psychotropic drugs not because he is a danger to himself or others and not simply to ameliorate mental illness that he separate from but rather to advance the government's interest in trying to restore him to competency for the trial that is clearly erroneous for that reason the legal error is that the district court found that the evidence of the stablish is a significant likelihood of restoration by a vote of two dollars to one dollar that is that  with respect to the testimony of the experts and you know we may or may not agree with it but certainly he explains it yeah i don't i don't think it is purely descriptive counting in that that conclusion is really in a skater but when you consider it in light of his other comments which are themselves and other findings which are themselves and just completely insufficient partly because his modified findings added nothing of evidentiary value right the court simply remarks that one of the witnesses was nice and likeable and has no weight obviously that he dr sears and had prepared a report he's required to repair that report under the sports decision in chops the government cannot obtain a cell order without that type of plan describing which medicines at what dosages so those facts really don't add anything the court the contrary the court repeatedly indicated that it had heard from three competent experts that it liked and respected dr photograph that it found the government's experts credible and highly credentialed i think at one point he said but he never said required to do on this very intricate medical issue i think both sides would acknowledge at least some residual area of uncertainty yeah i think it's it's a question as your essentially an evidentiary at the points on some level that the court has to make some sort of explanation some sort of reason to basis for why i want to be was more persuasive than the other or explain why you can't make that we had to summarize your primary concern it's just the sentence or two what would you tell us it's twofold the courts the court's ultimate conclusion on  still nd prong was infected with legal error and was based on facts that are either not relevant or insufficient under the governing legal standard and that's how the right person in this case i counsel can i just you then following that just what do you make of the court feeding that all agreed that the medication would be helpful and would improve his mental condition can you perspective right in the sense that everyone all the doctors recognized that that this type of medication is appropriate and might help it might not restore him to competency but it might help and it's similar to the kind of thing we see in tap cases where a court might say someone should go to to be into to go be imprisoned for a period of time so they can participate in programming or recovery programs that is understandable from a human perspective to want to help somebody but it's this deeply not a judicial function at sentencing in the same way that it's just simply not the function undersell to say that the medication might help or the only way we'll know if it'll help is to try so i think that is she was extremely clear with the court that when he was questioning her directly whether or not the medication would help mr seaton whether she would pursue private in a clinical outpatient context was totally different question than whether restore him to competency and she was very clear about that and that's where the court's conversations i think about that come from and so i think that it's to sum up i think it's a it's clearly distinguish from competency and appropriately so and for to the extent the court relied on that as a basis for its order it's plainly insufficient undersell well maybe you can just tell me then what is what was missing h what should he have what should the court have sat the court should have denied the cell order because the government didn't meet its burden because the court found the ports finding suggest that it couldn't reach determination and when you can't reach gauged in some what you would classify as speculation in arriving at its conclusion but to articulate the way you have that it's the court just kind of like a bubbling up but didn't have a clue what he was saying that this may work it may not be not a doctor but but but then he said the the medical experts do say that there is a probability it's not a possibility although the court may have articulated in that in that manner but the testimony itself is based on scientific problem bill of possibilities  the medical data that is submitted to us seems to support that proposition that on the that on the basis of scientific probabilities more likely than not to but you say that it wasn't made isn't that evidence in the record so with respect to that that that scientific literature i don't think it gets that far for a competency restoration in the federal system that's the one in which the government doctor says about seventy five percent restoration in a typical case but as defense counsel pointed out below that number excludes the entirety of people who a court had deemed unlikely to be restored goes to the to the credibility of the the surety of the evidence so so it was seventy five percent likelihood in it in the most general sense the other problem with the literature is that as dr preston herself recognizes that it doesn't cover people like mr seaton that he is not sui generis but he is a unique case in the sense that he has been sick for this long and that the literature acknowledged really doesn't look at this for propriety of reasons but that it's not i don't think it answers that this isn't a case where you can say well there's other record evidence that we can reach the same conclusion on by any means there's just simply not an answer discussed it in the context of treatment is is not appropriate or at least at least it's not it's not legally it's not the correct legal standard on the beach we should look i think that's right i think it's  relevant consideration but it's by far not the question presented on the unself hearings i think i'd reserve the rest of my time with no further question i'll members of the core jim murphy representing the united states the issue before the court is really quite simple the court entered a specific binding that there was substantial likelihood that medication would wish restore the defendant to competency that would not impair his ability to assist in his defense which was a required standard herself and the question before this court was a record support most of the defendants  arguments have focused not on the finding itself but i was off the cuff somewhat formal remarks the judge actually made on the way to those which would be relevant to the horribles argument i the fair to make an adequate explanation but with regard to the issue this this nd argument that no four no one could reasonably find bacteria convincing evidence that prompt two was satisfied that well the testimony of the two government experts serves on their own and president bow surveyed extensive literature and their own extensive experience in reaching their own conclusions and where did they take the said that dr preston specifically addressed that i believe in space twenty six of volume three the question came up about the reliability and the applicability of the literature to someone who had not been treated for schizophrenia for so many years said it's very unusual i'm that's why the literature has little reference to it because most people with mental mental illnesses that serious do receive treatment  then at page twenty percent she says yes that may be seen as a weakness in the literature because it's so rare however she then went on to explain specifically her own experiences with several of her own patients who had remain restore his proceeding to competency because mr preston once dr preston once had a couple of patients who had gone i think it was like ten years right without medication and so based on those couple of experiences what they would do that's what they're talking about with regard to the criteria on the cells inquiry that's what they said that's right but it's always got a nother medical problem heart disease arthritis or whatever this what they set right if i understand correctly that the three criteria you look at for a sales inquiry are whether someone has another medical problem whether someone has another has a cognitive disorder and whether someone has undergone a lengthy on in saying that mr seaton could be restored to competency likely would be restored a competency back clear and convincing evidence is that he hasn't undergone a link the period of institutionalization because he's gone for forty years without having any treatment whatsoever what sense does that make makes a great deal of sense this moves of having not been treated while dr preston conceded that was it was said it would be unusual i think she's just making an inference from experience i don't think they have a category in all these studies that people how how long have had this illness and when they were st is it really that's but that's this that's a way that what we have with dr preston conceding that it would be unusual for anyone with this certain with schizophrenia to go a long period of time and not be treated and therefore she thinks it probably is a battery war that warrants separate consideration and she gave it separate consideration and should consider that in the context of the studies which do not so far as i know spell that out one way or the other one she was  just said she had reservations about whether it was going to work or not and the and the being untreated was only want of ironic is another one was his delusions which the government doctor did taken into consideration testified that if you try to involuntarily medicate someone to get over their delusions they could essentially be counterproductive they could exacerbate their mental problems because the delusions are what fuels that that person didn't s to form concerns with that i don't think measure up very well to link the statistical studies and many many years of experience in people who actually administer these drugs with schizophrenia and where did it where in the record if i look for those statistical data or anything that will incorporate a analysis of dr bowker it's very specific concern with regard to this person's delusions created over a forty year period that are going to be incorporated within that statistical data or any other evidence in the record that dr  while incarcerated and spread that's the actual standard yes that that was required at the time thank you actor but if the court has any concerns with a running question about it i'm happy to try and explain why the government thinks it has a very important interest and prosecuting the serious threats that were made well of well wives and that interest does not go away merely because someone has mental problems there is still a strong deterrent interest in it and the only argument that i've heard against this with any is well the only extremely speculative particularly since we have two counts which together total fifteen years statutory maximum now he may not receive that i acknowledge that but the fact that he is i believe at this point he's been  continue during that time i'm sorry have the threats continued during that time the fifteen months i don't believe there was something in the record that after the threats in question he continued to call might spend that's somewhat speculative and we can speculate about what his sentence might be but he hasn't even been convicted we don't know if you plead or go to trial as i explained in the briefings and is there any danger that treatment could make the situation worse the was that considered or discussed it was considered by all the experts and the even dr broke a bone grab the defense expert said that she thinks the defendant is currently suffering a great deal because of this illness and she thinks those medications would help them even though she's not confident that they would restore him to civil commitment proceeding dr preston acknowledged in her testimony and in her report that inquiry looks at whether or not he would be a danger to someone to person or property in the community that's the federal civil commitment proceedings and would also potentially be subject to state civil commitment proceedings which look at back to as well as whether or not someone is gravely disabled to take care for themselves so the idea that that a dangerous person would be released is just is not applicable in this case but to allay any concerns regarding that i want to be clear that that that would be the next step the government would have to decide now if the government or other doctors decided he were not dangerous that there would be a different and different outcome there now with respect to threats in custody the only record the only suggestion is in documents sixty four in footnote two to the government cell motion that allege that mr seaton had tried to make a call to someone after his arrest to elected official after his arrest but doesn't detail the substance of that it does reference the prior calls uncharge conduct which is why we included the multiple threats enhanced minutes of possible outcome on the on the guidelines calculations and on cells st prong no one's disputing that the government hasn't or an interest in prosecuting serious issue here is that it that interest is undermined by the special circumstance recognized in sell in which pretrial detention could equal or exceed the expected sentence under the guidelines which this court recognized in balance  would both like we fall under to a six dollars then you would have to answer the grouping question ok which would then be do they group do they not group if they do group then it's what i put in the opening brief if they don't group then it would depend under under three d whether an additional point fifty one dollars or two levels could be added there would also be possible talent is about double counting and in that analysis to the extent there is uncertainty again i just reiterated it because the government didn't prove it up