it please the court mark stephens is a fifty eight year old man from the western iowa town of carroll he has a very lengthy history of mental illness and specifically paranoid schizophrenia for that illness he has been committed to the same iowa mental hospital on at least six and perhaps more occasions in the past he's currently charged with felony possession of firearm the northern just vial the district court has ruled that he's incompetent to stand trial based on his mental illness and it granted the government's motion to have mr stuff in voluntarily medicated to restore his trial competency this appeal presents the issue of whether mr stephens case involves a compelling government interest such that it is one of the rare cases in which a court may order involuntary medication for trial competency purposes the courts familiar with cell versus united states the governing case in this area of law in the four factor test at the government must meet in order to win on a motion for involuntary medication for trial competency purposes this appeal only pertains to one of those factors which in truth is a two part factor on its own at the threshold the government must prove that there is a significant government interest in prosecuting mr stephens and then assuming that's true then the government must show that there are not special circumstances that negate that government interest in prosecution the threshold question is pretty easy in this case because it's  dictated by this court's authority already mr stephens is charged with an offense carrying a statutory maximum of ten years in prison this court in maquis indicated that any offense that carries a ten year statutory maximum is sufficiently serious such that the government has a interest in prosecution so the threshold is an easy question the tougher question is whether special circumstances negate the government's interest in prosecuting mr stuff and you  and case often this court and others make it clear that it's the government government's burden throughout so at the district court stage the government is obligated to prove the nonexistence of special circumstances by clear and convincing evidence and then the balance of the special e addresses as well at present mr stephens is actually receiving anti psychotic medication what happen is we had the cell hearing in the district court level the government the district court granted the government's cell motion and while this appeal was pending the bureau of prisons at springfield facility held an administrative hearing regarding mr stuff and specifically regarding whether he posed a risk of danger to himself such that involuntary medication was necessary to mitigate that danger this is something that's authorized and of the supreme court's opinion in washington versus harper harper again just deals with either dangerousness to the individual in a correctional setting or  other individuals in the correctional setting and at this administrative hearing in march of this year and the bureau of prisons decided that mr stuff us at this point represents a danger to himself because he was not eating and he was not complying with the prisons effort to check on his physical health so at present as i said mr stephens is receiving medication based on this washington versus harper rationale and i've asked the court to consider language at pages one hundred eighty one to one hundred eighty three the supreme court's decision in cell or the supreme court discussions discusses the relation between a harper based motivation for involuntary medication versus a cell based motivation they are different things but the supreme court tells courts at pages one hundred eighty one to one hundred three that the government and courts should first look to a harper based rationale for involuntary medication before going to the more extreme measure of seeking involuntary medication for trial competency purposes the government did that here there was a harper hearing preceding the cell litigation but at that previous point the bureau of prisons decided mr cephus did not pose a risk of danger to himself or others in the correctional citing council suits your position that we still have a light controversy in that this is not a moot case we do have a live controversy because although in general we're talking about the same thing involuntary medication we're talking about different interests at play so the reason mr stephens is being involuntary medicated now is because the bureau of prisons is decided that it's in his best interests to ensure his health going forward whereas cell deals with generally whether it's in the government's interests or the public's interest to have mr cell medicated for purposes of bringing him to trial now there could be a point at which mr stephens is medicated pursuant to harper and the bureau of prisons or terminus he's no longer a danger to himself we still have the question of whether he can continue to be medicated for trial competency purposes so that's why the issue is not mooted by the recent  special circumstance of the court can consider and can consider whether reman is appropriate back to the district court basically to hold the case in abeyance to see how the harper medication turns out and whether circumstances change because ultimately this is a very the doctors may say or you may want to hear ian on the issue of the compatibility between the two medications because i know that also becomes a big issue in the sal hearings is the dangerousness of the medication particular in combination with other medications medication and i do think that's why the supreme court said in the cell that courts should first look to harper if that's not a basis for medication then we go to sell this is unusual in that we look to harper first didn't provide a rational the government went to s stage moving beyond that there are special other special circumstances in mr stephens his case that this court should consider if remain doesn't happen with relation to the cell issue the first special circumstance i'd like to address because i don't think the district court paid enough attention to this or the individual facts and circumstances of what happened with respect to mr stephens his alleged offense and i do think it's really important to get into the facts of the alleged crime because makes clear the courts are to look to the individual facts and circumstances of the case whereas at the threshold we just consider whether in this case a nine twenty two g charge is sufficiently serious to possibly warrant involuntary medication but then there's a wide variation of offenses that are charged under title eighteen section one twenty two g from we sometimes get homicide cases that are charges one twenty two g and we sometimes get cases of individuals who simply have no criminal history but they're in possession of the marijuana of marijuana in a gun the same time they're charged under section one twenty two g three so looking at the specific facts and circumstances of mr cephus case you also have to consider his history and that doesn't bode his favor because he does have a history of assault of conduct he has a prior federal felony firearm conviction but i've asked the court to note that many of those things are quite dated and in fact since mr stephens committed his previous federal fire offenses back in two thousand and two and then suffered conviction for that his only criminal history up into the current point is a two thousand and seven conviction for possession of nothing fundamentally so there's been no recent violence with mr stepha's and then with respect to what happened in the instant case this is a circumstance where mr stuff us is being prosecuted for a gun that was previously his and previously in police custody but then was released to a friend of his under his signature i think anyone who's been involved with criminal prosecution or criminal defense knows that generally speaking if a gun was seasoned connection with a crime it's going to be forfeited it's not going to be returned to the defendant or an associate of his yet in this circumstance in a small i town mr stephens was essentially able to retake possession of a gun that was seized from him because unusually his gun was released to his friend based on his signature that's at a minimum a mitigating factor in my  view given mr stuff is his mental state and and the circumstances there the court should also consider the likelihood of civil commitment even if mr stuff is not medicated to restore his trial competency this is not a circumstance as sometimes occurs in other cases where the issue of civil commitment is uncertain we can look to the past and know that mr stephens is very likely to face some form of civil commitment even if he doesn't go to trial in this current federal case he's been as i said recommend that mr stephens school through commitment proceedings pursuant to title eighteen united states code section forty two forty six so commitment under both state and federal law is a real possibility mr stuff this case and as the supreme court said in cell that lessens the government interest in continuing continuing with a prosecution for an individual like mr stephens but also ask the court to consider the amount of time that mr stuff is observed in jail thus far he was arrested back in april of two thousand and fifteen and he's been in jail ever since this court as i said first looks to the statutory maximum for an offense but if you want to use this court's opinion and nicholas at footnote five the estimated guideline range is still  factor for the court's consideration in the special circumstances analysis in this case the parties agree that mr stephens has already served an above guideline sentence without being convicted the district court essentially disregarded that in this case talking about the potential mr stuff has to be placed on supervised release that's a potential it exists in any case and that interest is certainly lesser in a case like this a charge under section one hundred twenty two g or the statutory maximum supervised release of three years whereas if mr stuff was first of all committed that could last for the rest of his life and he'd be under a court contempt power to continue to comply with mental health treatment and take his medications and in the i guess the procedural circumstances that now have unfolded as an involuntary medication case where the individual possessing a firearm by a felon charge that mr stephens has been down that very road in the past two thousand and two to two thousand and four as my colleague has indicated he was charged similarly with possession of a firearm in that case with a prior domestic abuse conviction  for that very federal conviction last time two thousand and two so he was found being competent and then treated again it wasn't the exact same process that he's gone through here but he went through treatment largely while he was out on pretrial release for a period of time after being involved here for involuntary civilly committed and then released but after he's medicated on some of the very medications that were discussed at the cell hearing and put in the recommendations by the psychiatrist and his adopted by with minor modifications the magistrate in the district court he got better and was found competent pled guilty to that charge here we have similar conduct that case about possession of a firearm also a knife hunting knife here he's found with a firearm again a handgun and a large knife about seventeen or fifteen years later thirteen and fifteen years later to  adjudication in offense conduct but in this case he also approached two different firearms dealers and asked to be purchased essentially inquired about an a r fifteen that's a little different than his offense where you get the offense conduct in this case is that he walks into the second gun store after everybody had been alerted to a never been informed that he could not have a firearm for three all three reasons he still but brings in about an air fifteen but brings in a loaded handgun that turns around gives him on for some rate reason go find him he finds him find him with a handgun in the in the in the night that's where we're at as far as a factual case he gets charged we have cell hearing we've already run through that with part with prior counsel here the issue really is whether or not the government's interest as found by both the records whether or not that's undermined or rebut it in some way by th special circumstances i need talk just briefly because it was my counsel that you know we have some recent changes to things that's really not in the record but he had a prior harpur hearing  and it was found that there was no danger grave danger to himself or to those him or others in the incarceration setting that was august of two thousand and sixteen that changed in march of twenty fifteen he's now being involuntary man medicated  with a plan very much like what was originally recommended by the psychiatrist he's had administrative hearing subsequent to that to to continue that and he's basically been treated problem is in question in the court was i the hearing or at this point or moot the issue or does it does it require remained those are both you know very very good considerations trouble is only had two months of treatment based on the history in this written in his history in this record it takes more than that in order to get a determination whether or not he's going to be found competent or not or whether or not there can be some difficulties with his treatment regimen as the court brought up a minute ago  is that it could be remanded as i understand it he's making progress but there will know in july if you know for months approximately whether or not that treatment is working or not working when that needs to be furthered or not or  continued but we don't know what that's going to be we know based on the record that up to this point there was a basis for so after going through the cell factors for involuntary medication all four of paper threats there isn't a physical violence does not necessarily mean it isn't a serious and violent offense or violent type of a crime you got to look i guess to the circumstances of each charge in the underlying facts and in this case we have a firearm involved we have a history i think history has to be considered and we have an individual looking at a r fifteen on two separate occasions after being told that he could have a firearm in addition  he has of hat past history of assaults past history of assault the mastic past history of confrontational and odd behavior we have incidents in two thousand where he calls the police to his to his arrested on that occasion in ninety seven we have going to a bank pulling a gun waving a gun not pointing at anyone but threatening the count local county attorney threatening bank officials and ultimately ending up with a firearms based defen conviction i mean just bring up one issue mr wade supreme court and say all sand that i'm paraphrasing that these should not become routine that they are any time you get a crime has more than five years sans the government says you're out you're entitled to in this case by the time he gets to trial you will have served way more than any sentences like i agree with just about everything you just said it with the exception of i'm not sure whether you can we can say that he would likely serve he would have served or served group a significantly greater sentence and what he would likely be ordered to serve i think probably going to be well over forty months somebody goes to trial this fall will be three and a half years forty to forty four months by time you satins might even be four years and we've acknowledged that his range is going to be somewhere in that probably the twenty five to thirty three month range i think it's potentially down as low as fifteen could go a little higher but what we argued in at him before the district court for the magic court in the district court is that and it was at least acknowledge that the potential sentence wasn't known it was impossible to know though i will acknowledge that they both spent more time talking about supervised release as a as a concern and a recommendation for it by the in a concern for the government's interest and recommendation of the court to follow the supervised release was a another alternatively a turn of to the sentence that would not be gotten by not involuntarily medicating him i think that though that there is a fairly significant chance that we're looking at a sentence at over sixty minds with the i think clear under representation of his criminal history based on his past history and then conduct into including the office conduct in this particular case the record is filled with a lot of threats violence and confrontational behavior involving guns that's a little different than some of these other cases where you have maybe gun possession but you don't have all that kind of threats and or threat of assault type behavior and i think that has to be taken in consideration for the potential sentence that might be imposed and this guy be in psychiatric treatment i mean he's probably you talk about supervised release but probably not super i mean if you are mentally ill it's very difficult for probation to supervise i would say so i mean he should shouldn't i mean isn't this a it just seems like this is not you trying to get a square p role you've got a guy who probably would serve more time than he's going to get sentenced to probably not stop amenable to supervision so he should really be why aren't you more moving towards getting him committed and getting them some treatment  that's where you i mean to me that's what society needs i think that that can be accomplished by what we're trying to do i think supervised release worked in the past and he there is a history in the trial serves as reported documents and after that in that two thousand and two case but it wasn't you can get convicted to two thousand and four he was supervised on a pretrial basis once he was released he was in cherokee mental health for a while but then he was on an outpatient basis that's where he took his medication and then became competent and then he was on supervised release for three years and he had no he had some drug use problems that were that came up that's in the report but nothing we're going violence towards others or behavior in his counsel indicated you know for a period of time after that decent time after that he didn't get into the i guess the threat the violence the threats of violence the confrontational behavior again until closer here to twenty fifteen when he walks in the courthouse and make some comments about one of these guns again and then immediately within a month is looking for a ar fifteen s think there's a difference between that individual and those individuals that need pure mental health i don't disagree with you i'm seeing more cases where people are being evaluated for competency that have some backgrounds like this and other backgrounds most of those people are found competent especially especially about half of those people are going off to buettner springfield and starting to take medication or paan recommendations and they get found competent at least with the medication regiment there fall where you have the person like mr step assume will not take the medication voluntarily that's where you run into the difficulty of and that's why it's a more rare circumstance but i think it's a rare circumstance with also the possibility in the past history i can say possibility probability based on his past history and his office conduct of future potential violence the other area in which the defense talks about special circumstances which have undermined the government's position is the likelihood of civil commitment and we i know you touched on that that the process for that is a little different both on the federal level it's dealing more with serious and violence towards others and also in that regard in light of what the u s supreme court has said in about the importance of liberty interest at stake and that they don't want this to become a routine thing how can we justify shifting the burden of proof to the defendant on that matter and as far as likelihood of  civil commitment hearings well i think that well in the civil commitment hearing a government would have to prove certain matters but i'm talking in the context of the special circumstances portion of the smell test i don't know that we have shifted it to him so much as that i'd i don't believe that the civil commitment possibility here a prospect is certainly not for us to know in order to say that it undermines the strong government interest in pursuing the prosecution in this case the district court put special emphasis on the fact there was uncertainty in that regard you know that the defendant had proved otherwise yes and part of that was that the record basically from the institution and i think it came from the i think it's a psychological psychology in turn may have been only meant briefly mentioned by the psychologist was that that was the next step and they in there was no record made by either the government or the defense regarding the prospects of that next step i think the focus was on what they had done and what they're having to do basically for the harper matter which was negative at that time obviously not positive for harper needs but or and the need for actual involuntary medication based on his previous history of paranoid schizophrenia his consistent pattern with that again and the fact that treatment had worked more i mean i know the i was statute focuses more on whether you can take care of himself and whether or not there's an emotional harm to other individuals and whether or not there's harm he represents a risk to him particularly and potentially others know that the federal mattered looks more at whether or not there's harm to others and harm to property it's a little bit more difficult to get a civil commitment on the federal side state side again is a little more general but again none of those really if you look at the route the record there really is that evidence of that and sadly if he's getting better being involuntarily treated now it's almost assuredly you know unlike the fence position in their brief say it's extremely likely that he'll be civilly committed if he's already being involuntary medically treated based on the gravely disabled nature of his condition because he was a messy ate it and he couldn't he lost a lot of weight and he couldn't respond to lab requests or even physical exams because better than he certainly won't be civilly committed because you get better before the commitment process begins and there won't be a basis to commit him so as i said it's a very unique set of facts or unique set of procedures we feel that i think at this point based on the record that there is there is a sufficient basis to affirm the district court and the analysis it provided including its adoption of certain detailed findings by the magistrate court however things are changing thank you  briefly touch on a few points raised by mr wayne to be faithful to cells admonition that courts must consider the individual facts and circumstances of a case this court cannot ignore the estimates of the parties of offer that are undisputed regarding the possible guideline range that mr stephens faces this in the district court relied on a passage from this court's opinion in mackey saying that we can't just assume that the defendant will receive a guideline sentence because we don't have all the information that a sentencing judge would have this case is very different in that the district court probably has more information than a sentencing court would ordinarily have we have a pre sentence report from mr such as previous case that's exhibit nine in the celebration we have a pretrial services report from the current case against mr stephens with his criminal history is mental health history his family history etc that's exhibit ten we have extensive briefing about him about his history about his mental health history about what he did so this is a different circumstance and makea there's lots of information and respectfully i disagree with mr wade there's simply no basis based on what mr stephens is alleged to have done this time to suggest that a court would think that a sentence two times above the top of the pop top possible guideline range would be appropriate as far as likely goodness of civil commitment i want to touch on a point of transcribes raise i'd ask the court to consider the six circuits opinion grigsby it cited in my brief and i think it really hits the nail on the head that it is impossible for me to get up before district court for this court and say that civil commitment is inevitable it is possible though for me to point to historical record and in particular the fact that mr stephens has been civil committed under iowa law on at least six occasions and say if past is prologue it's probably going to happen again and i can point to the bureau of prisons own report exhibit seven from a solid ignition that says forty to forty six litigation is likely if mr stephens is not restored to trial competency finally the issue of mr stephens is general dangerousness pervades both i think the government's presentation and the district court opinions below but it's important to keep in mind that if mr stephens is deemed to be a danger then he will not be released to the public that's what section forty two forty six proceedings are all about judge moore hit on separate opinion in the nicholas case and it certainly mitigates any risk when you know that this forty to forty six proceeding is a possibility if mr stephens suppose a risk of danger to the public if released if the no questions asked