FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50198

Plaintiff-Appellee, D.C. No.

v. CR-04-0180 DMS

JOSE HERNANDEZ-VASQUEZ, ORDER

Defendant-Appellant. AMENDING  OPINION AND

DENYING

PETITION FOR

PANEL

REHEARING AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

May 15, 2007—Pasadena, California

Filed October 31, 2007

Amended January 22, 2008

Before: Raymond C. Fisher and Richard R. Clifton,

Circuit Judges, and Jeremy Fogel,* District Judge.

Opinion by Judge Fogel

*The Honorable Jeremy Fogel, United States District Judge for the

Northern District of California, sitting by designation. 

761
COUNSEL

Robert A. Garcia, San Diego, California, counsel for the

appellant. 

Carol C. Lam, U.S. Attorney, Bruce M. Castetter and Neville

S. Hedley (argued), Assistant U.S. Attorneys, San Diego, California, for the appellee. 

ORDER

The opinion filed on October 31, 2007 and published at slip

opinion 14310-14325, 819 F.3d 811 (9th Cir. 2007) is

AMENDED as follows: 

Replace the third full paragraph on page 819 with the following:

Accordingly, we hold that a Sell order must provide

at least some limitations on the medications that may

be administered and the maximum dosages and duration of treatment. At a minimum, to pass muster

under Sell, the district court’s order must identify:

(1) the specific medication or range of medications

that the treating physicians are permitted to use in

their treatment of the defendant, (2) the maximum

dosages that may be administered, and (3) the duration of time that involuntary treatment of the defendant may continue before the treating physicians are

required to report back to the court on the defendant’s mental condition and progress. We stress that

while the court may not simply delegate unrestricted

authority to physicians, the restrictions it does

impose should be broad enough to give physicians a

reasonable degree of flexibility in responding to

changes in the defendant’s condition. Moreover, the

764 UNITED STATES v. HERNANDEZ-VASQUEZ
Government or the defendant may move to alter the

court’s order as the circumstances change and more

becomes known about the defendant’s response to

the medication. 

With this amendment the panel has voted unanimously to

deny the government’s petition for panel rehearing. 

IT IS SO ORDERED. 

OPINION

FOGEL, District Judge: 

Defendant-Appellant Jose Hernandez-Vasquez appeals the

order of the district court permitting Appellee, the United

States (“the Government”), to medicate him involuntarily to

render him competent for trial. We vacate and remand. 

BACKGROUND

Defendant was indicted on January 28, 2004 as a

previously-deported alien found in the United States in violation of 8 U.S.C. § 1326.1

 Defendant is subject to a maximum

prison term of twenty years, and the Government calculates

his likely sentencing range under the advisory sentencing

guidelines as 92-115 months. On May 6, 2004, Defendant

moved for a competency examination. On September 17,

2004, the district court found Defendant incompetent to stand

1Defendant previously has been convicted of the following crimes:

aggravated assault on a corrections officer in Arizona (twice); lewd and

lascivious acts with a child under the age of fourteen, in violation of Cal.

Penal Code § 288(a), for which he received a three-year custodial sentence; and misdemeanor annoying children and trespassing. Defendant

was ordered removed from the United States by an Immigration Judge on

August 1, 2003, and was removed on November 8, 2003. 

UNITED STATES v. HERNANDEZ-VASQUEZ 765
trial and committed him to the custody of the Attorney General pursuant to 18 U.S.C. § 4241. Defendant subsequently

was transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri. 

On March 3, 2006, the Government requested an evidentiary hearing on its motion to medicate Defendant involuntarily

to render him competent to stand trial. Alternatively, the Government requested an order directing the Medical Center to

evaluate Defendant for dangerousness. At a hearing held on

March 24, 2006, the district court granted the motion to medicate Defendant involuntarily. The district court issued a written order to that effect on March 29, 2006, and Defendant

timely appealed. On April 5, 2006, a motions panel of this

Court stayed the involuntary medication order pending the

outcome of this appeal. Consequently, Defendant has not yet

been medicated pursuant to the terms of the district court’s

order. 

DISCUSSION

The parties agree that Sell v. United States, 539 U.S. 166

(2003), governs the instant dispute. In that case, the United

States moved to medicate a criminal defendant involuntarily

in order to restore his competency for trial. On appeal from

the trial court’s order granting the Government’s motion,

which the Eighth Circuit had affirmed, the Supreme Court

considered “whether the Constitution permits the Government

to administer antipsychotic drugs involuntarily to a mentally

ill criminal defendant — in order to render that defendant

competent to stand trial for serious, but nonviolent, crimes.”

Sell, 539 U.S. at 169. The Court concluded that the Constitution allows the Government to do so “in limited circumstances.” Id.

[1] The Supreme Court began its analysis in Sell by reviewing its earlier decisions in Washington v. Harper, 494 U.S.

210 (1990), and Riggins v. Nevada, 504 U.S. 127 (1992). In

766 UNITED STATES v. HERNANDEZ-VASQUEZ
Harper, the Supreme Court recognized that an individual has

a significant liberty interest under the Due Process Clause of

the Fourteenth Amendment in avoiding the unwanted administration of antipsychotic drugs. Harper, 494 U.S. at 221-22.

The Court concluded, however, that a state’s interest in

administering medication to a dangerous inmate is legitimate

and important, id. at 225-26, and held that the Due Process

Clause allows a state “to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if

the inmate is dangerous to himself or others and the treatment

is in the inmate’s medical interest.” Id. at 227. In Riggins, the

Supreme Court overturned an order permitting involuntary

medication to render a defendant competent for trial on the

basis that the district court “did not acknowledge the defendant’s liberty interest in freedom from unwanted antipsychotic drugs.” 504 U.S. at 137. It concluded that “[t]his error may

well have impaired . . . constitutionally protected trial rights,”

by affecting the defendant’s demeanor, testimony, ability to

follow proceedings, and communications with counsel. Id.

Sell synthesized these two decisions as follows: 

Harper and Riggins[ ] indicate that the Constitution

permits the Government involuntarily to administer

antipsychotic drugs to a mentally ill defendant facing

serious criminal charges in order to render that

defendant competent to stand trial, but only if the

treatment is medically appropriate, is substantially

unlikely to have side effects that may undermine the

fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further

important governmental trial-related interests. 

This standard will permit involuntary administration

of drugs solely for trial competence purposes in certain instances. But those instances may be rare. That

is because the standard says or fairly implies [that

the trial court must make four findings.] 

UNITED STATES v. HERNANDEZ-VASQUEZ 767
Sell, 539 U.S. at 179-80. 

First, the court must find that “important governmental

interests are at stake.” Id. at 180 (emphasis in original). 

The Government’s interest in bringing to trial an

individual accused of a serious crime is important.

That is so whether the offense is a serious crime

against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic

need for security. 

Courts, however, must consider the facts of the individual case in evaluating the Government’s interest

in prosecution. Special circumstances may lessen the

importance of that interest. . . . The potential for

future [civil] confinement affects, but does not

totally undermine, the strength of the need for prosecution. The same is true of the possibility that the

defendant has already been confined for a significant

amount of time (for which he would receive credit

toward any sentence ultimately imposed, see 18

U.S.C. § 3585(b)). Moreover, the Government has a

concomitant, constitutionally essential interest in

assuring that the defendant’s trial is a fair one. 

Id. (internal citations omitted). 

“Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.” Id. at 181 (emphasis in original). Specifically, the court

must find that “the administration of the drugs is substantially

likely to render the defendant competent to stand trial” and

“substantially unlikely to have side effects that will interfere

significantly with the defendant’s ability to assist counsel in

conducting a trial defense.” Id.

768 UNITED STATES v. HERNANDEZ-VASQUEZ
“Third, the court must conclude that involuntary medication is necessary to further those interests.” Id. (emphasis in

original). It must be shown that any alternative, less intrusive

methods are unlikely to achieve substantially the same results;

and the court must consider less intrusive means for administering the drugs, such as a court order “backed by the contempt power.” Id.

Finally, the court must find that “administration of the

drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” Id. (emphasis in

original). 

After identifying these four required findings, the Supreme

Court stressed that a Sell inquiry is independent of the procedure that allows involuntary medication of dangerous inmates

under Harper. In fact, the Court stated explicitly that consideration of an involuntary medication order based on dangerousness is preferable to consideration of an order intended to

render a defendant competent for trial: 

A court need not consider whether to allow forced

medication [to render a defendant competent for

trial], if forced medication is warranted for a different purpose, such as the purposes set out in Harper

related to the individual’s dangerousness, or purposes related to the individual’s own interests where

refusal to take drugs puts his health gravely at risk.

There are often strong reasons for a court to determine whether forced administration of drugs can be

justified on these alternative grounds before turning

to the trial competence question. 

For one thing, the inquiry into whether medication

is permissible, say, to render an individual nondangerous is usually more “objective and manageable” than the inquiry into whether medication is

permissible to render a defendant competent. The

UNITED STATES v. HERNANDEZ-VASQUEZ 769
medical experts may find it easier to provide an

informed opinion about whether, given the risk of

side effects, particular drugs are medically appropriate and necessary to control a patient’s potentially

dangerous behavior (or to avoid serious harm to the

patient himself) than to try to balance harms and

benefits related to the more quintessentially legal

questions of trial fairness and competence. 

For another thing, courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative, Harper-type grounds. . . .

. . . Even if a court decides medication cannot be

authorized on the alternative grounds, the findings

underlying such a decision will help to inform expert

opinion and judicial decisionmaking in respect to a

request to administer drugs for trial competence purposes. . . . We consequently believe that a court,

asked to approve forced administration of drugs for

purposes of rendering a defendant competent to

stand trial, should ordinarily determine whether the

Government seeks, or has first sought, permission

for forced administration of drugs on these other

Harper-type grounds; and, if not, why not. 

Id. at 181-83 (internal citations omitted)(emphasis in original). In remanding the case to the district court, the Sell Court

noted that the Government could pursue multiple grounds for

forced medication on remand, “including the danger Sell

poses to himself or others.” Id. at 186. 

Because certain aspects of Sell are particularly relevant to

the instant appeal, we discuss them in depth below and apply

them to the instant case. But before we do, we must address

a threshold question: Whether the district court had an obligation to apply Harper and make a dangerousness inquiry

before proceeding under Sell. 

770 UNITED STATES v. HERNANDEZ-VASQUEZ
I

[2] As we have held previously, “[t]he Supreme Court

clearly intends courts to explore other procedures, such as

Harper hearings (which are to be employed in the case of

dangerousness) before considering involuntary medication

orders under Sell.” United States v. Rivera-Guerrero, 426

F.3d 1130, 1137 (9th Cir. 2005). Because Sell orders are “disfavored,” id., the district court, in an ordinary case, should

refrain from proceeding with the Sell inquiry before examining dangerousness and other bases to administer medication

forcibly. Accordingly, prior to undertaking the Sell inquiry, a

district court should make a specific determination on the

record that no other basis for forcibly administering medication is reasonably available. If a district court does not conduct a dangerousness inquiry under Harper, it should state for

the record why it is not doing so.2

[3] At the hearing in this case, the district court undertook

the Sell inquiry without making any findings regarding the

availability or appropriateness of other means forcibly to

medicate Defendant. It did so, however, only after the Government had made clear that it did not intend to seek involuntary medication on dangerousness grounds, a position that it

has reiterated on this appeal. As it emphasized in its brief to

this Court: “Although the Government offered evidence of

[Defendant’s] potential danger to others while in custody, [it]

did not seek to have [Defendant] forcibly medicated based on

dangerousness, and Dr. Wolfson shied away from [Defendant’s] dangerous conduct while in custody as a basis for

forcibly medicating him.” [Red Br. 21] 

2The Tenth Circuit has held that when evidence of dangerousness exists,

a court must inquire into dangerousness before undertaking the Sell

inquiry. See Morrison v. United States, 415 F.3d 1180, 1186 (10th Cir.

2005). However, it also has held that if there is no evidence of dangerousness to self or others, a court may proceed to the Sell inquiry without

inquiring into dangerousness. Valenzuela-Puentes, 479 F.3d at 1224-25. 

UNITED STATES v. HERNANDEZ-VASQUEZ 771
[4] Because the Government disclaimed any opportunity to

make a showing of dangerousness under Harper, we cannot

fault the district court for honoring the parties’ agreement to

proceed directly to the Sell inquiry. We emphasize, however,

that Sell inquiries are disfavored in part because the medical

opinions required for a Sell order are more multi-faceted, and

thus more subject to error, than those required for a Harper

analysis. See Sell, 539 U.S. at 182 (“For one thing, the inquiry

into whether medication is permissible, say, to render an individual nondangerous is usually more objective and manageable than the inquiry into whether medication is permissible

to render a defendant competent.”). A defendant’s liberty

interest in avoiding unnecessary involuntary medication is too

important to allow for situations in which the Court is asked

to undertake the more error-prone analysis for what may be

arbitrary or tactical reasons. Because we vacate the district

court’s order on other grounds, on remand the district court

may wish to inquire further as to the Government’s reasons

for not seeking involuntary medication on the basis of dangerousness, and should note for the record its reasons for not proceeding under Harper, before undertaking the Sell inquiry.3

II

We now move to the district court’s application of the Sell

factors. Neither the Supreme Court nor this circuit has specified the standard of review applicable to a Sell order. Two of

our sister circuits, however, have passed on this question. In

United States v. Gomes, 387 F.3d 157 (2d Cir. 2004), the Second Circuit held that the first Sell factor — the seriousness of

the underlying crime — is a legal question subject to de novo

review, and that the remaining Sell factors are factual questions that should be reviewed for clear error. Id. at 160. The

3

In light of the time elapsed since the hearing before the district court,

the Government may have adopted a different position as to Defendant’s

dangerousness. Even if it takes the position that Defendant is not dangerous, the district court should inquire into the reasons for such a position.

772 UNITED STATES v. HERNANDEZ-VASQUEZ
Tenth Circuit, in United States v. Bradley, 417 F.3d 1107

(10th Cir. 2005), held that both the first and second Sell factors are legal questions that should be reviewed de novo. See

id. at 1113. 

We agree with the Second Circuit. While the importance of

an asserted governmental interest is an issue that this Court is

well-equipped to review and evaluate for itself in the first

instance, the question of whether medicating a particular

defendant involuntarily would “significantly further” the

asserted governmental interests at stake typically involves

substantial questions of fact. Resolution of such questions is

best left to the district court and must be accorded deference

on appeal. Accordingly, we follow the Second Circuit’s

approach and review the district court’s determinations with

regard to the first Sell factor de novo, and the remaining Sell

factors for clear error. See Gomes, 387 F.3d at 160.

III

[5] Sell does not identify a requisite degree of specificity

concerning the drugs to be used for involuntary medication.

However, it does imply that a court should consider these

issues at a detailed level: “The specific kinds of drugs at issue

may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.” Id. at 181; see also Rivera-Guerrero,

426 F.3d at 1140 (discussing Sell and stating that

“[s]pecificity as to the medications to be administered is critical”); id. at 1142 (stating that the court must develop a record

that gives “attention to the type of drugs proposed, their dosage, and the expected duration of a person’s exposure”) (citation omitted). 

[6] Sell’s discussion of specificity would have little meaning if a district court were required to consider specific drugs

at a Sell hearing but then could grant the Bureau of Prisons

unfettered discretion in its medication of a defendant. While

UNITED STATES v. HERNANDEZ-VASQUEZ 773
Sell appropriately does not direct district courts to micromanage the decisions of medical professionals, reading it as

imposing no limits upon the discretion of the treating physicians would render judicial inquiry about specific drugs academic. A broad grant of discretion to medical professionals

also risks distracting such professionals from Sell’s narrow

purpose of restoring a defendant’s competency for trial. See

Sell, 539 U.S. at 185 (“The failure to focus upon trial competence could well have mattered. Whether a particular drug

will tend to sedate a defendant, interfere with communication

with counsel, prevent rapid reaction to trial developments, or

diminish the ability to express emotions are matters important

in determining the permissibility of medication to restore

competence, but not necessarily relevant when dangerousness

is primarily at issue.”) (internal citation omitted). 

Sell appears to anticipate physicians’ resistance to specific

judicial direction regarding treatments that are acceptable for

the purpose of rendering a defendant competent to stand trial:

The medical experts may find it easier to provide an

informed opinion about whether, given the risk of

side effects, particular drugs are medically appropriate and necessary to control a patient’s potentially

dangerous behavior (or to avoid serious harm to the

patient himself) than to try to balance harms and

benefits related to the more quintessentially legal

questions of trial fairness and competence. 

Id. at 182. The Court noted the “strong reasons” that often

exist for justifying forced medication on other grounds, id.,

and observed that instances in which an order for involuntary

medication would be appropriate under Sell “may be rare.” Id.

at 180. Read together, these statements indicate that the

proper approach to physicians’ understandable chafing under

the particularized judicial direction required by Sell is not to

grant physicians unlimited discretion in their efforts to restore

774 UNITED STATES v. HERNANDEZ-VASQUEZ
a defendant to competency for trial but rather, if the facts warrant, to find another legal basis for involuntary medication. 

[7] Accordingly, we hold that a Sell order must provide at

least some limitations on the medications that may be administered and the maximum dosages and duration of treatment.

At a minimum, to pass muster under Sell, the district court’s

order must identify: (1) the specific medication or range of

medications that the treating physicians are permitted to use

in their treatment of the defendant, (2) the maximum dosages

that may be administered, and (3) the duration of time that

involuntary treatment of the defendant may continue before

the treating physicians are required to report back to the court

on the defendant’s mental condition and progress. We stress

that while the court may not simply delegate unrestricted

authority to physicians, the restrictions it does impose should

be broad enough to give physicians a reasonable degree of

flexibility in responding to changes in the defendant’s condition. Moreover, the Government or the defendant may move

to alter the court’s order as the circumstances change and

more becomes known about the defendant’s response to the

medication. 

[8] Turning to the facts of this case, we note that the order

at issue provides only that “[t]he method of treatment and

type of medication to be used shall be at the discretion of the

treating medical professionals within the Bureau of Prisons.”

While the record reflects that during the Sell hearing the district court stated its expectation that the Government would

pursue an agreed-upon course of treatment,4 the court’s writ4The district court commented as follows in connection with its findings

under the second Sell factor: 

[A]s I indicated earlier, Dr. Wolfson’s approach, to me, appears

eminently reasonable and appropriate. To start with a secondgeneration medication, to see if there is improvement, if there is

insight on the part of Mr. Hernandez, and then to gradually — or

to at that point take inventory and see whether a different type of

UNITED STATES v. HERNANDEZ-VASQUEZ 775
ten order does not limit meaningfully the discretion delegated

to the Government’s physicians. The fact that the order

requires the physicians to report back to the Court, while

appropriate, is insufficient. While Sell does not require that a

court micromanage all aspects of a defendant’s treatment, nor

does it allow such non-specific delegation of authority as to

a treatment plan. Accordingly, we vacate and remand. 

IV

Because we vacate the district court’s order for lack of the

requisite specificity, we need not reach Defendant’s argument

that the Government’s interest in prosecuting him under

§ 1326 was insufficient to justify involuntary medication. See

Sell, 539 U.S. at 180. However, because the issue is likely to

arise on remand, we offer some guidance to the district court

regarding the proper framework within which to analyze this

question. See United States v. Brooke, 4 F.3d 1480, 1488 (9th

Cir. 1993). 

The Supreme Court has provided only limited guidance as

to what constitutes a serious crime for the purpose of a finding of an important government interest under the first prong

of Sell: 

The Government’s interest in bringing to trial an

individual accused of a serious crime is important.

That is so whether the offense is a serious crime

against the person or a serious crime against property. In both instances the Government seeks to promedication is necessary, or whether the medication prescribed by

Dr. Wolfson is, in fact, working. 

If it is not, I would then leave it to his discretion to determine

in what manner and whether to more aggressively treat Mr. Hernandez, perhaps through the intramuscular approach, the injection approach, with the other more aggressive medications. 

776 UNITED STATES v. HERNANDEZ-VASQUEZ
tect through application of the criminal law the basic

need for security. 

Sell, 539 U.S. at 180. 

No circuit court has interpreted Sell as allowing a categorical analysis of a crime’s seriousness, such as a distinction

between crimes malum in se and malum prohibitum. Similarly, we read Sell’s reference to crimes against property and

the person as describing only a subset of the crimes serious

enough to support an important government interest in prosecution. A contrary reading would ignore the breadth of the

Supreme Court’s concern that the Government be able to

bring an accused to trial, which it described as “fundamental

to a scheme of ordered liberty and prerequisite to social justice and peace.” Id. at 180 (citations and quotation marks

omitted). Sell does not suggest that non-property, non-violent

crimes, such as those arising under federal drug or immigration laws, are not fundamental to a scheme of ordered liberty.

Instead, common to each of the appellate decisions interpreting Sell is a recognition that courts must consider the facts of

individual cases in evaluating the government’s interest in

prosecution. Such relevant circumstances include the time a

defendant has served while awaiting trial and the possibility

of future civil confinement. See id. at 180. 

Other circuit courts have refrained from specifying a length

of sentence that renders a crime serious. The Fourth Circuit

has held that “it is appropriate to focus on the maximum penalty authorized by statute in determining if a crime is ‘serious’

for involuntary medication purposes.” United States v. Evans,

404 F.3d 227, 237 (4th Cir. 2005). It reached this conclusion

on the basis of the Supreme Court’s Sixth Amendment jurisprudence with respect to the right to trial by jury.5

 The Fourth

5

“Although the Court in Sell offered no guidance on how to determine

the seriousness of an offense, the Supreme Court has described ‘serious’

crimes in other contexts. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct.

UNITED STATES v. HERNANDEZ-VASQUEZ 777
Circuit rejected the argument that it should focus on a defendant’s probable guideline sentencing range, concluding that

such an approach would be unworkable because at the involuntary medication “stage in the proceedings, there is no way

of accurately predicting what that range will be.” Id. at 238.

The Fourth Circuit did not specify what maximum punishment would render a crime “serious,” but decided that it is

“beyond dispute that the Government does have an important

interest in trying a defendant charged with a felony carrying

a maximum punishment of 10 years imprisonment.” Id. The

Second and Tenth Circuits also have refrained from establishing a generic test for seriousness, but, in contrast to the Fourth

Circuit, have not rejected the sentencing guidelines as a guide

to the seriousness of a crime. See United States v. ValenzuelaPuentes, 479 F.3d 1220, 1226 (10th Cir. 2007) (reasoning that

“[w]hether a crime is ‘serious’ relates to the possible penalty

the defendant faces if convicted, as well as the nature or effect

of the underlying conduct for which he was charged,” and

analyzing seriousness in light of both the statutory maximum

and the likely guideline sentence); Gomes, 387 F.3d at 160

(describing “the seriousness of the crime and [the defendant’s] perceived dangerousness to society [as] evident from

the substantial sentence [the defendant] faces if convicted”

and noting that the defendant “faces a possible statutory minimum of fifteen years’ imprisonment”), cert. denied, 543 U.S.

1128 (2005). 

Although the sentencing guidelines no longer are mandatory, they are the best available predictor of the length of a

1444, 20 L.Ed.2d 491 (1968), for example, the Supreme Court observed

that the Sixth Amendment’s right to trial by jury exists only in ‘serious’

criminal cases. Id. at 158, 88 S.Ct. 1444. It admonished that “the penalty

authorized for a particular crime is of major relevance in determining

whether it is serious.” Id. at 159, 88 S.Ct. 1444 (emphasis added). In fact,

it explicitly rejected [the] argument that the proper focus of whether a

crime is ‘serious’ for purposes of the Sixth Amendment right to trial is the

actual ‘length of punishment.’ Id. at 162 n.35, 88 S.Ct. 1444.” Evans, 404

F.3d at 237 (4th Cir. 2004) (emphasis in original). 

778 UNITED STATES v. HERNANDEZ-VASQUEZ
defendant’s incarceration. While the statutory maximum may

be more readily ascertainable, any difficulty in estimating the

likely guideline range exactly is an insufficient reason to

ignore Sell’s direction that courts should consider the specific

circumstances of individual defendants in determining the

seriousness of a crime. Accordingly, we disagree with the

Fourth Circuit and conclude that the likely guideline range is

the appropriate starting point for the analysis of a crime’s seriousness. It is not, however, the only factor that should be considered. Because the sentencing guidelines do not reflect the

full universe of relevant circumstances, two indictments alleging crimes with equal likely guideline ranges will not always

be equally serious within the meaning of Sell. 

In the instant case, the district court did not indicate in its

order the basis upon which it concluded that there is an

important government interest at stake in prosecuting Defendant. However, it did state at the Sell hearing that it had considered both the current charge against Defendant and

Defendant’s criminal history. Specifically, the district court

indicated that the Government’s interest in prosecuting

Defendant for a § 1326 violation — when taken in conjunction with other relevant factors such as Defendant’s prior

offenses, the predatory nature of those offenses, and the closeness in time of the prior offenses to the current prosecution —

was sufficiently important to justify involuntary medication

for the purpose of rendering Defendant competent for trial. In

performing this fact-intensive inquiry, the district court likely

approximated the analysis it would have performed had it

used the sentencing guidelines as its starting point, and its

ultimate conclusion was sound. Accordingly, we approve of

the district court’s conclusion in this respect and hold that, at

least under some circumstances, a violation of § 1326 may

constitute a “serious” crime sufficient to justify involuntary

medication under Sell. We also agree with the district court

that, at the time of the Sell hearing, this case presented such

a circumstance. However, we recognize that in light of the

additional time Defendant has served in custody during the

UNITED STATES v. HERNANDEZ-VASQUEZ 779
pendency of this appeal, at least some of the relevant facts initially presented to the district court with respect to seriousness

may require reevaluation. Whether this is the case, and what

the outcome of such reevaluation should be, are questions we

leave for the district court to address on remand. 

We also note the Government’s suggestion to the district

court that “dangerousness can be a factor . . . in looking at

whether [Defendant] should be forcibly medicated [under

Sell].” The district court did not accept or reject the Government’s position explicitly, but rather concluded that it could

consider dangerousness in the context of how a prior criminal

history would affect the applicable guideline sentencing

range. On remand, the district court should remain mindful of

the Supreme Court’s distinction between the purposes and

requirements of involuntary medication to restore competency

and involuntary medication to reduce dangerousness. It

should take care to separate the Sell inquiry from the Harper

dangerousness inquiry and not allow the inquiries to collapse

into each other. 

V

Based upon the foregoing discussion, we vacate the district

court’s order permitting the Government to medicate Defendant involuntarily to render him competent for trial and

remand for further proceedings consistent with this opinion.6

VACATED AND REMANDED WITH INSTRUCTIONS.

6We do not reach Defendant’s argument that the Government did not

show that the anti-psychotic drugs it would use are likely to render Defendant competent to stand trial or his argument that such drugs are inappropriate given his medical history. 

780 UNITED STATES v. HERNANDEZ-VASQUEZ