they found a small amount of the drugs. Simultaneously, officials executed a search of Green’s
residence where they found a larger amount of crack cocaine and a loaded “Tech 9” semi-automatic
firearm, along with several empty magazines in a bedroom drawer.
       Green was arrested, and temporarily detained pending arraignment and a hearing on the
government’s motion for detention. The next day, Green was arraigned, followed by the detention
hearing. The Magistrate Judge, noting Green’s prior convictions, which included the assault of his
mother, as well as the serious nature of the federal charges and potential penalties he faced,
concluded that Green had not overcome the rebuttable presumption of detention and that he posed
a “substantial risk of danger to the community.” Accordingly, Green was detained pending trial.
       As part of the pretrial proceedings,2 Green moved for a determination of mental competency
pursuant to 18 U.S.C. § 4241(a). The United States similarly moved, and the district court
conducted a hearing at which it determined that Green may be suffering from a “mental defect
rendering him mentally incompetent to the extent that he is unable to understand the nature and

         1
          We have jurisdiction over Green’s appeal pursuant to the “collateral order” doctrine. In Sell, the Supreme
Court recognized that appellate review of interim orders such as the one from which Green appeals is proper under this
doctrine because the order:
         (1) “conclusively determine[s] the disputed question,” (2) “resolve[s] an important issue completely
         separate from the merits of the action,” and (3) is “effectively unreviewable on appeal from a final
         judgment.”
Sell, 539 U.S at 176 (citing Coopers & Lybrand v. Livesay, 

, 468 (1978)). Although the Court discussed
the first two factors, it appears the Court’s primary focus was on the last given the “severity of the intrusion” on the
defendant’s body. See 

It is true that once a criminal defendant has been forcibly medicated, any appellate
review would be ineffective because the “very harm that he seeks to avoid” cannot be undone even if he is acquitted.
See 

review of the district court’s non-final order is proper in this case.
         2
          There are several portions of the Joint Appendix, including the district court memorandum opinion and order
and many of the forensic reports at issue, which were filed under seal. To the extent these issues were either discussed
during oral argument or raised by the parties in their briefs, all of which is now part of the public record, those matters
are addressed openly in this opinion.
No. 06-6186                    United States v. Green                                        Page 3


consequences of the proceedings against him or to assist properly in his defense.” Pursuant to 18
U.S.C. §§4241 and 4247, and Federal Rule of Criminal Procedure 12.2(c), the district court ordered
that Green be committed to the custody of the Attorney General for a determination of his mental
competency, and that a report be filed outlining the result of the mental examination. Green was
transferred to the Federal Medical Center in Lexington, Kentucky (“FMC Lexington”), where an
April 13, 2005 Forensic Report concluded that he was incompetent to stand trial. Specifically, the
evaluation concluded that Green suffered from Psychotic Disorder Not Otherwise Specified. In her
written evaluation, Dr. Betsy Campbell concluded:
       Mr. Green is currently suffering from a mental disease or defect rendering him
       mentally incompetent to the extent he is unable to understand the nature and
       consequences of the proceedings against him or to properly assist in his defense.
       Therefore, it is the opinion of the undersigned evaluator he is not currently
       competent to stand trial.
Although Green was not combative or otherwise disruptive during his evaluation, he denied any
history of mental illness and refused to accept any treatment in spite of clear and indisputable
evidence to the contrary.
        For example, Green’s mother advised the evaluators that he had suffered from mental illness
for some time. In fact, his mental illness affected his ability to maintain stable employment and
Green had received disability benefits for psychiatric problems. 

Lexington possessed
evidence that Green “hears voices,” demonstrates “compulsive” behaviors, paranoia, delusions, and
hallucinations. Likewise, the medical records from the Mental Health Co-Op confirmed these
general factual observations and medical conclusions regarding Green’s mental status. Accordingly,
Drs. Campbell and Helvey recommended commitment to a BOP inpatient treatment facility. They
advised that involuntary medication would likely be required to restore Green’s competency
“[b]ecause of his difficulty acknowledging his mental illness, accepting his need for treatment, and
complying with treatment when offered.”
        Relying on the Forensic Report from FMC Lexington, both the government and counsel for
the Defendant agreed that Green was incompetent. Consequently, and after conducting a hearing,
the district court specifically determined the same, and held that Green was “presently suffering
from a mental disease or defect rendering him mentally incompetent to the extent that he is unable
to understand the nature and consequences of the proceedings against him or to assist properly in
his defense.” Accordingly, the trial court committed Green to the custody of the Attorney General
for a four-month period to determine whether he could attain the mental capacity to proceed to trial,
and noted that, given Green’s refusal to voluntarily medicate himself, any further requests regarding
involuntary medical treatment should be made to the district court in writing.
        At that point, Green was transferred to the Federal Medical Center in Rochester, New York
(“FMC Rochester”) for continued evaluation, appropriate treatment, and a medical determination
regarding his ability to attain sufficient competency to stand trial. The FMC Rochester completed
its evaluation and provided it to the district court on January 3, 2006. Green was even more
uncooperative during his time at FMC Rochester than at FMC Lexington in that he refused to
discuss his legal case, denied any history of mental illness, refused any medical treatment or to
participate in any testing, and appeared generally confused and disoriented. Ultimately, those
physicians also concluded that Green suffers from Psychotic Disorder Not Otherwise Specified
(NOS) and Rule Out Malingering. In addition, the evaluation noted the existence of Green’s non-
insulin dependent Diabetes Mellitus. The examiners at FMC Rochester, including Dr. Andrew
Simcox, reached competency conclusions similar to those reached by the physicians at FMC
Lexington:
No. 06-6186                         United States v. Green                                                   Page 4


         Mr. Green is currently suffering from a mental disease or defect rendering him
         mentally incompetent to the extent he is unable to understand the nature and
         consequences of the proceedings against him or to properly assist in his defense.
         Furthermore, we believe there is a substantial probability he will attain the capacity
         to permit the trial to proceed in the forseeable future if he receives appropriate
         mental health care. It appears clear the administration of such care would need to be
         court ordered, as Mr. Green has consistently declined to consent to such treatment.
        In addition to the above-outlined diagnosis, the FMC Rochester report considered the
propriety of involuntary medication in light of the Sell factors. Ultimately, the examiners concluded
that Green’s quality of life would benefit greatly from involuntary medication beyond simply
restoring his capacity to stand trial, particularly given his past positive response to similar treatment,
and noted that any side effects from such treatment were unlikely to interfere with his defense. The
report went on to note that his mental status would not likely improve absent the imposition of
medication and that no less intrusive means available would achieve the same result. The United
States then requested that the district court order involuntary medication to restore Green’s mental
competency to stand trial. Green opposed the motion, and both the government and Green filed
memoranda in support of their respective positions. Ultimately, on August 18, 2006, the district
court conducted a hearing    at which it determined that Green should be involuntarily medicated to
restore his competency.3
        At the hearing, the district court heard extensive testimony on behalf of the government from
two physicians from FMC Rochester, Dr. Andrew Simcox and Dr. Donna Christine Sigurdson. In
addition, Dr. John Griffin, a private psychologist, provided testimony on behalf of Green. Both Drs.
Simcox and Sigurdson testified that Green demonstrated paranoia and high levels of distrust, as well
as continued refusal to acknowledge his mental health issues. Dr. Sigurdson provided detailed
testimony regarding Green’s mental health, both past and present, the proposed treatment plan for
Green, the anticipated length of time required to restore him to competence, the virtues and hazards
of first and second generation anti-psychotic medications generally, and the effects of such
medications in light of Green’s individualized mental health and general medical conditions,
including diabetes.
       Dr. Griffin testified on behalf of Green. During his testimony, Dr. Griffin agreed with the
proposed treatment plan offered by the government and their medical conclusions regarding Green’s
competency and potential improvement with involuntary medication. He testified that the preferred
method, in his view, would be therapeutic, but did not seriously dispute the conclusions reached by
the government’s experts, and likewise indicated that his private practice experience made him
unfamiliar with the prison context at issue here. Much of Dr. Griffin’s testimony centered on
“wellness”’ rather than competence to stand trial. In addition to the live testimony, the district court
received a substantial amount of written evidence, including the various FMC evaluations of Green,
which included information provided by his family, his prior medical records from the mental health
cooperative, and other relevant information provided by Green himself during the evaluation
process.
        On August 24, 2006, the district court entered an order requiring the defendant be
involuntarily medicated and filed a separate memorandum in support. The Sealed Memorandum
detailed the court’s reasoning as it related to a finding for each Sell factor, and then, by separate
Sealed Order, recited verbatim from its Sealed Memorandum the following directive:

         3
          We note that the due process hearing required by 28 C.F.R. § 549.43 was conducted in advance of the district
court hearing. Neither party raises any procedural concerns in this appeal related to failure to exhaust any required
administrative processes. See United States v. White, 

(5th Cir. 2005) (holding that due process requires
exhaustion of administrative procedures under 28 C.F.R. § 549.43 before conducing Sell inquiry)
No. 06-6186                          United States v. Green                                                       Page 5


                 Having determined that the Government has satisfied the Sell factors for
         involuntary medication of the Defendant to restore him to competence, the Court
         continues Defendant’s commitment pursuant to 18 U.S.C. §4241(d)(2)(A). The
         Bureau of Prisons’ mental health professionals are authorized to involuntarily
         medicate the Defendant, consistent with the prevaling standard of care for mental
         health professionals, to restore the Defendant to competence. The commitment shall
         continue for four months, or a lesser period if reasonably sufficient to restore him to
         competency. At the end of four months, or when the Defendant’s competency is
         restored if that occurs in less than four months, the Bureau of Prisons shall file a
         report with the Court describing the results of the treatment.
It is from that Sealed Order, and the reasoning underlying it as expressed in the accompanying
Sealed Memorandum, that Green brings this interlocutory appeal pursuant to Sell v. United States,

(2003).
                                                           II.
                                                           A.
        In Sell v. United States, 

(2003), the United States Supreme Court considered
long-standing precedent4 regarding a defendant’s constitutional right to refuse medical treatment.
It held that, in certain circumstances, “the Constitution permits the Government involuntarily to
administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order
to render that defendant competent to stand trial.” 

        From that standard, the Court articulated a four-part analysis to be conducted by the district
court when determining whether involuntary medication may be utilized to render5 a defendant
competent to stand trial where he does not pose a danger to himself or the community. A Sell order
requires the government to present clear and convincing evidence of the following: (1) the existence
of an “important” governmental interest; (2) that involuntary medication will “significantly further”
the government interest; (3) that involuntary medication is “necessary” to further those interests; and
(4) that the  administration of the drugs must be “medically appropriate” for the individual
defendant.6 

Green contends that the district court erred as to factors one, two, and


         4
           The Sell Court considered the framework set forth by its predecessors in Washington v. Harper, 

(1990) and Riggins v. Nevada, 

(1992). 

. In Harper, the Court recognized that
an individual “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs
under the Due Process Clause of the Fourteenth Amendment.” 

(citations omitted). The
Harper court noted, however, that the involuntary medication of an inmate would not violate due process if the inmate
were “dangerous to himself or others and the treatment is in the inmate’s medical interest.” 

Likewise, in
Riggins, the Supreme Court found that forced medication would not violate due process if the government showed that
such medication was essential for the defendant’s “own safety or the safety of others.” 

.
Further, the Riggins Court noted that forced medication may have been appropriate had the government shown that it
could not have conducted a fair trial absent any less intrusive means. See 

of these two cases, the Sell court
concluded that, in certain circumstances, the government’s interest in prosecution could outweigh a defendant’s
constitutional right to be free of unwanted medical treatment. 

.
         5
           The Sell standard applies when the forced medication is requested to restore competency to a pretrial detainee
and the pretrial detainee is not a danger to himself or others. When the pretrial detainee is a potential danger to himself
or others, the Harper standard is used. See 

.
         6
          Here, the parties have agreed that the Sell standard applied to the district court’s determination and that the
government bore the burden of proof by clear and convincing evidence. Because of this, the government was not
required to explain why it was not seeking involuntary medication on Harper-type grounds, nor was the district court
required to make such a finding in excess of stating why it applied the Sell standard, which it did in this case. See Sell,
No. 06-6186                          United States v. Green                                                       Page 6


four, and provides the first opportunity this Circuit has had to consider the application of the Sell
factors.
                                                            B.
         Green first argues that the district court erred when it determined that his crimes were
sufficiently “serious” to support an important governmental interest in prosecuting him. Our review
is guided by well-established principles in the Sixth Circuit. Generally, a de novo standard applies
to legal conclusions and findings of fact are reviewed for clear error. See e.g., United States v.
Carpenter, 

, 594 (6th Cir. 2004). Although this Circuit has not specifically addressed
the nature of the Sell factors, our sister circuits have done so and determined that the first factor, the
existence of an “important” government interest, is a legal conclusion which requires a de novo
review. We agree. See e.g., United States v. Hernandez-Vasquez, 

, 915-916 (9th Cir.
2008) (“We...review the district court’s determination with regard to the first Sell factor de novo and
the remaining Sell factors for clear error.”) (citation omitted); United States v. Evans, 

,
236 (4th Cir. 2005) (“The district court’s determination that the government’s interest is ‘important’
is a legal conclusion that we review de novo.”) (citation omitted); United States v. Gomes, 

, 160 (2d Cir. 2004) (“Whether the Government's asserted interest is important is a legal question
that is subject to de novo review.”); United States v. Bradley, 

, 1113-1114 (10th Cir.
2005) (finding that, as to factors one and two, the balance between government’s interest and
defendant’s is a mixed question of law and fact that nonetheless requires de novo review). We
therefore hold that the question of whether an important governmental interest is at stake is a legal
question which requires de novo review.
        Green makes two basic points. First, he contends the district court should not have applied
the Fourth Circuit’s “potential penalty” rule in determining whether the crime was “serious” because
Green’s penalties were arbitrarily enhanced by the presence of crack cocaine even though his
charges were non-violent. Second, Green believes that the crimes with which he is charged are not
serious crimes against “persons” or “property” as required by Sell. He believes that the crimes for
which he is charged are nonviolent, “victimless” street-level drug trafficking offenses. Absent the
existence of “crack cocaine,” Green argues, the penalty would have been less severe than the
statutory ten year mandatory minimum he currently faces. Notably, the existence of a firearm in his
home during the commission of a drug offense operates as a sentencing enhancement under the
United States Sentencing Guidelines,   which makes Green’s potential sentence between 210 and 262
months (17.5 years to 21.8 years).7 Although Green acknowledges the enhancement, it’s a fact that
he contends should not be relevant to the “serious” nature of the crime committed. Because we
ultimately conclude the Sentencing Guidelines are not an entirely objective measure of the
seriousness of a crime, but rather look to the maximum statutory penalty, this point is not dispositive
of the current 

. Further, in his initial brief, Green cited United States v. Brandon, 

, 957 (6th Cir. 1998)
which adopted a strict scrutiny standard when considering whether a defendant should be involuntarily medicated to
restore his competence to stand trial. Because Brandon was decided five years earlier than Sell v. United States, and the
parties have stipulated to the Sell standard, this Court finds Brandon inapplicable to the instant case given subsequent
Supreme Court precedent.
         7
           U.S.S.G. § 2D1.1(b)(1) provides for a two-point increase in a defendant's offense level if a firearm is
“possessed” during a drug-trafficking crime. See e.g., United States v. Hill, 

, 1485 (6th Cir.1996)
(articulating four-part test to determine whether sentencing enhancement is proper); United States v. Moses, 

, 850 (6th Cir. 2002) (finding proper application of firearm enhancement).
         8
         Subsequent to the briefing in this appeal, the United States Sentencing Commission amended the United States
Sentencing Guidelines for certain categories of offenses involving crack cocaine. See U.S.S.G. § 1B1.10 (also noted in
Amendment 706, Appendix C, U.S.S.G. Manual). Specifically, the amendment effectively lowers the Guideline range
No. 06-6186                           United States v. Green                                                       Page 7


        In the instant case, the district court correctly found that the government had an “important”
interest in prosecuting Green for the crimes charged after careful consideration of the exact
arguments he makes as part of the instant appeal. As we do here, it rejected Green’s argument that
his crimes were not “serious” simply because they did not involve “large-scale drug trafficking:”
         Given the potential sentence faced by the Defendant, the Court concludes that the
         Government has an important interest in bringing the Defendant to trial. Despite
         Defendant’s argument that “street level drug deals” do not qualify as “serious,” the
         substantial sentences attached to the charged offenses reflects a policy decision by
         Congress that the crimes are serious ones.
The district court noted that other circuits had considered both the potential statutory penalty and
the potential Guideline range in determining whether a crime was sufficiently “serious” to meet the
first prong of the Sell standard. See e.g., United States v. Evans, 

(4th Cir. 2005)
(holding that maximum statutory penalty of ten years warrants finding of serious to support Sell
order). We agree. Therefore, this legal determination was not error.
       In Sell, the Supreme Court did not delineate exactly those crimes which should be considered
“serious” or even outline the considerations a court should take into account when making that
determination. Rather, it simply said,
         a court must find that important governmental interests are at stake. The
         Government’s interest in bringing to trial an individual accused of a serious crime
         is important. That is so whether the offense is a serious crime against the person or
         a serious crime against property. In both instances the Government seeks to protect
         through application of the criminal law the basic human need for security.

(“‘[P]ower to bring an accused to trial is fundamental to a scheme of “ordered
liberty” and prerequisite to social justice and peace’”) (citing Riggins v. Nevada, 

, 135-
136 (1992) quoting Illinois v. Allen, 

, 347 (1970)). Without more specific guidance or
a rigid test, courts are left to fashion appropriate, and presumably objective parameters by which to
assess seriousness. Other courts considering whether a crime meets the seriousness requirement
have looked, as the district court did in this case, to the potential statutory penalty and/or Guideline
range of imprisonment which may be imposed. See e.g., United States v. Evans, 

(4th
Cir. 2005) (holding that maximum statutory penalty of ten years warrants finding of serious to
support Sell order); United States v. Gomes, 

, 160 (2d Cir. 2004) (noting the defendant
faced a mandatory statutory minimum of 15 years imprisonment because of his prior drug
convictions evidenced congressional view that crime was “serious”); United States v. McCray, 

, 677 (D.N.J. 2007) (relying on statutory maximum sentences to determine whether
crime was “serious” for purposes of Sell order).




by reducing the base offense level by approximately two points for the quantities of crack cocaine outlined in the Drug
Quantity Table contained in U.S.S.G. § 2D1.1. Although the effective date of the amendment was March 3, 2008, it will
have retroactive effect for certain, eligible defendants who were sentenced on or after November 1, 2007. See id; 18
U.S.C. §§ 994(u), 3582(c)(2). Although neither Green or the government raises this issue, nor does it alter our holding,
we feel it must be addressed given the arguments made by Green. First, because of our conclusion that district courts
must look to the statutory penalty set forth by Congress to determine whether a crime is “serious” for purposes of a Sell
analysis, any changes in the potential Guideline ranges are irrelevant. Second, the potential applicability of the reduction
and retroactive effect continues to depend on subjective factors (e.g., nature and characteristics of the particular
defendant and his or her crime) and specifically cannot override any mandatory statutory minimum sentences set forth
by Congress. These caveats only underscore our holding that the statutory penalty is the more appropriate, and most
objective measure by which to determine the seriousness of a particular crime.
No. 06-6186                        United States v. Green                                                   Page 8


        In United States v. Evans, the Fourth Circuit determined that “it is appropriate to focus on
the maximum penalty authorized by statute in determining if a crime is ‘serious’ for involuntary
medication purposes.” United States v. Evans, 

, 237 (4th Cir. 2005). Underlying this
rationale is both a recognition of and respect for the fundamental role of the legislative process in
making these seriousness determinations, as well as an effort to find some objective standard by
which to analyze the first Sell factor. See 

approach avoids an arbitrary determination
of seriousness that could befall appellate courts given the breadth of potential criminal charges, the
prevailing attitudes of a particular community as it relates to a specific crime, the particularities of
any given case, as well as any number of other subjective factors that could influence this
determination, and ultimately, lead to unavoidable disparity among the circuits regarding what
constitutes a “serious” crime. As recognized by the Fourth Circuit, the United States Supreme Court
cautions the judiciary against just such an intrusion into the legislative process:
        In recent years, however, we have sought more “objective indications of the
        seriousness with which society regards the offense. [W]e have found the most
        relevant such criteria in the severity of the maximum authorized penalty.” In fixing
        the maximum penalty for a crime, a legislature “include[s] within the definition of
        the crime itself a judgment about the seriousness of the offense.” The judiciary
        should not substitute its judgment as to seriousness for that of a legislature, which
        is “far better equipped to perform the task, and [is] likewise more responsive to
        changes in attitude and more amenable to the recognition and correction of their
        misperceptions in this respect.”
Blanton v. City of North Las Vegas, 

, 541-542 (1989) (citations omitted).
        Here, Green argues that the statutory penalty imposed for possession of crack cocaine was
not an accurate measure of the seriousness  of his crime because he possessed only a small amount
of the drug, the crime is non-violent9, and that the crime is “victimless” because the Sentencing
Guidelines designate it as such. We disagree.
        First, we simply cannot conclude that only “violent” crimes are “serious” for purposes of this
analysis. There are any number of criminal behaviors that do not involve crimes of violence that
are “serious” matters. Indeed, the Sell court noted that fraud was a serious crime. See 

; see also United States v. Valenzuela-Puentes, 

, 1226-1227 (10th Cir. 2007)
(finding illegal entry charge a “‘serious crime’ despite there being no indication that the conduct for
which he was charged was violent or harmful to others” for purposes of Sell analysis). Hence,
violence alone does not define a “serious” crime.
        Second, we do not subscribe to the theory that the legislative branch considers drug-
trafficking crimes as “victimless,” regardless of the scale of the operation. If a criminal defendant
possesses an illegal substance with the intent to distribute that substance to others, unquestionably
there are victims. The lack of an identifiable person in this case does not equate to a completely
“victimless” crime. Fortunately, Green sold the drugs in question to a confidential informant who
had no intention of disseminating the drugs into the larger community. Had the buyer been an actual
dealer or user, however, it is doubtful that he would make this same argument. Certainly, it would
have even less credence than it has now. Society as a whole is the victim when illegal drugs are
being distributed in its communities. It follows that Green’s family is a victim because of his illicit
activities. And, perhaps most importantly, Congress’ imposition of such harsh penalties for these
drug-related crimes underscores our view.


        9
          Notably, Green’s argument omits the fact that he faces a sentencing enhancement for possession of a firearm
during the drug offense, although it was not “charged” in the indictment.
No. 06-6186                    United States v. Green                                           Page 9


         Third, the maximum statutory penalty is the most objective means of determining the
seriousness of a crime and the standard we adopt. In this case, the mandatory statutory minimum
is sufficient. If Green were convicted of possession with intent to distribute, he faces a statutory
minimum sentence of ten years imprisonment under 21 U.S.C. § 841(b)(1)(A). The maximum which
could be imposed is life imprisonment. See 

penalties represent a decision
by the legislature that possession of crack cocaine with the intent to distribute is a “serious” crime
warranting a serious punishment. By utilizing the potential statutory penalty to assess the
seriousness of a crime, we employ an objective standard for application and thereby avoid any
arbitrary determinations, and further, respect the judgment of the legislative branch as reflective of
societal attitudes.
        Moreover, the Supreme Court has spoken on this very point in other jurisprudence. Whether
a crime is “serious” should be determined by its maximum statutory penalty. See e.g., Lewis v.
United States, 

, 326 (1996) (“Now, to determine whether an offense is petty, we
consider the maximum penalty attached to the offense. This criterion is considered the most relevant
with which to assess the character of an offense, because it reveals the legislature's judgment about
the offense’s severity. ‘The judiciary should not substitute its judgment as to seriousness for that of
a legislature, which is far better equipped to perform the task.’ In evaluating the seriousness of the
offense, we place primary emphasis on the maximum prison term authorized. While penalties such
as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by
imprisonment makes that penalty the best indicator of whether the legislature considered an offense
to be ‘petty’ or ‘serious.’”) (citations omitted); see also Blanton v. City of North Las Vegas, 

, 541-542 (1989) (“‘[W]e have found the most relevant such criteria in the severity of the
maximum authorized penalty.’ In fixing the maximum penalty for a crime, a legislature ‘include[s]
within the definition of the crime itself a judgment about the seriousness of the offense.’”) (citations
omitted).
        Further, we need not decide whether consideration of the potential Guideline range leads to
the same result. First, the Sentencing Guidelines are now advisory and a district court is not
required to impose a particular sentence in accordance with the projected range. See United States
v. Booker and United States v. Fanfan, 

, 245-246 (2005) (“So modified, the federal
sentencing statute, see Sentencing Reform Act of 1984, (Sentencing Act), as amended, makes the
Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18
U.S.C.A. § 3553(a)(4) (Supp.2004), but it permits the court to tailor the sentence in light of other
statutory concerns as well.) (citations omitted). Second, the Guideline ranges reflect the views of
the Sentencing Commission rather than Congress as a duly elected body of the people. See U.S.S.G.
§ 1A1.1 (“The guidelines, policy statements, and commentary set forth in this Guidelines Manual,
including amendments thereto, are promulgated by the United States Sentencing Commission.”).
Finally, it would be impossible for a district court to adequately utilize the Guideline range in
making an objective decision as to the seriousness of a particular crime. Most often, the Guideline
range is not determined finally until after a defendant has been convicted and a presentence
investigation report has been completed. See Fed. R. Crim. P. 32(c). As part of that process, many
variables impact a potential range. For example, previous criminal history points may or may not
be assigned depending on how such crimes are categorized and punished in different states, as well
as various enhancements and reductions depending on the particular circumstances of an individual
defendant’s case, to name a few. None of this information would be available to a district court at
the time it must make the seriousness determination on an involuntary medication request. While
Guideline estimates may be provided in advance of the presentence investigation report, those are
merely estimates, and are based solely on the limited information available at a very early stage of
a criminal proceeding and are subject to change as additional information becomes available. All
of these considerations weigh against relying on the Sentencing Guidelines to determine whether
a crime is “serious” for purposes of a Sell order, and counsel in favor of using the statutory
maximum prescribed by Congress.
No. 06-6186                    United States v. Green                                         Page 10


         We do not read Sell to impose a requirement that the crime at issue be against “person” or
“property” to be “serious,” as Green suggests. In support, Green relies on United States v. Barajas-
Tores, No. CRIM EP-03-CR-2011KC, 

, *1 (W.D. Tex. July 1, 2004), where the
district court held that a charge of illegal reentry into the United States was not “serious” for
purposes of the Sell standard because it did not involve a crime against person or property. See 

Other circuits have disagreed with the district court in Texas. For example, in United States
v. Valenzuela-Puentes, 

, 1226-1227 (10th Cir. 2007), the Tenth Circuit Court of
Appeals held that an illegal entry charge was a “‘serious crime’” for purposes of the Sell analysis,
“despite there being no indication that the conduct for which he was charged was violent or harmful
to others.” 

conclude that a district court may rely on the potential statutory
penalty to determine whether the crime meets the “serious” requirement to justify the important
governmental interest in prosecuting a particular defendant, regardless of whether the crime is
against persons or property, or neither. While the nature of the crime committed and the potential
Sentencing Guideline range may bear on the district court’s assessment, those factors alone are not
dispositive in and of themselves. Rather, we believe that the prescribed statutory penalty provides
the most objective view of seriousness because it necessarily takes into account such factors as the
nature of the crime, as well as the defendant’s characteristics (e.g., subsequent or second offender
penalities).
        In identifying the nature of the government’s interest in involuntary medication, the Sell
court found that “[t]he Government's interest in bringing to trial an individual accused of a serious
crime is important. That is so whether the offense is a serious crime against the person or a serious
crime against property.” 

. The Evans court interpreted this statement to merely
reference the charges with which Sell himself was charged rather than as a specific requirement
regarding the nature of the crime in every instance. 

, fn 6. We agree. Had
the Sell Court intended Green’s suggested result, it could have easily made this point as it did with
respect to the specificity it required of the district courts in the findings which must be made under
the other factors. See 

         Rather, the reference more readily appears to be descriptive of the government’s interest as
it relates to the charges in that particular case. Charles Sell was charged with fraud and intimidation
of a witness. The former is a crime against property and the latter a crime against the person. What
the Court did say is that the government has an interest in prosecuting serious crimes and that crimes
against persons or property could be serious enough to warrant the government’s interest in
prosecution. Just as we are unpersuaded by Green’s argument that only violent crimes with victims
are serious, we are equally unpersuaded that only crimes against persons or property are serious.
Accordingly, we hold that the district court correctly found that the United States met its burden as
to factor one of the Sell test in establishing a sufficiently important government interest in light of
the “serious” crime charged against Green.
        Finally, having found that the government has an “important” governmental interest at stake
in prosecuting Green, we note that are no special circumstances which “lessen the importance of that
interest” such as a “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” or “the possibility that the defendant has already been confined for a significant amount of
time (for which he would receive credit toward any sentence ultimately imposed, see 18 U.S.C.
§ 3585(b)).” 

. As the district court correctly noted, Green does not argue that
such circumstances exist, and neither expert indicated that Green would be a candidate for civil
commitment. See also United States v. Gomes, 

, 161 (2d Cir. 2004) (noting that lack
of evidence that defendant would qualify for civil commitment weighs in favor of government’s
interest). In addition, if convicted, Green, having only been confined for three years, would still
have the majority of a ten year mandatory minimum sentence to serve, at the least. Accordingly,
No. 06-6186                           United States v. Green                                                      Page 11


the government’s important interest in prosecuting Green is not lessened by any special
circumstances.
                                                            C.
         Green also challenges the district court’s conclusions on the second and fourth Sell factors,10
namely whether the district court correctly concluded that involuntary medication would
significantly further the government’s interest and whether it is medically appropriate for Green.
These remaining considerations consist of factual findings; therefore the district court’s conclusions
as to those will be reviewed for clear error. See also United States v. Hernandez-Vasquez, 

, 915-916 (9th Cir. 2008) (“We...review the district court’s determination with regard to the first
Sell factor de novo and the remaining Sell factors for clear error.”) (citation omitted); United States
v. Evans, 

, 236 (4th Cir. 2005) (“The district court's determination that the
government's interest is ‘important’ is a legal conclusion that we review de novo, although we
review any factual findings relevant to this legal determination for clear error.”) (citations omitted);
United States v. Gomes, 

, 160 (2d Cir. 2004) (finding that district court determinations
as to Sell factors two, three, and four were factual and thus subject to review for clear error). In our
Circuit, a factual finding is clearly erroneous only when “‘the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’” Tran v. Gonzales,

, 943 (6th Cir. 2006) (citing Heights Cmty. Cong. v. Hilltop Realty, Inc., 

,
140 (6th Cir.1985)).
        Specifically, Green contends that the district court’s Sealed Order effectively issued a “blank
check” to the government to medicate Green by failing to require a specific treatment plan with
specific medications, amounts of medication, and an appropriately specific consideration of the
potential side effects on Green given his history of diabetes. It appears Green’s argument in this
regard goes most appropriately to his challenge of the district court’s finding as to the fourth factor,
but because Green specifically questions the finding as to factor two, we address it as well.
        Having determined that involuntary medication will significantly further an important
government interest, the district court must find that “administration of the drugs is substantially
likely to render the defendant competent to stand trial” and that “administration of the drugs is
substantially unlikely to have side effects that will interfere significantly with the defendant's ability
to assist counsel in conducting a trial defense, thereby rendering the trial unfair.” 

(citations omitted). In reviewing the district court’s factual findings on this second factor, we
conclude there was no clear error.
        In reaching its conclusion that the second factor had been satisfied by the government by
clear and convincing evidence, the district court relied upon the following:
                 The Government’s experts both testified that the proposed medications were
         substantially likely to render the Defendant competent to stand trial. The statistical
         data cited in their opinions found improvement in a range of approximately 76% to
         93% of those treated. Dr. Sigurdson described the history of mental health treatment
         received by the Defendant, as set forth in the available records, and opined that the



         10
             The Sell Court set forth the third factor as requiring the court to “conclude that involuntary medication is
necessary to further those interests.” 

. In this vein, there must be a finding that “any alternative,
less intrusive treatments are unlikely to achieve substantially the same results” and “the court must consider less intrusive
means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering
more intrusive methods.” 

Here, because Green does not challenge the district court’s finding that
the government proved this element by clear and convincing evidence, the Court need not address it.
No. 06-6186                    United States v. Green                                          Page 12


       Defendant would likely respond well to medication as he has responded well to
       treatment in the past.
               Dr. Griffin did not dispute that the proposed medications would likely restore
       the Defendant to competence. Dr. Griffin cited lower statistics in discussing the
       Defendant’s likely response to medication, but explained that the statistics he quoted
       related to restoring an individual to “wellness” rather than competency.
                As to side effects, Dr. Sigurdson testified as to the likely side effects of the
       types of medications she would likely prescribe, and described the treatment she
       would prescribe to alleviate those side effects. Nothing in the testimony of the
       experts suggests that the likely side effects would interfere significantly with the
       Defendant’s ability to assist counsel. Thus, the Court finds that involuntary
       treatment is substantially likely to render the Defendant competent, and is
       substantially unlikely to have side effects that will interfere significantly with his
       ability to assist counsel.
The hearing testimony of the witnesses confirm that the district court correctly assessed that
involuntary medication was substantially likely to render Green competent to stand trial, and that
such medication likely would not have side effects that would interfere with Green’s ability to assist
his counsel. To the contrary, without medication, Green appeared to distrust his counsel and refused
to talk to her or meet with her at times during his evaluations and confinement. At one point, Green
denied having ever met with an attorney. The medical records suggest that Green’s quality of life
and communications with others improved drastically while taking anti-psychotic medications.
Thus, the medication presumably will only improve Green’s relationship with his counsel, and his
ability to participate effectively in this trial. Dr. Sigurdson testified that medication was more than
ninety percent likely to restore Green’s competency. Such an undisputed high probability of success
certainly meets the “substantial likelihood” requirement mandated by Sell and any minimum
standard recognized as appropriate by our sister circuits. See e.g., United States v. Gomes, 

, 161-162 (2d Cir. 2004) (noting that seventy percent chance defendant will be restored to
competency is “substantial likelihood”); United States v. Ghane, 

, 319-320 (8th Cir.
2004) (ten percent insufficient to meet substantial likelihood of restored competence).
         Dr. Griffin, Green’s expert witness, did not dispute these findings, but rather focused on
achieving complete “wellness” rather than trial competence through varying treatments. Even if Dr.
Griffin is correct, the question of competence is the one before this Court. He agreed that the
proposed treatment plans likely would restore Green’s competency, although he cited lower statistics
regarding the potential response rate as between 25-75 percent. That is a potential response rate,
and did not address Green specifically. Further, he did not dispute that Green’s relationship with
his counsel would improve, nor did he dispute that receiving these medications would improve his
abilities to participate substantively in his defense at trial.
        Finally, and contrary to the impression left by the dissent, the record reveals specific
consideration of the side effects of anti-psychotic medications on Green generally and their potential
impact on his diabetes. Dr. Sigurdson testified specifically about the impact of first and second
generation drugs on the development of diabetes, and then specifically addressed the impact of
antipsychotic medications on individuals, like Green, who already have diabetes. She noted that the
primary side effect for Green would be potential weight gain, a matter that would need to be
monitored, and which he had experienced previously when taking Zyprexa voluntarily. On these
facts, we are not “left with the definite and firm conviction that a mistake has been committed” by
the district court as to this factor. See Tran v. Gonzales, 

, 943 (6th Cir. 2006) (citing
Heights Cmty. Cong. v. Hilltop Realty, Inc., 

, 140 (6th Cir. 1985)).
No. 06-6186                           United States v. Green                                                       Page 13




                                                             D.
         Green also challenges the district court’s conclusion that the proposed course of treatment
was medically appropriate for him. Green raises this challenge based on his assertion that Sell
requires a more particularized order than the one entered by the district court here. Specifically, the
district court held that the Bureau of Prisons was authorized to involuntarily medicate Green
“consistent with the prevailing standard of care for mental health professionals” for a period of four
months or less if competency was restored, at which point a status report must be filed. Although
the district court heard testimony, and obviously considered the alternative treatment plans offered
by Dr. Sigurdson and Dr. Griffin, the Sealed Order did not make any reference to the specific
medications, dosages, or length of treatment. In its Sealed Memorandum accompanying the Sealed
Order, however, the district court generally outlined its reasoning for adopting the course of
treatment proposed by Dr. Sigurdson at the hearing, although it did not provide a verbatim recitation
of that treatment plan in either the Sealed Order or Memorandum. Although the dissent suggests
otherwise, we do not dispute the general principle that a district court speaks through its “orders.”
To be sure, our holding rests not just on the Sealed Order, but also11the reasoning and analysis
outlined in the district court’s accompanying Sealed Memorandum. To hold otherwise would
elevate form over substance in determining the appropriateness of the directive issued here.
        Green’s challenge surrounds Dr. Sigurdson’s testimony regarding alternative treatment plans
with different medications, neither of which could she commit to until she had the opportunity to
determine whether, after the district court’s ruling, Green would agree to take the medication in a
pill form or require intravenous injection. He asserts that, by allowing the involuntary medication
“consistent with the prevailing standard of care for mental health professionals” the district court
violated certain progeny, and specifically United States v. Evans, 

(4th Cir. 2005) and
United States v. Hernandez-Vasquez, 

(9th Cir. 2008),12 by issuing a “blank check”
for “carte-blanche” medical treatment.
        Pursuant to the dictates of Sell, the district court must have concluded that “administration
of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical
condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of
antipsychotic drugs may produce different side effects and enjoy different levels of success.” Sell,

, 182 (2003).
        In Evans, the Fourth Circuit found that the lower court erred in ordering involuntary
medication where the report failed to identify the medication which would be given the defendant,
or any proposed course of treatment as it related to the defendant as an individual and his “particular
mental and physical condition.” 

. There, the government simply discussed


         11
            The dissent challenges the lack of specificity contained in the Sealed Order, but asks the majority to ignore
the accompanying memorandum which contains the rationale the dissent seeks, because the district court chose to create
two separate documents. We cannot subscribe to a theory of appellate review which ignores the document containing
the very rationale we are asked to require. This is not to say that an order similar to the one at issue here, standing alone,
would pass muster under Sell, but in this case, the district court’s findings are sufficient. The Sealed Memorandum
sufficiently addresses the issues presented and the separate Sealed Order arguably was unnecessary. In Section IV of
its Sealed Memorandum, the district court states the verbatim language contained in the “Sealed Order” and then states
“It is so ORDERED.” The Sealed Order contains no information or language not already present in the Sealed
Memorandum, and this is not a situation where the court’s failure to act is in some way construed as a pronouncement.
See Bell v. Thompson, 

, 804 (2005).
         12
              Green submitted this supplemental authority after the briefing and oral argument had been completed in this
case.
No. 06-6186                          United States v. Green                                                    Page 14


anti-psychotic drugs and their benefits and burdens in a general manner that in no way considered
the particularized medical needs of the defendant in question. For example, the report did not
address the potential side effects of a medication on Mr. Evans, an elderly man with diabetes,
hypertension, and asthma, or its interaction with other medications to treat those ailments. The
report did not identify the specific medication to be used much less a dosage range. See 

242. Accordingly, the Evans Court required more from the government, and appropriately so.
         The Fourth Circuit requires the government to “show that its proposed treatment plan is
‘medically appropriate’” by explaining “why it proposed the particular course of treatment, provide
the estimated time the proposed treatment plan will take to restore the defendant's competence and
the criteria it will apply when deciding when to discontinue the treatment, describe the plan's
probable benefits and side effect risks for the defendant's particular medical condition, show how
it will deal with the plan's probable side effects, and explain why, in its view, the benefits of the
treatment plan outweigh the costs of its side effects.” See 

        Likewise, in Hernandez-Vasquez, the Ninth Circuit held that an order which provides only
that the “method of treatment and type of medication to be used shall be at the discretion of the
treating medical professionals within the Bureau of Prisons” and expecting the government and the
defendant to pursue “an agreed-upon course of treatment” did not meet the requirements of Sell. See

. The lower court there allowed the physician to start with a
“second-generation” medication, determine whether there was improvement, and then determine
whether a different type of medication would be appropriate. See 

broad delegation of
authority leaves the Bureau of Prisons with unfettered discretion in treating a defendant, and such
discretion renders the judicial inquiry merely “academic.” See 

Accordingly, the appellate
court held that the minium requirements for a Sell order are as follows:
         (1) the specific medication or range of medications that the treating physicians are
         permitted to use in their treatment of the defendant, (2) the maximum dosages that
         may be administered, and (3) the duration of time that involuntary treatment of the
         defendant may continue before the treating physicians are required to report back to
         the court on the defendant's mental condition and progress. We stress that while the
         court may not simply delegate unrestricted authority to physicians, the restrictions
         it does impose should be broad enough to give physicians a reasonable degree of
         flexibility in responding to changes in the defendant's condition. Moreover, the
         Government or the defendant may move to alter the court's order as the
         circumstances change and more becomes known about the defendant's response to
         the medication.

(9th Cir. 2008) (emphasis added).13
         Both the Fourth and Ninth Circuits set forth parameters to ensure the government meets its
burden under the fourth Sell factor. These cases are distinguishable from the record before us where
the government clearly met its burden, and in fact, would have done so under the parameters set
forth by our sister circuits, but the district court failed to include the specific treatment plan before
it in its written order. Its reasoning, however, demonstrates that the district court here clearly


         13
            The Ninth Circuit issued its original decision on October 31, 2007, however the government moved for re-
hearing. Although the appellate court denied the government’s motion, it amended the cited paragraph as part of its order
and issued a superseding opinion. The italicized portion denotes the amendment. The previous paragraph contained the
following language instead: “By setting such parameters within which physicians must operate, district courts will leave
physicians enough discretion to act quickly to respond to changes in the defendant’s condition.” United States v.
Hernandez-Vasquez, 

, 819 (9th Cir. 2007) amended and superseded by 

, 916-17 (9th Cir.
2008).
No. 06-6186                   United States v. Green                                        Page 15


considered the treatment plans offered both by the United States and Green, and determined that
involuntary medication was appropriate in this case in accordance with the plan set out by Dr.
Sigurdson.
       For example, in its accompanying Sealed Memorandum, the district court noted the
following relevant testimony and evidence:
       Dr. Sigurdson testified at length about the possible medications to treat psychotic
       disorders, described the medications she would likely prescribe for the Defendant
       after consultation with her colleagues, and explained the reasons for her conclusions.
       She testified that the proposed course of treatment would be in the Defendant’s best
       interests by improving his quality of life beyond restoration of competency. She
       testified that given the Defendant’s present condition, it is unlikely that he would
       even be able to live on his own outside the prison setting. Without medication, Drs.
       Simcox and Sigurdson both testified, Defendant’s condition is likely to worsen.
       Other than placing a greater emphasis on attempting to persuade the Defendant to
       take medications through therapy, Dr. Griffin did not seriously dispute Dr.
       Sigurdson’s testimony and conceded that he did not practice in the prison setting.
Again, we cannot conclude that the district court committed clear error in reaching this factual
finding.
        Both witnesses who testified on behalf of the government had significant contact with Green
during his confinement and evaluation periods. Their testimony included specific and particularized
medical opinions as they related to Green in light of his past mental health treatment, his current
status and behaviors, the onset and management of his diabetes, as well as his responses to various
mental health treatments at different periods of his life, including times during which he was a
diabetic and those when he was not. Further, Dr. Sigurdson prepared a chronological chart detailing
this information for the district court.
        With respect to the proposed treatment plan, Dr. Sigurdson testified that if Green were
willing to take an oral medication, she would prescribe Geodon and noted the specific dosage she
would prescribe. She then discussed the potential side effects of this medication and noted that it
would not likely exacerbate the weight gain concern as it related to Green’s diabetes. Dr. Sigurdson
also offered an alternative treatment plan in the event Green required a forcible injection. She
recommended the injection of Haldol, noted the specific dosage, and discussed the potential side
effects in light of Green’s specific medical condition - diabetes - and his current prescribed
medications. Finally, she noted that if Green decided he wanted to voluntarily return to taking
Zyprexa, the anti-psychotic oral medication he had taken in the past, she would not object given the
importance of forming a therapeutic alliance with Green.
       Significantly, Dr. Griffin, Green’s expert, did not disagree with Dr. Sigurdson’s medical
recommendations or proposed treatment plan, other than to indicate a preference for therapeutic
treatment over forced medication. More importantly, Dr. Griffin established the firm caveat that he
had no experience in the prison setting and had great respect for the professional abilities of both
Drs. Sixcox and Sigurdson. In light of the record before the district court, we do not find that it
committed a clear error in determining that involuntary medication as set forth in the record was
medically appropriate for Green. See Tran v. Gonzales, 

, 943 (6th Cir. 2006) (citing
Heights Cmty. Cong. v. Hilltop Realty, Inc., 

, 140 (6th Cir.1985)).
       There is no evidence in the record to refute the conclusion that anti-pyschotic medication is
in Green’s best medical interest. Moreover, the proposed treatment plans recommended by Dr.
Sigurdson, regardless of the drug, take into consideration the particularized medical needs of the
No. 06-6186                    United States v. Green                                          Page 16


individual defendant, Green. It sets forth the specific medications, alternative means of injecting
it, the specific dosage, and the potential side effects Green could face. The fact that Dr. Sigurdson
offered alternatives depending on Green’s reaction to forced medication only supports the
individualized and appropriately tailored nature of her treatment plan. Offering alternatives does
not alone render a proposed treatment plan defective for purposes of a Sell finding. See e.g., 

, fn 14 (“We do not imply that the government may set forth only one treatment plan.
Instead, the government may set forth alternative treatment plans in the event the primary treatment
plan is defective for one reason or another.”). Even the authority cited by Green acknowledges this
point. United States v. Hernandez-Vasquez, 

(9th Cir. 2008).
        Finally, we are not inclined to find a lack of specific directives fatal to the propriety of the
Sell Order here. This is not a situation, such as that presented in Evans or Hernandez-Vasquez,
where the government failed to present sufficient evidence to meet its burden, or a case where the
defendant was denied the opportunity to present any independent medical evidence. See e.g., United
States v. Rivera-Guerrero, 

(9th Cir. 2005) (finding error where a district court relied
exclusively on the government’s physicians, and failed to grant the defendant a continuance to
obtain its own expert in Sell proceeding). Rather, it is a situation where the district court simply
chose not to incorporate all the evidence presented to it in its written order. Therefore, we assume,
as did the district court, that Green will be medicated in accordance with the proposed treatment
plans of Dr. Sigurdson as described at the hearing below. Further, how the plan is implemented
depends, in part, on whether Green voluntarily takes the medication orally, or whether it must be
given by injection.
        A district court is not in the position, and does not possess the requisite knowledge to dictate
a precise course of medical action for any defendant. Nor should it in order to avoid the “blank
check” appellate challenge raised here. We require that the record is clear that physicians exercise
their medical judgment and make decisions in accordance with prevailing medical standards, all
while taking into account the particular needs and decisions of the individual patient. As noted, the
detailed record before us shows a treatment plan with the specific medication or range of
medications to be administered by the Bureau of Prisons, and under what circumstances each will
be administered (e.g., voluntarily or forcibly), as well as the expected dosages and the expected time
frame for achieving competence.
       At the hearing in this case, Dr. Sigurdson outlined exactly this information for the district
court. Green may consent to oral medication, and that course of treatment would be different than
the one described with forcible injections. Having made the determination that each course of
treatment recommended by Dr. Sigurdson is sufficiently tailored in its own right, we find that
providing the Bureau of Prisons physicians the latitude and flexibility to adjust their treatment
options to the responses provided by the patient, Green, is not only consistent with the Supreme
Court’s holding in Sell, but required by it in order to ensure that any course of treatment is medically
appropriate. In the final analysis, Green asks us to substitute our Juris Doctor for a Medical Doctor.
We decline to do so.
                                                 III.
       For these reasons, we AFFIRM.
No. 06-6186                     United States v. Green                                            Page 17


                                         _________________
                                             DISSENT
                                         _________________
         DAMON J. KEITH, Circuit Judge, dissenting. In its zeal to render Green competent to stand
trial, the majority has given carte blanche to the government to forcibly administer whatever
antipsychotic drugs it desires, whenever it chooses, using whichever method it deems appropriate.
In so doing, the Court displays an astonishing indifference and disregard for Green’s constitutional
liberty interests. Because our Constitution demands so much more, I dissent.
         The Supreme Court has long stressed the “significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth
Amendment.” Washington v. Harper, 

, 221-22, 

, 

(1990); accord Sell v. United States, 

, 178, 

, 

(2003).
Indeed, “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the
right of every individual to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law.” Union Pac. R. Co. v.
Botsford, 

, 251, 

, 

(1891). Only an essential or overriding
state interest can overcome that constitutionally protected liberty interest. Riggins v. Nevada, 

, 

, 

(1992). While the Supreme Court noted that, “in certain
instances,” the government may deprive an individual of his liberty interest to refuse medical
treatment, it emphasized that “those instances may be rare.” 

. It is with respect
for the sacred right of individuals to refuse unwanted medical treatment that I must evaluate the
district court’s order authorizing the government to forcibly medicate Green.
                                                    I.
        In determining whether this case is a “rare” instance in which such orders are constitutionally
permissible, Sell requires this Court to decide whether: (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) “the administration of
the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical
condition.” 

-81 (emphasis in original). Not only must these four factors be met,
but they must be demonstrated by “clear and convincing” evidence. See United States v. Gomes,

, 160 (2d Cir. 2004).
        While I agree with the majority’s holding that important governmental interests are at stake,
I strongly disagree with the majority’s conclusion that the second, third, and fourth factors are also
satisfied. The district court’s Order and the government’s evidence neglected to identify the specific
antipsychotic drug (or drugs) to be administered, the dosage range for that mystery drug, and the
method of administration. Without these specifics, I fail to see how the majority can conclude that
the second, third, and fourth Sell factors have been established under any standard—much less the
“clear and convincing” standard.
                                                    II.
        The second Sell factor requires the court to find that involuntary medication will
“significantly further” the government’s interests. 

. In so doing, the court must
decide (1) “that administration of the drugs is substantially likely to render the defendant competent
to stand trial[,]” and (2) “that administration of the drugs is substantially unlikely to have side effects
that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial
defense, thereby rendering the trial unfair.” 

                         United States v. Green                                                    Page 18


        Here, the district court, relying on testimony from medical experts, concluded that forced
medication is “substantially likely” to render Green competent to stand trial. (J.A. 239-40.) One
of those experts, Dr. Donna Christine Sigurdson, testified that the fact that Green had responded well
to treatment in the past indicates that the administration of antipsychotic drugs is substantially likely
to restore Green’s competency to stand trial. (J.A. 104-24.) When pressed on which specific
antipsychotic drug she would administer to Green, Dr. Sigurdson testified that the antipsychotic
drug, “if it was injectable,” could “either be Geodon or Haldol.” (J.A. 138.) (emphasis added). But
she did not commit to a particular drug, stating, “I am not trying    to be funny. I can’t give you an
honest answer that I know right now this day which I’d use.”1 

conclusion of the hearing, it was not at all clear which antipsychotic drug (or drugs)
would be forcibly administered to Green. And therein lies the fatal flaw in the government’s
evidence—an utter lack of specificity. Although testimony was offered about the different types of
antipsychotic medication (such as “first generation” and “second generation” antipsychotic drugs,
and “Haldol” and “Geodon”), the government never committed to any specific drug (or drugs) that
it planned to administer to Green. Dr. Sigurdson said that there were several possible drugs that she
could administer, but that the ultimate choice would be made through a “consensus” with her
colleagues. (J.A. 136.)
        Treatment without a specific plan can exert harmful consequences not only on Green’s
medical condition but also on his ability to stand trial. Certain types of “antipsychotic drugs   might
have side effects that would interfere with the defendant’s ability to receive a fair trial.”2 

. Some antipsychotic medications may actually render Green incompetent to stand trial.
“Without at least describing the proposed course of treatment, it is tautological that the Government
cannot satisfy its burden of showing anything with regards to that treatment, much less that it will
‘significantly further’ the Government’s trial-related interests and be ‘medically appropriate’ for”
Green. 

(emphasis added). The description of the proposed treatment, at the
very least, “must identify: (1) the specific medication or range of medications that the treating
physicians are permitted to use in their treatment of the defendant, (2) the maximum dosages that
may be administered, and (3) the duration of time that involuntary treatment of the defendant may
continue . . .” United States v. Hernandez-Vasquez, — F.3d —, 

, * 1 (9th Cir. Jan.
22, 2008). In order to meet the first prong of Sell, therefore, “[t]he government must propose a
course of treatment in which it specifies the particular drug to be administered.” United States v.
Evans, 

, 240 (4th Cir. 2005).
        The fatal vagueness of the government’s planned proposal is underscored by the district
court’s Order. The district court must determine “[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.” 

. Instead, the district court, in the
most general terms possible, authorized the government “to involuntarily medicate the Defendant,
consistent with the prevailing standard of care for mental health professionals, to restore [] [Green]
to competence” to stand trial. (J.A. 243.) (emphasis added). But what exactly does the district court
mean by “consistent with the prevailing standard of care for mental health professionals”? And


         1
          Although the majority states that “Dr. Sigurdson provided detailed testimony regarding . . . the proposed
treatment plan for Green,” her testimony was at best speculative, as she refused to commit to a specific drug.
         2
          For instance, “a patient taking 800 milligrams of Mellaril each day might suffer from drowsiness or confusion.”

. The administration of Mellaril, therefore, could fail to render Green competent to stand trial
because “such side effects [could have] an impact upon not just [the defendant’s] outward appearance, but also the
content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his
communication with counsel.” 

.
No. 06-6186                    United States v. Green                                          Page 19


more importantly, how does this “prevailing standard of care” affect Green? The district court’s
Order does not tell us. Nor does the record.
        It is any wonder then that the majority can reasonably conclude that the government’s
treatment—exactly what treatment, we do not know—is “substantially likely” to render Green
competent to stand trial. As the Fourth Circuit recognized, “[t]o approve of a treatment plan without
knowing [or specifying] the proposed medication and dose range would give prison medical staff
carte blanche to experiment with what might even be dangerous drugs or dangerously high dosages
of otherwise safe drugs and would not give defense counsel and experts a meaningful ability to
challenge the propriety of the proposed treatment.” 

. Simply put, an
unknown drug can never be substantially likely to do anything but keep its anonymity.
         Although the majority claims that requiring more specificity would result in “substitut[ing]
[the court’s] juris doctor for a medical doctor,” this argument overstates what Sell requires. Sell
does not demand that the court act as a physician; it only calls for some specificity so that courts
could accurately determine whether, by “clear and convincing” evidence, the government has met
the four-prong Sell test before forcibly administering drugs to Green. This standard, at the very
least, requires the government to identify the specific antipsychotic drug it plans to administer. See

(“Different kinds of antipsychotic drugs may produce different side effects and
enjoy different levels of success.”). With respect to the dosage level, “a reasonable range rather
than an exact dosage is appropriate.” 

(emphasis added). This sort of
flexibility would allow Green’s doctors “to adapt [his] treatment to fit the often vagarious bodily and
psychical responses to medical treatment,” 

the court with some assurance that
Green’s constitutional rights will not be violated. Thus, Sell permits a physician to exercise his or
her medical discretion provided that there is at least some specificity to court orders that delineates
the confines of forced medical treatment.
         The majority tries to take refuge in the district court’s August 24, 2006, Sealed Memorandum
(“Memorandum”), claiming that it provides the requisite specificity. But the Memorandum is not
the mandate of the court—the Order is. See Bell v. Thompson, 

, 805, 

,

(2005) (“Basic to the operation of the judicial system is the principle that a court
speaks through its judgments and orders.”). And the Order does not limit the government’s
authorization to “the proposed medical treatment.” In determining Green’s treatment, solely based
on the Order, doctors may easily decide to administer a drug that was never mentioned during the
district court proceedings, administer a drug that would produce negative effects on Green’s
diabetes, or even administer Mellaril, a first-generation drug that may impair competency to stand
trial and that Justice Kennedy indicated should be forbidden except upon an “extraordinary
showing.” 

(Kennedy, J., concurring). Moreover, the Memorandum
itself provides absolutely no specificity; the Memorandum never mentions a single antipsychotic
drug that could potentially be administered to Green. (J.A. 236-42.)
        There is, therefore, no clear and convincing evidence that administration of the drugs is
substantially likely to render Green competent to stand trial—for the Court does not even know what
that drug is. In short, if we do not know (and the district court’s Order does not tell us) the specific
antipsychotic medication with which Green is to be forcibly medicated, there cannot be clear and
convincing evidence that the forced administration of it is substantially likely to render Green
competent to stand trial. The district court accordingly committed clear error in concluding that
involuntarily medicating Green would significantly further the Government’s interest in bringing
him to trial.
No. 06-6186                    United States v. Green                                          Page 20


                                                  III.
        The district court’s Order also fails the third prong—the requirement that the involuntary
medication is “necessary.” In assessing this prong, “[t]he court must find that any alternative, less
intrusive treatments are unlikely to achieve substantially the same results.” 

.
The government cannot demonstrate that involuntarily-administered antipsychotic medication is
“necessary” if the government has not proffered clear and convincing evidence that the treatment
would substantially further the government’s interests. Unless there is evidence regarding the
specific type of antipsychotic drug the government plans to administer to Green, it is impossible for
the court to determine whether “any alternative, less intrusive treatments” are likely to achieve
substantially the same results. 

drugs may be taken orally (which would
appear to be less intrusive); others must be injected (inherently more intrusive). But again, without
knowing which antipsychotic drug the government plans to administer to Green, this Court cannot
accurately determine whether Green’s treatment is necessary and whether there is an alternative, less
intrusive treatment.
                                                  IV.
        Finally, the fourth Sell requirement—“that administration of the drugs is medically
appropriate, i.e., in the patient’s best medical interest in light of his medical condition”—is not met.

original). Green suffers from diabetes which may be aggravated by the
administration of certain antipsychotic medications. Although Dr. Sigurdson testified about the
relationship between diabetes and different types of antipsychotic medications, (J.A. 118-23), such
generalizations hold little weight in the face of the required specificity of Sell. Where, as here, the
government fails to commit to a specific medication or series of medications, there cannot be a clear
and convincing showing that the administration of the antipsychotic drugs is in Green’s best interest.

(vacating an order in which there was no discussion as to why the defendant,
“an elderly man with diabetes, hypertension, and asthma who takes a number of medications to treat
these conditions, would” be medically appropriate.).
         And, even if there were “clear and convincing” evidence to this effect, the district court’s
Order certainly does not limit the government’s authorization to forcibly administer antipsychotics
that would not exacerbate Green’s diabetes. It follows, therefore, that without specifying the course
of treatment, the district court cannot accurately measure Green’s best interests in light of his
medical condition. As the Supreme Court noted in Sell, “[t]he specific kind of drugs at issue may
matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects
and enjoy different levels of 

. Accordingly, it was clear error for the
district court to sweepingly conclude that antipsychotic drugs were in Green’s best interests.
                                                  V.
        There is little evidence—much less “clear and convincing” evidence—that the forced
administration of antipsychotic drugs to Green would “significantly further” the government’s
interests, that it is even “necessary” to further those interests, and that forced medication is
“medically appropriate” for Green. These determinations cannot be made without knowing (with
specificity) which antipsychotic drug and what dosage of that drug would be administered. In its
opinion, the majority substitutes judicial checks on forced medical treatment with a blank check,
allowing physicians to do as they wish with a resistant patient. I DISSENT.