United States v. Michael Sanderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6274

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL SANDERSON,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-00331-GRA-1)

Argued: January 30, 2013 Decided: May 29, 2013

Before DAVIS, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Diaz wrote the majority
opinion, in which Judge Thacker joined. Judge Davis wrote a
dissenting opinion.

ARGUED: Benjamin Thomas Stepp, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina, for Appellant. Jeffrey
Mikell Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: Kimberly H. Albro,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, Robert F. Daley, Jr., Maxwell
B. Cauthen, III, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
DIAZ, Circuit Judge:

Michael Sanderson was indicted for failing to register as a

sex offender in South Carolina, in violation of 18 U.S.C.

§ 2250. The district court determined that Sanderson is

incompetent to stand trial and ordered that he be involuntarily

medicated in an attempt to restore competency. Sanderson

appeals, claiming that involuntary medication, in this instance,

does not comply with the requirements of the Fifth Amendment’s

Due Process Clause. For the reasons that follow, we affirm.

I.

In 1998, Sanderson was convicted of attempted aggravated

sexual battery in Virginia state court, based on an incident

involving an eleven-year-old girl. Because of his conviction,

Sanderson was required to register as a sex offender. He was

convicted twice in Virginia state court for failing to register.

Toward the end of 2010, Sanderson moved to South Carolina,

where he again allegedly failed to register. After Sanderson

missed a scheduled meeting with a probation officer in Virginia,

a warrant was issued for his arrest. Thereafter, federal

authorities arrested him at a motel in Greenville, South

Carolina. Sanderson’s motel room was littered with pornographic

pictures and contained an intricate memorial to a country music

star, who Sanderson claimed was his common law wife. A federal

3
grand jury indicted Sanderson for failing to register pursuant

to the Sex Offender Registration and Notification Act (“SORNA”),

in violation of 18 U.S.C. § 2250.

Following the indictment, Dr. Dawn Graney, a forensic

psychologist at the Federal Correctional Institution, Butner

(“FCI Butner”), provided the court with an initial mental health

evaluation, which summarized Sanderson’s lengthy history of

mental health treatment. Dr. Graney offered a diagnosis of

Personality Disorder Not Otherwise Specified with Antisocial

Features and provisional diagnoses of Schizoaffective Disorder,

Alcohol Dependence with Physiological Dependence in a Controlled

Environment, and Paraphilia Not Otherwise Specified. During the

evaluation, Sanderson was defensive, rejected the diagnosis of

mental illness, and refused to take medication. Dr. Graney

concluded that Sanderson would be unable to assist in his own

defense, but that there was a substantial probability that

antipsychotic medications could restore Sanderson’s competency.

On July 6, 2011, a magistrate judge conducted an initial

competency hearing and (1) held that Sanderson was not competent

to stand trial; and (2) ordered that Sanderson remain at FCI

Butner for further treatment.

Several months later, Dr. Byron Herbel and Dr. Robert

Cochrane submitted a second forensic evaluation report. They

diagnosed Sanderson with Schizophrenia, Paranoid Type, with

4
Interepisode Residual Symptoms; Alcohol Dependence in Early Full

Remission in a Controlled Environment; Cannabis Abuse in Early

Full Remission in a Controlled Environment; Paraphilia Not

Otherwise Specified; and Antisocial Personality Disorder. Drs.

Herbel and Cochrane noted that prior evaluations described

Sanderson as being a moderate risk to reoffend; however, they

offered no independent opinion concerning Sanderson’s risk for

recidivism as a sex offender.

Drs. Herbel and Cochrane concluded that Sanderson remained

incompetent to stand trial. They also found that involuntary

medication was substantially likely to return Sanderson to

competency and substantially unlikely to have side effects that

would interfere significantly with Sanderson’s ability to assist

in his own defense. Drs. Herbel and Cochrane proposed a

specific treatment plan, which they concluded to be medically

appropriate.

The district court held a second competency hearing, at

which Dr. Herbel was the only witness. Consistent with his

report, Dr. Herbel testified that there was a substantial

probability that antipsychotic medications would restore

Sanderson’s competency to stand trial and that less intrusive

measures would not be effective. Dr. Herbel also testified that

there was no evidence that Sanderson posed any danger to himself

or others and that Sanderson would therefore be unlikely to

5
satisfy the criteria for civil commitment. At the conclusion of

the hearing, the court indicated it would order that Sanderson

be involuntarily administered antipsychotic medications. On

January 30, 2012, the court issued a written order.

This appeal followed. We have jurisdiction to review the

district court’s interlocutory order pursuant to Sell v. United

States, 539 U.S. 166, 176-77 (2003) (holding that an order to

involuntarily medicate a defendant is an appealable “collateral

order”).

II.

A.

Sanderson contends that the district court erred in

granting the government’s request that he be involuntarily

administered antipsychotic medications. To assess that

contention, we consider whether the record evidence presents

special circumstances sufficient to overcome the government’s

concededly significant interest in prosecuting Sanderson’s

alleged SORNA violation. We review the district court’s

analysis of this issue de novo. United States v. White, 620

F.3d 401, 410 (4th Cir. 2010).

An individual has a constitutionally protected liberty

interest in avoiding involuntary administration of antipsychotic

drugs, which may only be overcome by an “essential” or

6
“overriding” state interest. Sell, 539 U.S. at 178-79. The

Supreme Court has suggested that the instances in which the

government may seek such a remedy to restore a defendant’s

competency to stand trial “may be rare,” id. at 180, and we too

have cautioned against making this a routine remedy, see White,

620 F.3d at 422.

When the government seeks to forcibly medicate a defendant

to stand trial, the Due Process Clause requires that the

government establish by clear and convincing evidence that (1)

important governmental interests are at stake and not outweighed

by special circumstances that diminish those governmental

interests; (2) involuntary medication will significantly further

those governmental interests; (3) involuntary medication is

necessary to further those interests; and (4) the administration

of the drugs is medically appropriate. Sell, 539 U.S. at 180-

81; United States v. Bush, 585 F.3d 806, 813-14 (4th Cir. 2009).

With respect to the first factor, the Supreme Court has

provided an illustrative list of “special circumstances” that

could override an important governmental interest: (1) the

potential for civil confinement; (2) the potential for future

confinement for a defendant who regains competence; and (3) the

length of the defendant’s incarceration while charges are

pending. Sell, 539 U.S. at 180.

7
 In White, we concluded that the government’s interest in

prosecuting a defendant for conspiracy, credit card fraud, and

identity theft did not outweigh her liberty interest. 620 F.3d

at 422. In doing so, we relied on four special circumstances:

(1) White would likely have spent a “significant amount of time”

in pretrial detention in relation to her likely sentence before

her trial could even begin; (2) White’s alleged crimes were

entirely non-violent; (3) White would likely not pose a threat

to the public, because she would not be permitted to carry a

firearm; and (4) the proposed antipsychotic drugs had rarely

been tried on someone with White’s diagnosed condition. Id. at

413-14.

With this legal framework in place, we turn to consider the

parties’ contentions on appeal.

B.

Sanderson argues only that the government has failed to

satisfy the first Sell factor. While conceding that there is an

important governmental interest in prosecuting the SORNA

offense, Sanderson contends that the following special

circumstances of his case override the government’s interest in

prosecuting him: (1) the charged offense is non-violent and

victimless; (2) even if released, Sanderson will be monitored

under SORNA and remain on indefinite probation in Virginia; (3)

Sanderson does not pose any danger to the public or himself, as

8
evidenced by his lack of criminal behavior in the last ten to

fifteen years, except for his failure-to-register offenses; (4)

Sanderson will have spent a significant amount of his likely

sentence in pretrial detention by the time he would be medicated

and tried; and (5) the government could easily try Sanderson

later if he regained competency because the evidence against him

is largely documentary and not dependent upon the memory of

witnesses.

The government contends that none of Sanderson’s supposed

special circumstances outweigh its interest in prosecuting the

charged offense. According to the government, it is irrelevant

that Sanderson’s alleged crime is non-violent because SORNA aims

to protect society from sex offenders by providing information

concerning their location. In the government’s view, the

charged offense is deemed serious because of the threat to

society as a whole. Second, the fact that Sanderson is already

subject to monitoring and supervision provides little comfort to

the government; Sanderson faces prosecution precisely because he

has ignored those requirements. Third, the government says that

Sanderson poses a threat if released because he is a sex

offender who has repeatedly violated his obligation to register

and has a history of violent offenses. Fourth, the government

contends that the length of Sanderson’s pretrial detention is

not long in relation to his likely sentence, and he is likely to

9
be restored to competency by antipsychotic medications.

Finally, the government posits that a trial may never occur

unless Sanderson receives medication because Sanderson is not

likely to regain competency on his own and even if he does, the

government may well face challenges locating Sanderson in the

future.

The district court agreed with the government. It

concluded that Sanderson’s failure-to-register offense, which

carries a ten-year maximum sentence, is a serious offense that

the government has an important interest in prosecuting. The

court rejected Sanderson’s argument that special circumstances

override that interest. First, it concluded that Sanderson’s

then eleven-month period of pretrial confinement was fairly

brief compared to his likely sentence. Second, it found that

Sanderson’s competence is likely to be restored by the

prescribed treatment plan. Therefore, the court concluded that

the first Sell factor was satisfied. The court also concluded

that the remaining Sell factors, which are not challenged on

appeal, were satisfied.

C.

We hold that the relevant special circumstances in this

case are insufficient to override the government’s interest in

prosecuting Sanderson for the charged SORNA offense.

Considering Sanderson’s purported special circumstances as a

10
whole, they present a less compelling argument against forcible

medication than the circumstances in White and fail to mitigate

the government’s interest in prosecuting him.

To begin with, the nature of the crime weighs in favor of

forcible medication. While Sanderson’s alleged SORNA violation

is technically a non-violent crime, the government correctly

notes that the purpose of failure-to-register laws is to protect

society as a whole from sex offenders. This stands in contrast

to the nature of the credit card fraud and identity theft crimes

charged in White, which, while certainly serious, are different

in both degree and kind.

Second, the monitoring requirements imposed by SORNA and

Virginia’s probation judgment do not help Sanderson here.

Indeed, the factual record is replete with instances of

Sanderson ignoring these requirements, including two convictions

in Virginia for failing to register, along with his absconding

from supervision in Virginia when he moved to South Carolina.

Third, the issue of whether Sanderson poses a public threat

weighs in favor of forcible medication. We acknowledge that

Sanderson has not been convicted of any crime, other than

failing to register, since 1998. Nor does the record contain

any evidence that Sanderson has been aggressive or violent

during that period. Nonetheless, Sanderson has a history of

violent offenses predating the offense giving rise to his

11
registration obligation, including assault with a deadly weapon,

various firearms offenses, and battery. Further, Sanderson’s

argument that he has not been prone to violence since 1998 is

undercut by the fact that he has spent a substantial amount of

that time in prison. And while Dr. Herbel’s opinion that

Sanderson “does seem to have some kind of sexual problems” is

not particularly compelling, J.A. 69, previous psychosexual

reports indicated that Sanderson was at a “moderate risk” to

reoffend in the community. Our concerns about Sanderson’s

record are buttressed by SORNA’s policy that previous sex

offenders should be monitored because they pose future threats.

And the fact that Sanderson, while posing a potential threat, is

not dangerous enough to be a candidate for civil commitment

weighs in favor of forcible medication because Sanderson will go

free if he is not restored to competency. See United States v.

Evans, 404 F.3d 227, 239 (4th Cir. 2005).

Fourth, the length of Sanderson’s pretrial detention does

not greatly mitigate the government’s interest. In White, the

defendant had spent nearly forty-one months in prison by the

time we issued the majority opinion in her case, a period of

confinement that the opinion’s author suggested might be close

to that she was likely to receive based on her Guidelines

12
sentence. See White, 620 F.3d at 418 (Davis, J.). 1 By

comparison, Sanderson had spent approximately two years in

pretrial detention 2 when we heard oral argument in this case. In

the district court, counsel estimated Sanderson’s Guidelines

sentence to be forty-one to fifty-one months’ imprisonment.

Assuming that this range is a reasonable estimate of Sanderson’s

expected prison sentence, the length of Sanderson’s pretrial

detention does not detract substantially from the government’s

interest in prosecuting him.

Apart from White, we have looked to the statutory maximum

in assessing the length of pretrial detention, a test under

which Sanderson fares worse. For example, we previously held

that two years of pretrial detention did not constitute a

significant “special circumstance” for a defendant facing a

potential eight-year sentence. Evans, 404 F.3d at 239.

Sanderson faces an even greater statutory maximum sentence of

ten years. Thus, while Sanderson’s extensive period of pretrial

detention weakens the government’s interest in prosecuting the

1
The Sixth Circuit recently cited favorably to this portion
of White and also measured the length of a defendant’s pretrial
detention against the Guidelines range. See United States v.
Grigsby, No. 11-3736, 2013 WL 1458009, at *9 (6th Cir. April 11,
2013).
2
We acknowledge that Sanderson’s treatment regimen may
extend to 12-14 weeks before he may be fit to stand trial.
Adding this period to the length of his pretrial detention does
not have a material impact on our analysis.

13
offense, it does not defeat it entirely under either the measure

employed in Evans or Judge Davis’s opinion for the court in

White. 3

Fifth, while it is true that the government will not be

substantially burdened in proving the offense if the case is

delayed, the record suggests that Sanderson will not regain

competence without medication. Therefore, the theoretical

potential of a future prosecution does little to weigh against

the government’s interest in trying Sanderson now.

Finally, the likely effectiveness of the prescribed

medication on Sanderson’s illness supports the government’s

request. Although this consideration appears to mirror the

second Sell factor--whether “administration of the drugs is

substantially likely to render the defendant competent to stand

3
Relying on his opinion in White, Judge Davis would also
factor into the period of pretrial detention the additional time
Sanderson will be detained “if he wishes to exhaust his
appellate rights” as well as any “good time credits” to which
Sanderson may be entitled. Post, at 23. It seems to us,
however, that whether Sanderson will exhaust his appellate
rights (and how long that will take) is entirely speculative, as
is the amount of good time credit (if any) that Sanderson may
earn while incarcerated. But even accepting that this
additional period of confinement is relevant to the analysis and
cuts against the government’s interest in prosecuting the
offense when compared to the estimated guidelines sentence
proferred by counsel, we are satisfied that the government
retains an “important interest in trying a defendant who is
charged with a crime that has the potential of [a ten-year]
prison term.” Evans, 404 F.3d at 239.

14
trial,” 539 U.S. at 181--we have previously used this as a

consideration in analyzing the first factor as well. White, 620

F.3d at 420-21. Unlike White, where the prescribed medication

had rarely been used to treat someone with the defendant’s

medical condition, see id., here medical professionals have

prescribed a treatment plan with a documented history of success

for individuals suffering, as Sanderson does, from paranoid

schizophrenia.

III.

In sum, the special circumstances present in this case do

not outweigh the government’s interest in prosecuting Sanderson.

Only the length of Sanderson’s pretrial detention constitutes a

special circumstance in his favor. But in light of the entire

record, that consideration alone is insufficient to defeat the

government’s interest in prosecuting Sanderson now for the

charged SORNA offense. We therefore affirm the district court’s

order.

AFFIRMED

15
DAVIS, Circuit Judge, dissenting:

I respectfully dissent.

I

At bottom, the majority’s concern appears to be that,

absent our affirmance of the involuntary medication order,

Sanderson will continue to live in society with an untreated

mental illness, contrary to the advice of doctors. However noble

that concern, Sell v. United States permits involuntary

medication only for the purpose of rendering a pretrial detainee

competent to stand trial, and only in those “limited

circumstances” in which the government’s interest in prosecution

is “essential” or “overriding.” 539 U.S. at 169, 178–79 (2003).

The government has failed to establish such an interest here.

If nothing else, the record shows that Sanderson has not

and will not register. There is no reason to believe that merely

convicting him (again) will impel him to do so. Today, he is a

mentally disordered, non-violent felon on lifetime probation in

the Commonwealth of Virginia. After he is forcibly medicated and

competently pleads guilty (as he undoubtedly will, see infra p.

24 n.6), he will become one of the more than a million mentally

ill inmates across the country. See U.S. Dep’t of Justice,

Bureau of Justice Statistics, Doris J. James & Lauren E. Glaze,

Mental Health Problems of Prison and Jail Inmates 1 (2006),

available at http://bjs.gov/content/pub/pdf/mhppji.pdf (“At

16
midyear 2005 more than half of all prison and jail inmates had a

mental health problem, including 705,600 inmates in State

prisons, 78,800 in Federal prisons, and 479,900 in local jails.

These estimates represented 56% of State prisoners, 45% of

Federal prisoners, and 64% of jail inmates.”). He may then

refuse his medication, increasing the likelihood that he will,

upon release, remain a mentally disordered, non-violent felon on

lifetime probation in the Commonwealth of Virginia, who probably

will not register. The idea that forced medication of Sanderson

will preclude the possibility that he will continue to live in

society with an untreated mental illness, contrary to the advice

of doctors, is fanciful, at best.

II

There are several more specific reasons I am compelled to

dissent.

As a preliminary matter, although the majority acknowledges

that the government bears the burden of proving, “by clear and

convincing evidence,” that “important governmental interests are

. . . not outweighed by special circumstances,” ante, at 7

(citing Sell, 539 U.S. at 180–81; United States v. Bush, 585

F.3d 806, 813–14 (4th Cir. 2009)), in light of the dramatically

weakened governmental interests discussed herein, it appears to

me to have applied a preponderance standard. See Jimenez v.

DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001)

17
(“[C]lear and convincing has been defined as evidence of such

weight that it produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established, and, as well, as evidence

that proves the facts at issue to be highly probable.”)

(internal quotation marks, citations, and alterations omitted).

In this case, the government falls short of meeting that heavier

burden, as the record fails to show it is “highly probable” that

either Sanderson, the government, or the public at large will

enjoy a lasting benefit by affirmance of the district court’s

order. See United States v. White, 620 F.3d 401, 422 (4th Cir.

2010).

Furthermore, contrary to the majority’s unsupported

assertion, the “nature of the crime” does not “weigh[] in favor

of forcible medication.” Ante, at 11. The relevant crime is

failure to register, not sexual assault, cf. United States v.

Myers, 598 F.3d 474, 477–78 (8th Cir. 2010) (noting that a

defendant’s act of sexually assaulting a child in 1996 was

distinct from his act of failing to register as a sex offender

in 2008), and, as the majority grudgingly concedes, failure to

register is non-violent, ante, at 11. Although “the purpose of

failure-to-register laws is to protect society . . . from sex

offenders,” the majority fails to explain how this truism

counsels in favor of forced medication. Every criminal

18
proscription aims to protect society from criminals. And like

the alleged credit card fraud and identity theft at issue in

White, failure to register is a non-violent crime, the nature of

which diminishes the government’s interest in prosecution. 620

F.3d at 419. This could hardly be more self-evident than with

respect to an offender already on lifetime probation.

Also, the majority overstates the significance of

Sanderson’s prior convictions for failure to register,

concluding that “monitoring requirements imposed by SORNA and

Virginia’s probation judgment do not help him.” Ante, at 11. In

fact, the prior convictions indicate that monitoring works,

insofar as the government has located Sanderson when he has

failed to check in with his probation officer. The very purpose

of SORNA is to track sex offenders and notify the public where

they live. United States v. Under Seal, 709 F.3d 257, 265 (4th

Cir. 2013). As already mentioned, to the extent that Sanderson’s

failure to comply with monitoring requirements endangers public

safety, the government has not shown that forcibly medicating

him to stand trial would more effectively protect the public. In

the first place, the government has shown no connection between

Sanderson’s failure to register and his refusal to take

antipsychotic medication. But even if such a connection exists,

forcibly medicating Sanderson for competency purposes will not

ensure that he continues the medication should he be convicted

19
and sentenced. Indeed, as the record shows, Sanderson has

stopped taking antipsychotic medication in the past, and the

government conceded at oral argument that he could not be forced

to continue taking the medication after conviction and

sentencing unless he posed a danger to himself or others. See

Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that the

Due Process Clause permits the government “to treat a prison

inmate who has a serious mental illness with antipsychotic drugs

against his will, if the inmate is dangerous to himself or

others and the treatment is in the inmate’s medical interest”).

The government’s own witness, Dr. Bryon Herbel, indicated that

the government is unlikely to make this showing because

Sanderson has exhibited no recent signs of “direct aggression,”

“violence” or “harm” toward himself, “others[,] or property of

others.” J.A. 50.

Next, the majority mistakenly suggests that Sanderson

“poses a public threat” that “weighs in favor of forcible

medication.” Ante, at 11. In reaching this conclusion, the

majority cites Sanderson’s “history of violent offenses,”

including “assault with a deadly weapon” and “battery,” id., but

overlooks details that diminish the apparent seriousness of

these crimes. For instance, although Sanderson was convicted of

assault with a deadly weapon in March 1991, he apparently was

confined only a few months: seven months later, he was arrested

20
for pedestrian soliciting rides or business. Similarly,

Sanderson was convicted of battery in September 1994, but

received only a 10-day sentence. Id. at 106. It is curious that

the majority believes it is better positioned to gauge the

seriousness of these past offenses than were the sentencing

judges. In any event, Dr. Herbel testified that Sanderson’s

recent history (the past 10 to 15 years) has been “relatively

free of direct aggression or violence or overt criminal behavior

aside from failure to register.” J.A. 50. Thus, contrary to the

majority’s assertion, Sanderson does not pose a public threat

absent medication.

Nor is it certain that Sanderson will simply “go free” if

we do not affirm the involuntary medication order. Ante, at 12.

Although the government may elect to dismiss the charges,

neither the government nor the majority has explained why

continued detention, for a reasonable amount of time, would

violate Sanderson’s due process, when forced medication would

not. 1 Moreover, “[e]very state provides avenues” for civil

1
To be sure, the government could not indefinitely detain
Sanderson. In Jackson v. Indiana, the Supreme Court held that

a person charged . . . with a criminal offense who is
committed solely on account of his incapacity to
proceed to trial cannot be held more than the
reasonable period of time necessary to determine
whether there is a substantial probability that he
will attain that capacity in the foreseeable future.
(Continued)
21
commitment, Sell, 539 U.S. at 182, and the record is devoid of

any facts indicating whether Sanderson would qualify for such a

program. 2

It seems clear to me, as well, that the majority

underestimates the time that Sanderson will have spent in

detention before trial, and how much this diminishes the

government’s interest in prosecuting him. The majority correctly

notes that, by the day of oral argument, Sanderson had been

detained about two years (24 months). Ante, at 13. His

restoration to competency will take at least 12 to 14 weeks, 3

If it is determined that this is not the case, then
the [government] must either institute the customary
civil commitment proceeding that would be required to
commit indefinitely any other citizen, or release the
defendant.

406 U.S. 715, 738 (1972). Here, Dr. Herbel testified that
“antipsychotic medication” is “the standard treatment of people
who suffer from schizophrenia,” and Sanderson would probably
remain incompetent without the drugs. J.A. 25–26, 48. But the
record also indicates that Sanderson has consented at least once
before to medication, and it is unclear whether Sanderson would
be more likely, after some period of continued detention (during
which his counsel could continue to advise him of his best
options), to consent to antipsychotic medication.
2
Dr. Herbel testified only that Sanderson would be a “weak
candidate” for commitment under federal law. J.A. 50.
3
See Dr. Herbel Test., J.A. 35–36 (noting that effective
treatment takes “eight weeks . . . at an adequate dose” of
antipsychotic medication) (emphasis added), and id at 59–60
(noting that “it may take a month or six weeks” to get to a
(Continued)
22
and Sanderson will be detained substantially longer if he wishes

to exhaust his appellate rights. Sanderson is entitled to move

for an en banc rehearing by this Court and to file a petition

for certiorari to the Supreme Court, avenues that could prolong

Sanderson’s detention at least six additional months. 4

Furthermore, the majority fails to consider the impact of good

time credits, which may significantly lengthen the amount of

time Sanderson will be deemed to have served, should he

ultimately be convicted and sentenced to prison. Barber v.

Thomas, 130 S. Ct. 2499, 2502 (2010) (“Federal sentencing law

permits . . . authorities to award prisoners credit against

prison time as a reward for good behavior.”) (citing 18 U.S.C. §

3624(b)).

Assuming Sanderson exhausts his appellate rights in six

months (increasing his detention to 30 months), and his

restoration to competency takes 12 weeks (increasing his

detention to 33 months), he will be entitled to about 146 days--

therapeutic dose). Indeed, the government requested an order
allowing treatment to last up to four months.
4
Our en banc petitioning process would take a minimum of
about 24 days. Fed. R. App. P. 40. Sanderson could file his
petition for certiorari anytime within 90 days of the final
ruling by the Fourth Circuit, and if the Government wanted to
file a brief in opposition, the process would take an additional
30 days. Sup. Ct. R. 13(1), 15(3). Thus, if the Supreme Court
denied his petition in less than five weeks, Sanderson’s legal
remedies would be entirely exhausted in about six months.

23
or nearly five months--of good time credits, increasing his

total (credited) detention to nearly 38 months. See Barber, 130

S.Ct. at 1502–03; White, 620 F.3d at 414 n.13; 18 U.S.C. §

3624(b). This total, of course, does not include the months he

will have remained in detention pending our decision in this

appeal, and awaiting his trial and sentencing. 5 Adding those

months to the total no doubt will bring Sanderson’s credited

detention within his advisory guidelines sentencing range of 41

to 51 months. 6

I note, in addition, that the majority concedes that “the

government will not be substantially burdened in proving the

5
The majority asserts that “whether Sanderson will exhaust
his appellate rights (and how long that will take) is entirely
speculative.” Ante, at p.14 n.4. But “just as counsel has
vigorously pursued the appeal to this court on behalf of his
mentally ill client, we would expect his vigorous representation
to continue through further appellate review.” White, 602 F.3d
at 414 n.11.
6
If Sanderson were to plead guilty after becoming competent
(and it is impossible to believe he will not), his advisory
guidelines sentencing range would be even lower: 30-37 months.
See U.S. Sentencing Guidelines Manual § 2A3.5 (2013) (providing
a base offense level of 16 for failure to register as a Tier III
sex offender); id. at § 3E1.1 (allowing a three-level reduction
in a defendant’s offense level for acceptance of
responsibility); id. at Sentencing Table (providing for an
advisory sentencing range of 30-37 months for a defendant with
an offense level of 13 and criminal history category V). See
also United States v. Grigsby, No. 11-3736, 714 F.3d 964, ---,
2013 WL 1458009, at *9 (6th Cir. 2013) (taking into account this
three-level, acceptance-of-responsibility reduction when
considering the propriety of forcibly medicating a pretrial
detainee to become competent to stand trial).

24
offense if the case is delayed.” Ante, at 14. Although the Sell

Court expressly identified this as a special circumstance that

diminishes the government’s interest in prosecution, Sell, 539

U.S. at 180, the majority erroneously concludes that it counsels

in favor of forced medication, because “the record suggests that

Sanderson will not regain competence without medication.” Ante,

at 14. The majority’s focus is misplaced. Whether Sanderson will

improve without medication is a separate question from whether

he will likely consent to medication. That he has refused so far

does not mean that he may not consent in the future. And because

Sanderson’s prosecution does not depend on witnesses whose

“memories may fade” or on “evidence [that] may be lost,” Sell,

539 U.S. at 180, the government has failed to show that

immediate forced medication is preferable to continued detention

for a reasonable period of time. 7

7
I do not dispute the majority’s conclusion that “the
likely effectiveness of the prescribed medication on Sanderson’s
illness supports the government’s request” to forcibly medicate
Sanderson. Ante, at 14. Sanderson conceded as much by not
challenging the government’s proof of the second Sell factor,
whether “involuntary medication will significantly further” the
government’s interest in prosecution. Sell, 539 U.S. at 181
(emphasis in original). Our focus, of course, is on the first
Sell factor, and while the efficacy of antipsychotic medication
may not diminish the government’s interest in prosecution,
neither does it increase that interest.

25
 III
In sum, the majority has failed to “ensure that this case

is sufficiently exceptional to warrant the extraordinary measure

of forcible medication.” White, 620 F.3d at 413. Sanderson is

charged with a non-violent crime; he poses no physical danger to

society; forcibly medicating him to become competent for trial

will not ensure his continued medication after adjudication,

either during any period of further incarceration or after his

certain release; the government will not be substantially

burdened in proving the crime if the case is delayed; and

Sanderson is unlikely to receive a sentence longer than the time

he will have already served, should he be convicted. Such

circumstances make clear that “little public good or benefit

will be achieved” in forcibly medicating Sanderson to stand

trial. White, 602 F.3d at 422. 8

8
Without in any manner questioning the bona fides of the
district court’s order, the plain fact that any judge wants to
move cases off his docket cannot go unremarked upon. In federal
and state “Baby Judge Schools,” see, e.g., Steinebach v. Tucson
Electric Power Co. (In re Steinebach), 303 B.R. 634, 640 (Bankr.
D. Ariz. 2004), and In re Conduct of Galler, 805 N.W.2d 240, 245
(Minn. 2011), judges are routinely tutored to be mindful not to
permit docket pressures to seep into decision-making.
Sanderson’s case presents a paradigm challenge: if he’s not
medicated, what is a beleaguered district judge to do? While I
appreciate the challenge, we should hesitate to make forcible
medication the default solution. Certainly, Sell does not
countenance such an outcome. Nor is there any warrant for the
Third Branch to act as the all-purpose problem-solver for
systemic challenges traceable to both legislative efforts to
(Continued)
26
 We should reverse the order of the district court.

Respectfully, I dissent.

over-federalize criminal law, see United States v. Bond, 681
F.3d 149, 169 (3d Cir. 2012) (Rendell, J., concurring) (“Perhaps
lured by the perception of easier convictions and tougher
sentences, prosecutors opt to proceed federally. There is no law
against this, or principle that we can call upon, to limit or
regulate it.”) (internal citation omitted), cert. granted, 133
S.Ct. 978 (2013), and to the sometimes dubious exercise of
prosecutorial discretion to which those efforts give rise, see
generally Daniel Richman, Prosecutors and Their Agents, Agents
and Their Prosecutors, 103 Colum. L. Rev. 749, 795 (2003)
(“[T]he federal criminal ‘code’ may well be even broader than
that of the states in the range of conduct it ostensibly
covers.”). See also Michael A. Simons, Prosecutorial Discretion
and Prosecution Guidelines: A Case Study in Controlling
Federalization, 75 N.Y.U. L. Rev. 893 (2000); Kathleen F.
Brickey, Criminal Mischief: The Federalization of American
Criminal Law, 46 Hastings L.J. 1135 (1995).

27