2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-2014

USA v. Abraham Cruz

Precedential or Non-Precedential: Precedential

Docket No. 13-4378

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Abraham Cruz" (2014). 2014 Decisions. Paper 686.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/686
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-4378

_______________

UNITED STATES OF AMERICA

v.

ABRAHAM CRUZ,

Appellant

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-11-cr-00242-001)

District Judge: Hon. Christopher C. Conner

_______________

Argued June 10, 2014

BEFORE: FISHER, COWEN AND TASHIMA*,

Circuit Judges

_______________

*Hon. A. Wallace Tashima, Senior United States Circuit 

Judge, United States Court of Appeals for the Ninth Circuit, 

sitting by designation.
2

(Filed: July 10, 2014)

Frederick W. Ulrich, Esq. (Argued)

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Stephen R. Cerutti, II, Esq. (Argued)

Kim D. Daniel, Esq.

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

_______________

OPINION

_______________

COWEN, Circuit Judge.

We here confront an issue of first impression: whether 

the Government, pursuant to the Supreme Court’s decision in 

United States v. Sell, 539 U.S. 166 (2003), can have a 

sufficiently important interest in forcibly medicating a 

defendant to restore his mental competency and render him fit 
3

to proceed with sentencing. Under the facts presented in this 

case, we answer that question in the affirmative and we will 

affirm.

I.

A.

Cruz was arrested in August of 2011 and indicted on 

one count of assaulting, resisting, or impeding Social Security 

Administration (“SSA”) employees, a violation of 18 U.S.C. 

§ 111 (“Count I”), and two counts of threatening a federal law 

enforcement officer, violations of 18 U.S.C. § 115 

(respectively, “Count II” and “Count III”). The District Court 

granted Cruz a judgment of acquittal on Count I, and a jury 

returned guilty verdicts on Count II and Count III.

In August of 2012, after the District Court received but 

before Cruz could raise objections to the pre-sentence 

investigation report (“PSR”), the Government raised concern 

about and moved for a determination of Cruz’s competency.1

 

Its motion was granted, and Cruz was evaluated by Dr. 

William J. Ryan, a forensic psychologist working for the 

Federal Bureau of Prisons (“BOP”). Dr. Ryan, as reflected in 

a report submitted to the District Court, concluded that Cruz 

was mentally incompetent because he suffered from 

 1 The Government sought a competency determination 

at this stage of the proceedings because “Franklin County 

prison officials [had] complained about Cruz’s behavior.” 

(App. 69.)
4

schizophrenic disorder, bipolar type. Upon receipt of Dr.

Ryan’s report, the District Court scheduled a competency 

hearing. Following that hearing, it concluded that Cruz was 

mentally incompetent and found that he could not proceed 

with sentencing.

The District Court received a second competency 

evaluation and report from the BOP in May of 2013, which

was co-authored by forensic psychologist Angela Weaver and 

BOP staff psychologist Robert Lucking. Drs. Weaver and 

Lucking concurred with Dr. Ryan’s diagnosis, noted Cruz’s 

ongoing refusal to take anti-psychotic medication 

recommended by BOP personnel, and concluded that without 

such medication Cruz would remain mentally incompetent. 

They also concluded that “there is a substantial probability 

that [his] competency can be restored with a period of” forced 

medication. (App. 70.) The Weaver/Lucking report included 

a proposed treatment plan and a request that the Government 

seek a court order under Sell, authorizing the BOP to 

medicate Cruz involuntarily.

B.

The Government filed a motion on May 29, 2013, 

seeking an order authorizing the BOP to medicate Cruz 

against his will. (See App. 68-142.) The papers filed by the 

Government included, inter alia, its “Omnibus Motion and 

Brief,” related exhibits, and, pursuant to the District Court’s 

local rules, a certificate indicating that Cruz’s lawyer was 

contacted and expressed Cruz’s non-concurrence in the 

motion. The Omnibus Motion and Brief made clear that the 
5

Government sought two forms of relief: first, a hearing 

pursuant to Sell; and second, following the hearing, a court 

order authorizing forced medication.

The District Court promptly scheduled an evidentiary 

hearing, which was continued three times (twice at Cruz’s 

request) and ultimately held on October 22, 2013. In the 

intervening five months—i.e., the period following the May 

29, 2013 filing of the motion and preceding the October 22, 

2013 hearing—Cruz failed to file a petition, motion, brief, or 

other document indicating that he opposed the Government’s 

ultimate request for relief.

The District Court began the October 22, 2013 hearing 

by informing the parties that it was “held pursuant to the 

Supreme Court decision in Sell v. United States” and 

providing “the Sell criteria sort of as a backdrop to the 

testimony” that would be presented. (App. 145, 147.) It 

reminded the parties that “involuntary medication of 

nondangerous individuals should only occur when four 

conditions are satisfied” and recited those factors for their 

benefit:

First, the court must find that important 

governmental interests are at stake. Second, the 

court must conclude that involuntary 

medication will significantly further those 

interests, and this second factor includes 

determining that medication is substantially 

likely to render the defendant competent and 

that the treatment is unlikely to have side effects 
6

that impair the defendant’s ability to assist 

counsel.

Third, the court must determine that 

involuntary medication is necessary to further 

those interests because alternative[,] less 

intrusive treatments are unlikely to achieve the 

same results. And fourth, the court must find 

that involuntary medication is medically 

appropriate, or, in other words, in the patient’s 

medical interests in light of his medical 

condition.

The first factor, whether the government 

has advanced sufficiently important interests to 

justify forcible medication, is a question of law, 

and the remaining three factors are factual 

questions which the government must prove 

with clear and convincing evidence . . . .

So in light of those factors and that 

background, . . . I’ll turn to the government and 

ask . . . if [it] would like to present testimonial 

evidence in support of [its] motion.

(App. 147-49.)

Drs. Weaver and Lucking testified for the 

Government, which introduced, among other documents, both 

the PSR and the May 2013 Weaver/Lucking report. Cruz, 

who was represented by the Federal Public Defender, did not 

object to the introduction of either of those documents. 

However, he noted through counsel that he “didn’t 

necessarily agree with that guideline range.” (App. 229.) 
7

Shortly thereafter, again acting through counsel, he declined 

the opportunity to present evidence at the hearing and stated 

that he “[did not] have any argument at [that] juncture.”

(App. 230.)

The District Court took the matter under advisement 

and two days later entered the order that is at issue on appeal. 

As there illustrated, the District Court considered the 

circumstances of Cruz’s case and concluded that all four of 

the Sell criteria were satisfied. Its analysis of the first 

criterion, which is central to this appeal, rested on two legs.

First, the District Court concluded that a sufficiently 

important government interest was at stake because 

“[r]endering a defendant competent for sentencing enables 

not only the government, but also the court and the defendant 

himself, to ensure that the defendant receives a sentence that 

accurately reflects the nature of his offense and his individual 

circumstances.” (App. 7 (citing United States v. Wood, 459 

F. Supp. 2d 451, 457-60 (E.D. Va. 2006)).) It further 

explained:

Neither the Supreme Court nor the Third 

Circuit ha[s] promulgated a test to determine 

the seriousness of a crime, but other circuits 

have looked to the statutory maximum 

mandated for the offense or the applicable 

guidelines range. The Third Circuit in [United 

States v. ]Grape[, 549 F.3d 591, 600 (3d Cir. 

2008),] determined that under either rubric, the 

defendant was accused of “serious” crimes 
8

because the crimes had statutory mandatory 

minimums of 10 and 15 years and the defendant 

had a guidelines range of 87 to 108 months[’] 

imprisonment.

In the case sub judice, the draft presentence investigation report provisionally 

identifies a 10-year statutory maximum for each 

count and a guidelines range of 100 to 125 

months[’] imprisonment. Certainly, pursuant to 

the criteria set forth in Grape, Cruz was 

convicted of “serious” crimes and the 

government possesses a strong interest in 

rendering him competent for sentencing.

(App. 7-8 (citations omitted).)2

Second, the District Court found that no special 

circumstances lessened the importance of the Government’s 

interest. It noted that Sell identified two examples of such 

special circumstances: “(1) when the defendant has already 

been incarcerated for a significant period of time; or (2) 

whether there is a possibility of future civil commitment.” 

(App. 8.) But it concluded that neither of those circumstances 

were present here.

 2 The District Court was “mindful . . . that neither 

party . . . had the opportunity to lodge objections to the presentence investigation report’s findings” and noted that it had 

not “yet . . . consider[ed] the many circumstances that may 

contribute to Cruz’s ultimate sentence.” (App. 5 n.1.)
9

With respect to the length of Cruz’s incarceration, the 

court concluded that he had not been incarcerated for a 

significant amount of time. It cited and discussed Grape, 

where this Court noted that the defendant had been 

incarcerated for approximately three and half years but 

“reasoned that in light of [his] potential sentence, he would 

still need to serve a majority of his sentence if convicted.” 

(Id. (citing Grape, 549 F.3d at 602).) The Grape court 

concluded as a matter of law that that defendant had not been 

incarcerated for a significant amount of time. By analogy, the 

District Court reached the same conclusion here. It reasoned 

that Cruz, who had been incarcerated for only two years, 

might still need to serve the majority of his sentence. When 

reaching that conclusion, the District Court relied principally 

upon the PSR, which “provisionally identifie[d] a 10-year 

statutory maximum for each count and a guidelines range of 

100 to 125 months[’] imprisonment.” (Id.)

With respect to the possibility of future civil 

confinement, the District Court examined the statutes that 

might authorize such confinement, 18 U.S.C. § 4246 and 50 

Pa.C.S. § 7301, and noted each statute’s prerequisites to civil 

confinement. Importantly, 18 U.S.C. § 4246 required “a 

substantial risk of bodily injury to another person or serious 

damage to property of another” while 50 Pa.C.S. § 7301 

required a showing of “clear and present danger or harm to 

others or to himself.” In light of those prerequisites, the 

District Court made note of record evidence that called into 

question the likelihood that Cruz could be civilly committed. 

Although “the [PSR] indicate[d] that Cruz has a lengthy 

criminal history involving numerous acts of violence and 
10

threats of violence,” and although “[e]ntries from the [BOP]’s 

Psychology Data System . . . indicat[ed] that Cruz ha[d] 

continued to threaten violence against others,” “[t]he May 

2013 evaluation explicitly state[d] that Cruz ha[d] not posed a 

threat to himself or others . . . and does not pose a risk of 

committing serious harm to others.” (App. 9-10.) The 

District Court characterized the conflict in the record as 

“[u]ncertainty surrounding the” likelihood that “Cruz [could] 

be civilly committed” in the future and concluded that such 

uncertainty did “not materially diminish” and “clearly [did]

not undermine” the Government’s interest in restoring Cruz’s 

mental competency to render him fit to proceed with 

sentencing. (App. 10.)

C.

Cruz moved for a stay of the District Court’s order on 

October 29, 2013. In the brief filed in support of that motion 

(“Stay Brief”), he conceded that “the government has an 

interest in sentencing a convicted defendant.” (Supplemental 

App. 9.) However, he argued that the District Court erred in 

finding that special circumstances did not lessen the 

importance of the Government’s interest.

Cruz first argued that the District Court erred when it 

concluded that he had not been incarcerated for a significant 

amount of time. He disagreed with the District Court’s

reliance on the PSR, and he argued that such reliance was 

inappropriate because he had not yet had an opportunity to 

object to the Guidelines, argue for relevant departures, or 

raise other considerations under 18 U.S.C. § 3553(a). 
11

Specifically, he argued that it was unclear whether he needed

to serve a majority of his sentence. (Supplemental App. 6.)

He also argued, with specific reference to both 18 

U.S.C. § 4246 and 50 Pa.C.S. § 7301, that “it is quite possible 

that [he] could be civilly committed in the future.” (Id.) He 

failed, however, to flesh out that argument by either 

developing it further or citing relevant legal sources.

The Government did not oppose Cruz’s stay motion, 

which the District Court granted. Thereafter, Cruz filed this 

appeal.

II.

We pause here to restate the arguments that Cruz 

presents on appeal and to draw a roadmap for our analysis. 

Cruz argues that the District Court erred when it authorized

the BOP to forcibly administer antipsychotic medication

because the first Sell criterion, which concerns the importance 

of the Government’s interest in restoring his competency, was 

not adequately established. He raises five arguments that 

bear on that issue.

First, he argues that the Government’s interest in 

restoring his competency is less than that shown in other

cases (e.g., Grape and Sell) because, here, the Government 

merely seeks to restore his mental competency for sentencing. 

He thus seeks to distinguish his case from the vast majority of 

cases under Sell, where the Government seeks to restore a 

defendant’s competency before trial has begun. He then 
12

argues that the Government lacks an important interest here 

because the crimes at issue, violations of 18 U.S.C. § 115, are 

less serious than the crimes that were at issue in Grape and 

Sell.

Cruz next raises arguments that concern the District 

Court’s reference to and, in some sense, reliance on the PSR. 

He contends that such reliance was misplaced because he had 

not yet had an opportunity to object to the Guidelines range 

calculated in the PSR, which was based on a career-offender 

enhancement. He also finds fault with the District Court for 

relying on the PSR because it does not take into account his

mental health status, which could serve as a basis for either a 

downward departure or variance.

Finally, he states that it is very likely that he will be 

civilly committed to a suitable facility for care and treatment

and that such likelihood constitutes a special circumstance 

that undermines the Government’s interest.

The Government responds that Cruz failed to raise 

these issues before the District Court and urges us to review 

those issues only for plain error. Cf. FED. R. CRIM. P. 52(b). 

It also asserts that no error was committed, plain or otherwise, 

in the Sell proceedings before the District Court.

Our discussion will begin with the threshold inquiry 

raised by the Government: the appropriateness of plain error 

review. We thereafter turn our attention to the Sell-specific 

standard of review, which we have not had cause to examine 
13

since our 2008 decision in Grape. Finally, we will examine 

the merits of each of Cruz’s arguments. 3

III.

The District Court had jurisdiction under 18 U.S.C. § 

3231 because Cruz was charged with violations of federal 

law. It is well-settled that we have jurisdiction under the

collateral order exception to 28 U.S.C. § 1291. See, e.g.,

Grape, 549 F.3d at 597.

IV.

Cruz disputes the Government’s invocation of plain 

error review on three grounds. First, he argues that plain 

error review cannot rise here under Federal Rule of Criminal 

Procedure 52(b) because the appeal does not concern a purely 

“criminal” issue. Second, he argues that the Government’s 

invocation of plan error review “overlooks significant factual 

 3 Ordinarily, we would determine as a threshold matter 

whether our analysis is better couched under Sell or, 

alternatively, Washington v. Harper, 494 U.S. 210 (1990). 

See, e.g., United States v. Dillon, 738 F.3d 284, 290 (D.C. 

Cir. 2013). Here, the District Court received psychological 

evaluations that rendered Harper inapplicable because they 

demonstrated that Cruz was not a danger to himself or others. 

Those evaluations accorded with the Government’s position 

before the District Court and similarly accord with its position 

on appeal. Thus, we will proceed under Sell without further 

discussion.
14

and procedural aspects of this case that belie the application 

of such a standard.” (Reply Br. at 3.) Finally, he contends

that the arguments at issue raised on appeal were preserved in 

the Stay Brief.

Upon full consideration of Cruz’s arguments, we have 

concluded that they have little merit. For the reasons that 

follow, we will review this appeal only for plain error.

A.

Cruz first argues against the Government’s invocation 

of plain error review because the Federal Rules of Criminal 

Procedure neither explicitly recognize nor provide a 

framework for objections in Sell proceedings. He thus 

distinguishes the instant appeal from an appeal from, for 

example, denial of traditional post-trial motions. He also

argues that the absence of such framework precludes the 

forfeiture of arguments that he could have raised but did not 

raise in the District Court’s Sell proceedings.

Cruz’s arguments invite consideration of traditional 

notions of issue preservation, forfeiture, and waiver. 

Forfeiture, of course, is not exactly the same as waiver; rights 

may be forfeited without being waived. See Freytag v. 

Comm’r, 501 U.S. 868, 895 (1991) (Scalia, J., concurring in 

part and dissenting in part). The distinction between those 

terms is particularly important in criminal appeals. We will 

review issues and arguments that were forfeited before the 

District Court but, as a general rule, we will not examine 

those that were knowingly and intelligently waived. See, e.g., 
15

Gov’t of the V.I. v. Rosa, 399 F.3d 283, 290-91 (3d Cir. 2005) 

(“‘[W]here there was forfeiture, we apply a plain error 

analysis; where there was waiver, we do not.’” (citation 

omitted)).

The Supreme Court considered the differences

between forfeiture and waiver in United States v. Olano. 

There, in the context of a criminal appeal, the Court rejected 

the bright-line application of waiver doctrines to an issue that 

was merely forfeited during trial and presented for the first 

time on appeal. See United States v. Olano, 507 U.S. 725, 

732-34 (1993). It noted that “[a] rigid and undeviating 

judicially declared practice under which courts of review 

would invariably and under all circumstances decline to 

consider all questions” that were forfeited “would be out of 

harmony with . . . the rules of fundamental justice.” Id. at 

732 (citation and internal quotation marks omitted). 

“Although in theory it could be argued that ‘[i]f the question 

was not presented to the trial court no error was committed by 

the trial court [and] hence there is nothing to review,’” the 

Court rejected that theory, noting that it was “not the theory 

that Rule 52(b) adopts.” Id. at 733 (first alteration in original; 

citation omitted).

The Supreme Court further explained in Olano that 

plain error includes any “[d]eviation from a legal rule” that is 

not explicitly, knowingly, and intelligently waived (e.g., 

through a guilty plea made pursuant to Rule 11). See 507 

U.S. at 732-33. The parties do not assert and the record does 

not support a finding of such waiver here. Thus, the plain 

language of Rule 52(b) appears to belie Cruz’s argument, as 
16

that rule applies to any “plain error that affects substantial 

rights.” FED. R. CRIM. P. 52(b).

4

Finally, it is noteworthy that this Court’s review for 

plain error would comport with other courts’ application of 

 4 We are sensitive to the fact that this appeal concerns 

Cruz’s “substantial rights,” in the colloquial sense. Indeed, 

we are sensitive to the significant liberty interest at stake: 

Cruz’s interest “in avoiding the unwanted administration of 

antipsychotropic drugs.” Harper, 494 U.S. at 221. There are 

“several dimensions” to that liberty, which “are both physical 

and intellectual. Every violation of a person’s bodily 

integrity is an invasion of his or her liberty. . . . And when 

the purpose or effect of forced drugging is to alter the will 

and the mind of the subject, it constitutes a deprivation of 

liberty in the most literal and fundamental sense.” Id. at 237-

38 (Stevens, J., concurring in part and dissenting in part); see 

also id. (“The liberty of citizens to resist the administration of 

mind altering drugs arises from our Nation’s most basic 

values.”).

We note, however, that the appeal also concerns 

“substantial rights” in the sense contemplated by Rule 52(b) 

and characterized in Olano as rights that affect the outcome 

of a proceeding. The order authorizing the BOP to forcibly 

medicate Cruz plainly meets that test. See, e.g., Sell, 539 U.S. 

at 176-77 (“By the time of trial [the defendant] will have 

undergone forced medication—the very harm that he seeks to 

avoid. He cannot undo that harm even if he is acquitted. 

Indeed, if he is acquitted, there will be no appeal through 

which he might obtain review.”).
17

that standard to similar appeals. See Dillon, 738 F.3d at 287 

(recognizing forfeiture of argument on the first Sell criterion 

and related “special circumstances,” and reviewing appeal for 

plain error); United States v. Baldovinos, 434 F.3d 233, 239 

(4th Cir. 2006).

B.

Cruz next argues that any assertion of forfeiture 

“overlooks significant factual and procedural aspects of this 

case that belie the application of” plain error review. (Reply 

Br. at 3.) Specifically, he argues that his appellate arguments 

warrant de novo review because he lacked an opportunity to 

oppose the Government’s motion. Essentially, his argument 

tracks Rule 51(b) of the Federal Rules of Criminal Procedure, 

which provides in pertinent part: “If a party does not have an 

opportunity to object to a ruling or order, the absence of an 

objection does not later prejudice that party.” FED. R. CRIM.

P. 51(b).

We see little merit in this argument. Review of the 

District Court proceedings plainly demonstrates that Cruz 

enjoyed but failed to avail himself of several opportunities to 

oppose the Government’s motion.

Cruz initially faults the Government for asserting that 

he failed to respond to its motion. This aspect of his 

argument has two parts. First, he cites the Government’s 

certificate of non-concurrence (i.e., the certificate included in 

its motion papers) as evidence of his opposition. Second, and 

of purportedly “[g]reater significance,” he notes that the 
18

District Court scheduled an evidentiary hearing only six days 

after the Government filed its motion. Because the District 

Court granted the Government some of the relief that it 

sought, he posits that there existed no basis for a response.

We find no merit in the argument that relies on the 

Government’s certificate of non-concurrence. That certificate 

was filed pursuant to the District Court’s Local Rules, which 

require the movant to certify that it “sought concurrence in 

the motion from each party, and that it ha[d] been either given 

or denied.” M.D. PA. L. R. 7.1. By filing the certificate, the 

Government met its burden. But the Government’s filing 

cannot be construed as meeting Cruz’s burden of filing 

meaningful opposition. This conclusion rests on both the 

District Court’s adoption and interpretation of its Local Rules. 

The District Court has made clear that a party opposing a 

motion must file an opposition brief. See Nat’l Med. Care, 

Inc. v. Am. Renal Assocs., Inc., No. 1-702, 2002 WL 

31107534, at *5 n.5 (M.D. Pa. Sept. 17, 2002); GGIS Ins. 

Servs., Inc. v. Lincoln Gen. Ins. Co., Inc., No. 10-932, 2011 

WL 484180, at *2 n.3 (M.D. Pa. Feb. 7, 2011). Indeed, 

Middle District Local Rule 7.6 provides the framework for 

timely-filed opposition and states that “[a]ny party who fails 

to comply with this rule shall be deemed not to oppose such 

motion.” M.D. PA. L. R. 7.6 (emphasis added).

We similarly find no merit in Cruz’s argument that the 

District Court’s calendaring of an evidentiary hearing 

obviated the need for opposition papers. Although the 

District Court quickly granted the Government’s scheduling 

request, the Government’s ultimate goal was clear: it sought 
19

an order authorizing the BOP to forcibly medicate Cruz. 

Cruz was on notice of the Government’s ultimate request for 

relief, and he thus was or should have been aware of his 

obligation to oppose (or be deemed to support) it.

Cruz also argues that he was not obliged to present 

either evidence or argument at the Sell hearing. In some 

sense, he is correct. The Government bore the ultimate 

burden of proof under Sell, and Cruz was free to leave the 

Government to its proofs. But insofar as Cruz ignored the 

local rules and chose not to present argument at the 

conclusion of the Sell hearing, he made that choice at his 

peril. E.g. Cabán Hernández v. Philip Morris USA, Inc., 486 

F.3d 1, 7 (1st Cir. 2007).

C.

Notwithstanding his earlier arguments, Cruz argues 

that the Stay Brief preserved the same arguments that he now 

raises on appeal. We disagree. The Stay Brief was incapable 

of preserving the arguments that Cruz could have raised 

earlier but did not raise. See Mick Haig Prods. E.K. v. Does 

1-670, 687 F.3d 649, 652 (5th Cir. 2012). That conclusion

would hold true even if the Stay Brief was treated as favoring 

both a stay and reconsideration on the merits. See United 

States v. Dupree, 617 F.3d 724, 732-33 (3d Cir. 2010). And 

it “applies with added force” here, “where the timely raising 

of the issue would have permitted the parties to develop a 

factual record.” Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 

(3d Cir. 2002) (citation and internal quotation marks omitted).
20

V.

We now address the Sell-specific standard of review 

and the substantive arguments that Cruz advances on appeal.

A.

As noted above, the first Sell criterion concerns the 

Government’s interest in forcibly medicating a defendant to 

restore his mental competency. To justify such action, “a 

court must find that important governmental interests are at 

stake.” Sell, 539 U.S. at 180. A court’s conclusions 

regarding the importance of the government’s interest 

necessarily involve balancing the seriousness of the crimes at 

issue with case-specific “[s]pecial circumstances” that “may 

lessen the importance of that interest.” Id. Examples of 

special circumstances include “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[)]” and the likelihood, given 

“[t]he defendant’s failure to take drugs voluntarily,” that he 

will face “lengthy confinement in an institution for the 

mentally ill . . . that would diminish the risks that ordinarily 

attach to freeing without punishment one who has committed 

a serious crime.” Id.

The Sell Court did not allocate burdens of proof or 

establish standards for appellate review for any of the four 

Sell criteria. Thus, we addressed those issues for the first 

time in Grape, and we concluded that: (1) the first Sell 

criterion is a question of law subject to plenary review; (2) the 
21

second, third, and fourth Sell criteria are questions of fact that 

are subject to clear error review; and (3) “the Government 

bears the burden of proof on factual questions by clear and 

convincing evidence.” 549 F.3d at 598-99.5

 Our discussion 

of case-specific special circumstances in that case was limited 

both by and to the arguments raised by the parties.

Since Grape was issued, at least two other federal 

appellate courts have further refined the burdens of proof and 

standard of review that apply to the first Sell criterion. First, 

the Court of Appeals for the Sixth Circuit announced a 

burden-shifting standard that recognizes the defendant’s 

interest in bringing special circumstances to light. See United 

States v. Mikulich, 732 F.3d 692, 699 (6th Cir. 2013) (“While 

the ultimate burden of proving an important interest . . . 

remains with the Government, . . . the defendant [must] 

demonstrate that the special circumstances of his case 

undermine the Government’s interest . . . .”). Shortly 

thereafter, the Court of Appeals for the D.C. Circuit clarified 

the related standard of review, ruling that it would “review de 

novo the District Court’s conclusion that the Government has 

an important interest” but qualifying that “[t]o the extent that 

the District Court’s determination under the first prong of Sell

depends on findings of fact,” it would “review those findings 

 5 Those conclusions followed the trends set by the 

majority of federal appellate courts. When Grape was 

decided, the federal appellate courts that had reviewed the 

first Sell criterion agreed that it was a question of law subject 

to plenary review. See Grape, 549 F.3d at 598 & n.7 

(surveying cases).
22

under a clear-error standard.” Dillon, 738 F.3d at 291 

(citations omitted).

Insofar as the Grape court discussed the first Sell

criterion, it had little reason to consider it as a mixed question 

of both law and fact, expound upon the related standards of 

review, or address a shifting allocation of the burdens of 

proof. There was no dispute in that case that the defendant 

had been incarcerated for three-and-a-half years and faced 

mandatory minimum sentences of ten and fifteen years. 

Further, the facts of that case led the Court to “decline to 

reach whether [the defendant’s] potential for indefinite civil 

confinement on the facts prior to his Harper medication 

would have sufficed under the first Sell factor to overcome 

the Government’s stated interest.” Grape, 549 F.3d at 603 

n.10.6

We will thus adopt both the Mikulich burden-shifting 

standard and the mixed standard of review set forth in Dillon. 

Such adoption builds on the standard set forth by the Grape

court and clarifies the extent to which defendants bear 

responsibility for proving the existence of special 

circumstances—circumstances recognized by the Supreme 

Court as inherently fact-specific. See Sell, 539 U.S. at 180 

(“Courts . . . must consider the facts of the individual case in 

evaluating the Government’s interest . . . .”).

 6 Admittedly, the Grape court discussed the likelihood 

of civil confinement. But given the clear statement that it 

would not reach that issue, its related commentary is best 

characterized as obiter dicta.
23

B.

Cruz earlier conceded, in the Stay Brief, that “the 

government has an interest in sentencing a convicted 

defendant.” (Supplemental App. 9.) Similarly, he recognizes 

on appeal that “there is a punishment interest that has some 

import.” (Appellant Br. at 8.) But he now raises four related 

arguments that we must address. First, he argues that the 

Government does not and cannot have an important interest in 

restoring a defendant’s mental competency to proceed with 

sentencing. In that sense, he distinguishes his case from 

Grape, Sell, and others where the Government’s interest arose 

pre-trial. He next argues that the offenses for which he was 

convicted—i.e., Count II and Count III, which were each a 

violation of 18 U.S.C. § 115—are not “serious” offenses that 

might justify the Government’s interest. Finally, he argues 

that the District Court erred when it considered the 

importance of the Government’s interest by reference to the 

Guidelines range in the PSR and, more generally, to the PSR 

itself.7

1. The Government Can Have an Important Interest 

in Restoring a Defendant’s Mental Competency 

and Rendering Him Fit to Proceed with Sentencing

In 2006, the Court of Appeals for the Sixth Circuit 

stated that it “appear[ed] yet unresolved whether the Sell

 7 Certain other arguments that Cruz raises for the first 

time in the Reply Brief will not be addressed. See, e.g., 

United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
24

principles permit the Government to involuntarily medicate a 

defendant for the purpose of rendering him competent to be 

sentenced,” noting that the Sell principles had to that point 

only been applied “where the Government’s purpose in 

medicating a defendant is to render him ‘competent to stand 

trial.’” Baldovinos, 434 F.3d at 241 n.7 (quoting Sell, 539 

U.S. at 181). On that basis, Cruz argues on appeal that the 

Government lacks an important interest in restoring his 

mental competency to render him fit to proceed with 

sentencing. He seeks to distinguish this case from Grape, 

Sell, and others like it, where the Sell proceedings took place 

pre-trial.

Since Baldovinos was decided, only one court has 

considered whether the Government may have such an 

interest.8 In 2006, in United States v. Wood, the District 

Court for the Eastern District of Virginia affirmatively 

answered that question. See Wood, 459 F. Supp. 2d at 456-

60. In effect, the Wood court reached the same conclusion 

 8 At oral argument, Cruz directed our attention to a 

second case, United States v. Perez-Rubalcava, No. 03-

20018, 2008 WL 4601024, at *2 (N.D. Cal. Oct. 15, 2008). 

However, because the parties in that case agreed that the 

defendant “ha[d] already been in custody for a period of time 

nearly as long as the time for which he would likely have 

been sentenced if competent,” that court did not have 

occasion to reach the questions presented here. See id.

(noting that the Government “ha[d] in large part obtained the 

deterrence and other goals of a criminal conviction and 

sentence”).
25

that the Government urges here: it held that the Government 

has an important interest in restoring a defendant’s mental

competency for sentencing because it has a legitimate interest 

in punishing those who have committed crimes. See id. at 

458 (“[T]he sentence a defendant receives should accurately 

reflect the real nature of his offense, and should be tailored to 

the defendant’s circumstances.”); id. at 459 (“[T]here is a 

very important, legislatively articulated, governmental 

interest in achieving fair, reasonable and non-disparate 

sentences for similarly situated defendants who have engaged 

in similar conduct.”).

The Wood court’s holding rests on its analysis of the 

Sentencing Reform Act of 1984 (“the Sentencing Act”), the 

Sentencing Guidelines, and United States v. Booker, 543 U.S. 

220 (2005), where the Supreme Court discussed 

governmental sentencing interests. See id. at 458-59. It

found in pertinent part that Booker “made clear that the 

Government has an important interest in enforcing” both the 

Sentencing Act and Sentencing Guidelines. Id. It thus 

concluded that the Government has an important interest in 

“[r]easonable, constitutionally acceptable measures that help 

achieve that interest,” including, importantly, “[t]he forcible 

administration of medication to restore competence for 

sentencing.” Id. at 459.

Although the Wood court’s decision does not bind this 

Court, its reasoning is highly persuasive. As that court 

recognized, in Booker the Supreme Court highlighted 

governmental interests that are inherent in sentencing 

proceedings. It repeatedly emphasized that the sentencing 
26

scheme put in place by the Sentencing Act and Sentencing 

Guidelines “diminishes sentencing disparity” and “move[s]

the sentencing system in the direction of increased 

uniformity.” Booker, 543 U.S. at 250, 253. It also repeatedly 

emphasized that sentencing uniformity depends in critical part 

on the relationship between punishment and “the real conduct

that underlies the crime of conviction.” Id. at 250; see id. at 

251 (“Judges have long looked to real conduct when 

sentencing,” and often rely on “a presentence report, prepared 

by a probation officer, for information (often unavailable until 

after the trial) relevant to the manner in which the convicted 

offender committed the crime of conviction.”); id. at 253-54 

(“[I]ncreased uniformity . . . does not consist simply of 

similar sentences for those convicted of violations of the same 

statute . . . . It consists, more importantly, of similar 

relationships between sentences and real conduct, 

relationships that Congress’ [sic] sentencing statues helped to 

advance[.]”).

The Government cannot achieve the sort of uniformity 

contemplated in Booker without formal sentencing 

proceedings. A criminal defendant enjoys the right to 

allocute at sentencing, and he also enjoys the right to object to 

the PSR, to argue for favorable sentencing variances and 

downward departures from the Sentencing Guidelines, and to 

oppose any arguments favoring upward variances or 

departures from the Guidelines. Those rights, which to a 

great degree reflect the defendant’s “real conduct,” id. at 250, 

necessarily require the defendant to both actively participate 

in sentencing proceedings and inform his attorney’s actions. 

Because an incompetent defendant is presumed unable to take 
27

those actions, the Government maintains an important interest 

in restoring his mental competency and enabling him to do so.

Cruz here raises two arguments that the Wood court 

appears not to have had occasion to address. First, he argues 

that the Government’s interest in forcibly medicating him to 

restore his competency for sentencing is undercut by its 

ability to seek a provisional sentence under 18 U.S.C. § 4244, 

whereby “in lieu of being sentenced to imprisonment” he 

would “be committed to a suitable facility for care and 

treatment” until he either “recovered from his mental disease 

or defect” or had been confined for “the maximum term 

authorized by law for the offense for which [he] was found 

guilty.” 18 U.S.C. § 4244(d), (e). He also argues that the 

Government’s interest in restoring his competency for 

sentencing is less than the interest recognized in Sell, 

contending that the Supreme Court placed particular emphasis 

on the pre-trial nature of the proceedings when it announced 

that “it may be difficult or impossible to try a defendant who 

regains competence after years of commitment during which 

memories may fade or evidence may be lost.” Sell, 539 U.S. 

at 180. But neither argument carries significant weight. Cruz 

would have this Court parse sentencing proceedings from the 

substantive trial proceedings to which they are inexorably 

linked. This Court, like the Wood court, will reject that 

invitation. “If the sentencing phase of a federal criminal 

prosecution is not quite a ‘tail which wags the dog of the

substantive offense,’ McMillan v. Pennsylvania, 477 U.S. 79, 

88[] (1986), it is nonetheless a critical step in the criminal 

justice process that Congress designed.” Wood, 459 F. Supp. 

2d at 459.
28

Insofar as Cruz argues that provisional sentencing 

under § 4244 undermines the Government’s important 

interest in restoring his competency for sentencing, he 

appears to ignore important language from the Supreme 

Court’s opinion in Sell. There, the Supreme Court noted that 

the possibility of civil confinement “affects, but does not 

totally undermine, the strength of the need for prosecution.” 

539 U.S. at 180 (emphasis added). And it appears axiomatic 

that sentencing is an integral part of prosecution:

When people speak of prosecutions, they 

usually mean a proceeding that is under way in 

which guilt is to be determined. In ordinary 

usage, sentencing is not part of the prosecution, 

but occurs after the prosecution has concluded. . 

. [However, r]ather than using terms in their 

everyday sense, (t)he law uses familiar legal 

terms in their familiar legal sense. The term 

‘prosecution’ clearly imports a beginning and 

an end.

. . . Final judgment in a criminal case 

means sentence. The sentence is the judgment. 

In the legal sense, a prosecution terminates only 

when sentence is imposed.

Bradley v. United States, 410 U.S. 605, 608 (1973) (defining 

“prosecution” within meaning ascribed by savings clause of 

Section 1103(a) of the Comprehensive Drug Abuse 
29

Prevention and Control Act of 1970).

9 Indeed, it is hard to 

imagine prosecution without sentencing. Such a scheme 

would turn criminal convictions into little more than paper 

tigers. See United States v. Petty, 982 F.2d 1365, 1371 (9th 

Cir. 1993) (Noonan, J., dissenting on other grounds) (“To 

deny that the sentencing process is part of a criminal 

prosecution is to cut out the guts of criminal prosecution as it 

is conducted in our courts.”).

Furthermore, insofar as Cruz argues that the Supreme 

Court’s holding in Sell should be limited to the proceedings in 

 9 Several cases support this conclusion. See Gardner 

v. Florida, 430 U.S. 349, 358 (1977) (concluding in context 

of Sixth Amendment that “sentencing is a critical stage of the 

criminal proceedings at which [a defendant] is entitled to the 

effective assistance of counsel”); Bradley, 410 U.S. at 611 

(“As we have said, sentencing is part of the prosecution.”); 

United States v. Thompson, 713 F.3d 388, 394 (8th Cir. 2013) 

(holding in First Amendment context that “[s]entencing may . 

. . be viewed as within the scope of the criminal trial itself” 

(citation omitted)); United States v. Smith, 354 F.3d 171, 175 

(2d Cir. 2003) (“[S]entencing is an integral part of 

‘prosecution’ of the accused, as that term is used in” the 

General Saving Statute, 1 U.S.C. § 109”); United States v. 

Wells, 154 F.3d 412, 414 (7th Cir. 1998) (in affirming 

conviction for obstruction of justice, stating unequivocally 

that “sentencing is part of the prosecution”); United States v. 

Green, 680 F.2d 183, 191 (D.C. Cir. 1982) (Bazelon, J., 

dissenting on other grounds) (“Sentencing is the most 

important part of the typical criminal trial.”).
30

which a defendant’s guilt may be determined, he ignores 

important procedural aspects of the sentencing phase of trial. 

As noted above, the Supreme Court stated its concern in Sell

that “memories may fade or evidence may be lost.” 539 U.S. 

at 180. That concern applies with equal force to both the 

jury’s determination of a defendant’s guilt and the court’s 

sentencing determinations. Whereas the Court announced in 

Sell that “it may be difficult or impossible to try a defendant 

who regains competence after years of commitment during 

which memories may fade and evidence may be lost,” id. 

(emphasis added), we recognize that it may be difficult or 

impossible to sentence a defendant who regains competence 

after years of commitment for substantially the same reasons. 

Cf. Booker, 543 U.S. at 251 (noting that “judges have long 

relied upon a presentence report . . . for information (often 

unavailable until after the trial)” for sentencing purposes).

2. The Offenses at Issue Were “Serious” and They 

Thus Justified the Government’s Interest

Cruz next argues that the crimes for which he was 

convicted—Count II and Count III, violations of 18 U.S.C. § 

115—were not as serious as the crimes at issue in Sell and 

Grape, and he appears to contend that the seriousness of his 

crimes undermines the Government’s interest in restoring his 

competency for sentencing. The seriousness of a defendant’s 

crimes is, of course, the yardstick against which the court will 

measure the governmental interests that are at stake. And 

serious crimes may be committed against either persons or 

property because “[i]n both instances the Government seeks 
31

to protect through application of the criminal law the basic 

need for human security.” 539 U.S. at 180.

Because this Court has not yet promulgated a test to 

determine the seriousness of a crime, the District Court 

gauged the seriousness of Cruz’s crimes by reference to both 

the statutory maximum sentence associated with those 

offenses and the likely Guidelines range that was set forth in 

the PSR. It concluded that, under either rubric, his crimes 

were serious. We agree, and, as in Grape, need not decide 

here whether the seriousness of an offense should be 

measured against either the statutory maximum associated 

with an offense or the likely Guidelines range.

Cruz has not argued by reference to the applicable 

statutory maximum that his crimes are not serious. Indeed, it 

appears that he cannot. At least two other federal appellate 

courts have determined that the offense at issue here, a 

violation of 18 U.S.C. § 115, is a serious crime because it 

carries a maximum sentence of ten years. See United States 

v. Palmer, 507 F.3d 300, 301, 303-04 (5th Cir. 2007); United 

States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005) 

(concluding that violation of 18 U.S.C. § 115 is a serious 

crime “under any reasonable standard”).

His argument on the seriousness of his crimes as 

gauged by the Guidelines range in the PSR is similarly 

unavailing. In United States v. Gillenwater, the defendant 

was charged with violations of 18 U.S.C. §§ 875 (transmitting 

threatening interstate communications) and 876 (transmitting 

threatening communications by mail), and the “likely 
32

Guidelines range [w]as 33 to 41 months.” 749 F.3d 1094, 

1101 (9th Cir. 2014). That Guidelines range is less than that 

at issue here.10 Retired Supreme Court Justice Sandra Day 

O’Connor, writing for the Ninth Circuit Court of Appeals, 

considered the likely Guidelines range and concluded that the 

charged offenses were “serious enough to establish an 

important governmental interest in [the defendant’s] 

prosecution.” Id. She noted that the defendant stood 

“accused of making lurid and distressing threats against a 

bevy of government officials and employees” and she thus 

reasoned that through prosecution the Government sought 

“‘to protect through application of the criminal law the basic 

human need for security’ . . . [and] the very integrity of our 

system of government.” Id. (quoting Sell, 539 U.S. at 180).

 10 Cruz takes issue with the likely Guidelines range 

that was presented in the PSR, which was premised on a 

career offender enhancement. It appears, however, that the 

legal arguments relating to that issue are foreclosed by our 

recent decision in United States v. Marrero, 743 F.3d 389 

(2014).

In any event, the Guidelines range urged by Cruz—

i.e., 51 to 63 months—is still greater than that at issue in 

Gillenwater. It is thus a difference without distinction. Even 

if we accepted the Guidelines range urged by Cruz, then we 

would conclude that the crimes at issue are serious. See 

Gillenwater, 749 F.3d at 1101 (concluding that threats of 

violence, directed against federal officials, were serious 

where likely Guidelines range called for only thirty three to 

forty-one months’ imprisonment).
33

The crimes at issue here are no less “lurid and 

distressing” than those at issue in Gillenwater. There, the 

defendant was charged with sending violent and graphically 

descriptive threats to officials from the Occupational Safety 

and Health Administration and the Department of Labor. See 

id. at 1097-98. Here, Cruz repeatedly threatened officials 

from the SSA and Federal Protective Service (“FPS”). He 

yelled at several SSA officials that they were “going to need 

toe tags” and told an FPS official that he would “take [his] 

ticket book, take [his] gun, take [his] doughnut and beat [his] 

ass.” In another, particularly graphic encounter with an FPS 

official, he stated that “[t]here [sic] gonna be a war about 

this,” explaining that you should be concerned about yourself. 

. . . If I’m gonna tell you I’m gonna kill you, I ain’t gonna 

tell you I’m gonna kill you, I’m gonna swing at you, all I 

gotta do is hit you one time,” and inviting the official to

“come see me in person so we can talk and see whatever, so I 

can see what I’m talking to. Give me a target, you have one.” 

United States v. Cruz, No. 11-242, 2012 WL 3027809, at *1 

(M.D. Pa. July 24, 2012) (citations and quotation marks 

omitted).

Those statements demonstrate the reasonableness of 

concluding that the Government’s interest in preserving 

“human security” is as great here as it was in both Sell and 

Gillenwater. See Sell, 539 U.S. at 180 (recognizing the 

Government’s need “to protect through application of the 

criminal law the basic human need for security”); 

Gillenwater, 749 F.3d at 1101 (recognizing the Government’s 
34

need “to protect the very integrity of our system of 

government”).11

3. As a General Matter, the District Court Did Not 

Commit Reversible Plain Error When it 

Considered and Relied on the PSR

Cruz next argues that the District Court erred when it 

considered the Guidelines range appearing in the PSR 

 11 In any event, the District Court’s consideration of 

the seriousness of Cruz’s offenses by reference to the likely 

Guidelines range cannot constitute plain error. As noted 

above, we have yet to decide whether the seriousness of an 

offense should be measured against mandatory minimum 

sentences or likely Guidelines ranges. Other circuit courts are 

split on that issue. See Grape, 549 F.3d at 600; see also 

Dillon, 738 F.3d at 292 (recognizing the circuit split as 

recently as December of 2013). Under those circumstances, 

there could be no plain error. See, e.g., United States v. 

Keller, 666 F.3d 103, 109 & n.7 (3d Cir. 2011).

Furthermore, the error that Cruz would have us assign 

could not have affected his substantial rights. Although the 

District Court concluded that Cruz’s crimes were serious by 

reference to the likely Guidelines range, it reached the same 

conclusion upon its separate and alternative analysis of the 

mandatory maximum sentence associated with his crimes. 

Because it consideration of the likely Guidelines range 

ultimately did not affect the outcome of his Sell proceeding, 

Cruz was not and could not be prejudiced by it. See United 

States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000).
35

because that range did not account for Cruz’s mental health 

status, which could potentially serve as a basis for a 

downward departure or variance. However, because Cruz 

raises this argument for the first time in the Reply Brief, we 

will not consider it. Instead, we will deem it, like the other 

arguments that were raised for the first time in the Reply 

Brief, to be waived. See Pelullo, 399 F.3d at 222.

C.

Lastly, Cruz argues that the District Court erred when 

it concluded that the Government’s interest was not 

undermined by the likelihood that Cruz will be civilly 

committed in the future. As discussed above, that 

circumstance involves a fact-specific inquiry, and , 

accordingly, this Court should review the District Court’s 

related legal conclusions de novo and its factfinding for clear 

error. See Dillon, 738 F.3d at 291.

The District Court considered the likelihood that Cruz 

would be civilly committed in the future under both federal 

and state civil commitment statutes and concluded that it was, 

at best, unclear. (See App. 9-10.) In pertinent part, it 

explained:

Under 18 U.S.C. § 4246(d), the court would 

need to find that Cruz is suffering from a mental 

disease or defect that would create “a 

substantial risk of bodily injury to another 

person or serious damage to property of 

another” if released. Similarly, the state civil 

commitment statute, 50 [Pa.C.S.] § 7301, 
36

provides for involuntary emergency 

examination and treatment of people who are 

“severely mentally disabled and in need of 

immediate treatment.” Under the statute, a 

person is severely mentally disabled when, as a 

result of mental illness, “he poses a clear and 

present danger of harm to others or to himself.” 

50 [Pa.C.S.] § 7301(a). A “clear and present 

danger of harm” to others may be 

“demonstrated by proof that the person has 

made threats of harm and has committed acts in 

furtherance of the threat to commit harm.” 50 

[Pa.C.S.] § 7301(b).

The May 2013 evaluation explicitly 

states that Cruz has not posed a threat to himself 

or others while housed at FMC-Butner and does 

not pose a risk of committing serious harm to 

others. Cruz was convicted of two counts of 

threatening federal law enforcement officers, 

but there is no indication that he committed 

explicit acts in furtherance of those threats. On 

the other hand, the pre-sentence investigation 

report indicates that Cruz has a lengthy 

criminal history involving numerous acts of 

violence and threats of violence and an 

extensive history of mental health treatment, 

including involuntary commitments. Entries 

from the [BOP’s] Psychology Data System, 

dated June 20, 2013 to October 10, 2013, 

indicate that Cruz has continued to threaten 

violence against others. Several entries indicate 
37

that the potential for Cruz to cause harm to 

others is moderate or high.

(Id.) On those facts, it concluded that “[u]ncertainty 

surrounding the issue of whether Cruz is likely to be civilly 

committed does not materially diminish, and it clearly does 

not undermine, the government’s interest in sentencing Cruz.” 

(App. 10.)

Following close review of the record, we will not 

disturb the District Court’s factfinding because it is not 

clearly erroneous. Its recitation of the facts, including those 

related to the May 2013 evaluation, Cruz’s history of mental 

health issues, and his history of violence and threats of 

violence, is well-supported by the record. Thus, we find no 

error in the District Court’s conclusion that it was uncertain 

whether Cruz would in the future meet the factual 

prerequisites for civil commitment under either 18 U.S.C. § 

4246 or 50 Pa.C.S. § 4244. The stark contrast between the 

May 2013 evaluation and Cruz’s history of both threats of 

violence and actual violence fairly led the District Court to 

reach that conclusion. Further, we find no plain error in the 

District Court’s conclusion that such uncertainty neither 

materially diminished or undermined the Government’s 

interest in restoring his competency for sentencing. Cf.

Mikulich, 732 F.3d at 697.

Furthermore, under plain error review, Cruz has failed 

to demonstrate that he was prejudiced by any alleged error in 

either the District Court’s factfinding or ultimate conclusion 

that uncertainty surrounded the likelihood of future civil 
38

commitment. Although eligibility for civil commitment may 

“diminish[] the risks that ordinarily attach to freeing without 

punishment one who has committed a serious crime,” Sell, 

539 U.S. at 180, and thereby lessen the Government’s interest 

in restoring Cruz’s competency, see Gillenwater, 749 F.3d at 

1101, the uncertainty found by the District Court here would 

undoubtedly reduce the amount by which this circumstance 

would lessen the Government’s interest.

VI.

For the forgoing reasons, we will affirm the order 

entered by the District Court pursuant to Sell v. United States, 

539 U.S. 166 (2003) on October 24, 2013.