United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2274

___________________________

United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Shawn Allan Mackey,

lllllllllllllllllllll Defendant - Appellant.

____________

 Appeal from United States District Court 

for the District of South Dakota - Rapid City

____________

 Submitted: December 14, 2012

 Filed: June 10, 2013

____________

Before LOKEN, BRIGHT, and COLLOTON, Circuit Judges.

____________

COLLOTON, Circuit Judge.

Shawn Mackey was indicted for failing to register as a sex offender, in violation

of 18 U.S.C. § 2250(a). After the parties stipulated that Mackey was incompetent to

understand the proceedings against him or to assist in his own defense, see 18 U.S.C.

§ 4241, the government moved to medicate Mackey involuntarily to restore his

competency to stand trial. Applying the criteria set forth in Sell v. United States, 539
U.S. 166 (2003), the district court1

 granted the motion. Mackey appeals, and we

affirm.

I.

On June 15, 2010, a grand jury charged Mackey with one count of failing to

register as a sex offender, as required under the Sex Offender Registration and

Notification Act (“SORNA”). The district court ordered Mackey detained pending

trial, and later granted Mackey’s motion for a mental evaluation, pursuant to 18

U.S.C. §§ 4241(a) and 4242(a). 

Mackey was evaluated at the Federal Detention Center in Seattle, Washington. 

Mackey refused to participate in the competency assessment process, so mental health

professionals were unable to provide an opinion concerning his competency to stand

trial. Accepting a stipulation of the parties, however, the district court later found

after a hearing that Mackey was suffering from a mental disease or defect that

rendered him mentally incompetent to understand the proceedings against him or to

assist in his defense. See 18 U.S.C. § 4241. In August 2011, the court ordered

Mackey committed to the custody of the Attorney General for further evaluation and

treatment at a suitable federal medical facility, with the goal of determining whether

there is a substantial probability that Mackey would attain the capacity to stand trial

in the foreseeable future. See id. § 4241(d)(1). 

In March 2012, after receipt of a forensic mental health evaluation prepared at

the United States Medical Center for Federal Prisoners in Springfield, Missouri, the

government moved the court to conduct a Sell hearing to determine whether Mackey

should be medicated involuntarily. The district court heard testimony from two

1

The Honorable Jeffrey L. Viken, United States District Judge for the District

of South Dakota.

-2-
doctors at the Medical Center—Dr. Christina Pietz, Ph.D., ABPP, Staff Psychologist,

and Dr. Robert Sarrazin, M.D., Chief of Psychiatry. Dr. Pietz is a board-certified

forensic psychologist. In more than twenty years at the United States Medical Center,

Dr. Pietz’s primary responsibility has been to complete court-referred competency and

sanity evaluations, civil commitments, and risk assessments. She has treated a number

of patients who suffer from delusional disorders, and testified over three hundred

times in federal court regarding patients’ mental health or competency to stand trial. 

Dr. Sarrazin is board certified in general psychiatry, forensic psychiatry, and

psychosomatic medicine. As Chief of Psychiatry at the Medical Center, he treats

patients with psychotic disorders such as schizophrenia, delusional disorder, and

psychotic disorder not otherwise specified. Approximately one hundred patients at

the Medical Center are involuntarily medicated at any given time. 

Dr. Pietz testified that she tried to interview Mackey on seven occasions

between December 1, 2011, and February 7, 2012, but that Mackey refused to talk to

her on almost all of those occasions, so she was unable to have extensive interviews

with him. Dr. Pietz was aware from the forensic evaluation in Seattle that Mackey

may suffer from a mental illness, and she was aware that the district court had found

Mackey incompetent to stand trial. She testified: 

[Mackey] made a number of comments that suggested he was suffering

from a mental illness. He indicated that he owns Alaska . . . . And

another time he reported that his mother owned Alaska. . . . That’s a

symptom of a mental illness; it’s a delusion, a delusion of

grandiosity . . . . Given his presentation, the comments he made, I felt

that even though I had [little] interaction with him, his presentation was

consistent with someone suffering from a mental illness, a psychotic

disorder. 

Using terminology from a manual of mental disorders, Dr. Pietz concluded that

Mackey suffers from a “psychotic disorder not otherwise specified.” See Diagnostic

-3-
and Statistical Manual of Mental Disorders 343 (Am. Psychiatric Ass’n ed., 4th ed.

2000). 

Dr. Sarrazin interviewed Mackey in February 2012. Mackey came out of his

cell and “spent some time” talking with the doctor. Dr. Sarrazin testified it was “quite

clear from [his] interview with [Mackey] that he’s delusional, disorganized in his

thinking,” and that Mackey made clear that he did not want to take medication. Dr.

Sarrazin opined that administration of antipsychotic medication would be necessary

to restore Mackey’s competence to stand trial. He saw a substantial probability that

the medication he recommended would render Mackey competent to stand trial, and

that side effects of the medication would not impair Mackey’s competency. Dr.

Sarrazin said that medication would lead to marked improvement in other aspects of

Mackey’s life, including better personal hygiene and the ability to interact with peers. 

Both Dr. Sarrazin and Dr. Pietz testified that no less intrusive treatments are available

to assist Mackey in regaining competency.

Following the hearing, the district court granted the government’s motion to

medicate Mackey involuntarily, if necessary. The court provided that “[i]f Mr.

Mackey does not take the recommended medication voluntarily and the medical staff

concludes involuntary administration is clinically appropriate, involuntary

administration of anti-psychotic medication is ordered.” 

The district court observed that both experts diagnosed Mackey with a

“psychotic disorder not otherwise specified,” and noted that he suffers from delusions

of grandeur. The court concluded that there was an “important governmental interest

in this case, . . . both with regard to the public policy of the SORNA statute, and in

Mr. Mackey’s particular case.” There was clear and convincing evidence, according

to the court, “that the involuntary administration of medication, if necessary, will

further the interest of restoring Mr. Mackey to competency” to stand trial. The court

also found that involuntary medication is appropriate if necessary, and that there are

-4-
no less intrusive treatments available. Finally, the district court determined that “the

administration of the drugs is medically appropriate and in Mr. Mackey’s best medical

interests in light of his medical condition,” and that any side effects of the medication

would not damage Mackey or interfere with his competency to stand trial. 

Mackey timely appealed the district court’s order. We have jurisdiction under

the collateral order doctrine. Sell, 539 U.S. at 176-77. 

II.

In Sell, the Supreme Court concluded that the government may administer

antipsychotic drugs involuntarily to render a mentally ill criminal defendant

competent to stand trial for serious, but nonviolent, crimes. To order the

administration of drugs, a court must find: (1) that an important governmental interest

is at stake; (2) that involuntary medication will significantly further that governmental

interest; (3) that involuntary medication is necessary to further that interest; and

(4) that administration of the drugs is medically appropriate. Id. at 180-81. The

district court in this case made each of the required findings. We review de novo a

court’s legal determination that important governmental interests are at stake. United

States v. Fazio, 599 F.3d 835, 840 (8th Cir. 2010). The government must prove the

other three elements by clear and convincing evidence, and we review the district

court’s findings for clear error. Id. at 840 & n.2. 

On the first element, it is undisputed that the government has an important

interest in bringing to trial an individual accused of a serious crime, Sell, 539 U.S. at

180, but Mackey argues that his offense was not serious, because it is merely a “nonviolent, status offense.” In determining the seriousness of the offense, we agree with

those circuits that place the greatest weight on the maximum penalty authorized by

statute, see United States v. Green, 532 F.3d 538, 546-49 & n.8 (6th Cir. 2008);

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

-5-
404 F.3d 227, 238 (4th Cir. 2005), as it is the most relevant objective indication of the

seriousness with which society regards the offense. Blanton v. City of North Las

Vegas, 489 U.S. 538, 541 (1989). Congress established a maximum term of ten years’

imprisonment for the offense of failure to register under SORNA, 18 U.S.C.

§ 2250(a), and that authorized punishment “is ‘serious’ under any reasonable

standard.” Evans, 404 F.3d at 238. 

We disagree with Mackey’s contention that so-called “status” offenses are not

“serious” for purposes of Sell, or that the nature of the offense is a “special

circumstance” that lessens the governmental interest in prosecution. See Sell, 539

U.S. at 180. SORNA is premised on a legislative determination that sex offenders

who are not properly registered present a serious risk to the safety of the community. 

The registration provision was part of “a broader statutory scheme enacted to address

deficiencies in prior law that had enabled sex offenders to slip through the cracks.” 

Carr v. United States, 130 S. Ct. 2229, 2240 (2010). Even where the commission of

an offense does not itself harm others directly, society may have a strong interest in

prosecuting the violation and imposing punishment. See Fazio, 599 F.3d at 840

(holding that the “status” offense of firearm possession by a felon is a “serious”

crime); Green, 532 F.3d at 549 (holding that drug trafficking is “serious” even when

there is no identifiable victim); United States v. Valenzuela-Puentes, 479 F.3d 1220,

1226-27 (10th Cir. 2007) (holding that unlawful reentry to the United States is a

“serious crime”); United States v. Cuevas-Ramirez, 501 F. App’x 814, 820 (10th Cir.

2012) (rejecting argument that “status” offense of illegal reentry is not “serious.”). 

Mackey contends that other special circumstances lessen the importance of the

governmental interests in his case. He argues that even if medication renders him

competent to stand trial, he is likely to be found not guilty by reason of insanity and

civilly committed, such that the government’s interest in confinement will be satisfied. 

Civil commitment, however, is not a substitute for a criminal trial, and the potential

for that type of confinement does not totally undermine the government’s interest in

-6-
prosecution. Sell, 539 U.S. at 180. In this case, moreover, the record does not

demonstrate a strong likelihood of civil commitment. That Mackey was delusional

at the time of his arrest does not necessarily mean that he could mount a successful

insanity defense; at this time, Mackey has not even noticed an intent to pursue such

a defense. See Fed. R. Crim. P. 12.2(a). Long-term civil commitment could be

justified, after a finding of insanity, only on a showing that Mackey presents “a

substantial risk of bodily injury to another person or serious damage to property of

another.” 18 U.S.C. § 4246(d)(2). Mackey does not concede that this standard would

be satisfied. Given the uncertainty of civil commitment and the government’s interest

in timely prosecution, the interest in prosecuting Mackey remains strong.

Nor are we convinced that the governmental interest in prosecution is

substantially weakened by the amount of time that Mackey has been detained pending

trial. Given the advisory nature of the sentencing guidelines, see United States v.

Booker, 543 U.S. 220, 258-65 (2005), and the broad discretion of district courts to

sentence within the statutory range based on their personal sentencing philosophies,

see Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Bueno, 549 F.3d

1176, 1182 (8th Cir. 2008), we cannot blithely assume that Mackey’s proposed

advisory guideline range of 24-30 months’ imprisonment is likely to be the ultimate

sentence imposed if Mackey were convicted. At this stage, it is impossible to know

whether a sentencing court would conclude that a term closer to the statutory

maximum of ten years’ imprisonment is warranted. Cf. United States v. Nicklas, 623

F.3d 1175, 1179 n.5 (8th Cir. 2010) (“We decline to rely heavily upon a ‘sentencing

proceeding . . . [conducted] without the benefit of a presentence report and the facts

necessary to conduct such a proceeding.’”) (quoting United States White, 620 F.3d

401, 428-29 (4th Cir. 2010) (Niemeyer, J., dissenting)). And a term of imprisonment

is not the only sanction available in a criminal prosecution. A criminal sentence also

must include a term of supervised release of at least five years and extending up to the

rest of Mackey’s life. See 18 U.S.C. § 3583(k). This sanction—not available in a

civil commitment proceeding—furthers the government’s interest in monitoring sex

-7-
offenders who have demonstrated an unwillingness to comply with the registration

requirements of SORNA. In any event, the fact of pretrial confinement that may

approach the likely term of imprisonment in a criminal case “does not totally

undermine . . . the strength of the need for prosecution.” Sell, 539 U.S. at 180. 

Mackey also complains that the district court improperly considered his

potential dangerousness when it remarked that SORNA enables “people in the local

community [to] protect themselves and assure community safety in working with law

enforcement to know the identity and whereabouts of sex offenders such as Mr.

Mackey.” This objection misunderstands the Sell inquiry into governmental interest. 

To be sure, the Court in Sell, id. at 181-82, explained that the government sometimes

uses involuntary medication to pursue interests independent of bringing an accused

to trial; one such interest is to reduce danger that an inmate poses to himself or others

while incarcerated. See Washington v. Harper, 494 U.S. 210, 225-26 (1990). But the

district court here did not rely on an interest in addressing any danger that Mackey

posed to himself or others while confined. The court, rather, focused on the

government’s interest in protecting the public through prosecution of an accused who

posed a danger to the community by failing to comply with the registration

requirements of SORNA. This sort of dangerousness is a proper consideration when

determining the importance of the governmental interest under Sell. See United States

v. Ruiz-Gaxiola, 623 F.3d 684, 694 n.6 (9th Cir. 2010); United States v. Gomes, 387

F.3d 157, 160 (2d Cir. 2004).

On the second Sell element, Mackey argues that the district court clearly erred

in finding that it was satisfied. He contends that there was insufficient evidence to

conclude that antipsychotic medication is substantially likely to restore Mackey’s

competency to stand trial and substantially unlikely to have significant side effects. 

Mackey believes that his medical condition is an unusual “grandiose delusional

disorder,” and that the experts were not equipped to address how medication would

affect this condition. Mackey relies on United States v. White, 620 F.3d 401, 421 (4th

-8-
Cir. 2010), where a divided panel concluded that the record did not support a finding

that involuntary medication was likely to be effective in treating a woman with

delusional disorder of the grandiose type.2

We find no clear error in the district court’s finding that involuntary medication

would significantly further the government’s interest in prosecution of this case. The

district court accepted the testimony of Dr. Pietz that Mackey “will be restored to

competency” with proper medication, and the opinion of Dr. Sarrazin that there is a

“substantial probability that [Mackey] would be restored to competency with

involuntary antipsychotic medication.” Dr. Sarrazin also opined that the “nuisance

side effects” of such medication—which could include sedation, light-headedness, and

dry mouth—usually dissipate quickly and “would not impair [Mackey’s] ability to be

competent.” 

Mackey’s counsel questioned both experts about the decision in White. Dr.

Pietz disagreed with the proposition that “people [who] suffer from delusional

disorders, particularly of the grandiosity type, rarely respond to medication,” saying

that she has worked with persons suffering from delusional orders who have

responded favorably to medication and been restored to competency. Dr. Sarrazin

disagreed with the suggestion that “delusional disorders . . . often do not respond to

medication or often have poor response results from medication.” Based on his

experience and review of literature, he opined that “psychotic illnesses do respond to

antipsychotics,” and that such medications “would be the treatment of choice for

delusional disorders.” The expert in White, by contrast, was skilled in treating

schizophrenia, not delusional disorders; she had never treated a patient with the

defendant’s delusional disorder; she conceded that she really did not know how the

2

Mackey also asserts that his “unique medical condition” lessens the

governmental interest in prosecution for purpose of the first Sell element, but the

likelihood of successful treatment is properly addressed under the second element. 

539 U.S. at 181.

-9-
female defendant would respond to antipsychotic medications; and she relied heavily

on a study with only male subjects, despite literature suggesting that men and women

often react differently to medications. White, 620 F.3d at 421. Mackey has not

demonstrated that it was impermissible for the district court to credit the more

persuasive testimony of the experts in this case.

Mackey does not challenge the district court’s finding on the third Sell factor. 

On the fourth, he contends that administration of antipsychotic drugs is not medically

appropriate. Again, however, the district court reasonably credited the expert

testimony. Dr. Sarrazin, who would be the prescribing physician, specified the

medications that would be employed, and explained that they are used daily in the

United States to treat psychotic illness. He testified that most of the anticipated side

effects are nuisances that usually end within three or four days. The medical facility

also would monitor the patient for increased lipids or increased glucose that might

result, and mitigate these effects as necessary. More generally, Dr. Sarrazin testified

that the medication not only would restore Mackey’s competency to stand trial, but

would allow the patient—who was not showering, recreating, or communicating with

staff—to “have a better quality of life and to kind of move forward.” Mackey

presented no countervailing evidence. It was not clear error for the court to find that

the proposed treatment plan is medically appropriate and in Mackey’s best medical

interests.

* * *

The order of the district court is affirmed.

______________________________

-10-