# 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 re gister as a sex offender, in violation of 18 U.S.C. § 2250(a). After the parties s tipulated 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 , 539U.S. 166 (2003), the district court 1 granted the motion. Mackey appeals, and we affirm.

I.

On June 15, 2010, a grand jury charge d Mackey with one count of failing to register as a sex offender, as require d under the Sex Offender Registration and Notification Act (“SORNA”). The districtcourt 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 De tention Center in Seattle, Washington. Mackey refused to participate in the compet ency 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 sufferi ng from a mental disease or defect that rendered him mentally incompetent to unde rstand 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 Atto rney General for further evaluation and treatment at a suitable federal medical fac ility, with the goal of determining whether there is a substantial probability that Mackey would attain the cap acity 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 Federa l 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 St ates District Judge for the District of South Dakota.
-2-doctors at the Medical Center—Dr. Chris tina Pietz, Ph.D., ABPP, Staff Psychologist, and Dr. Robert Sarrazin, M.D., Chief of Ps ychiatry. 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 ri sk assessments. She has treated a number of patients who suffer from delusional diso rders, and testified over three hundred times in federal court regardi ng patients’ mental health or competency to stand trial. Dr. Sarrazin is board certified in general psychiatry, forensic psychiatry, and psychosomatic medicine. As Chief of Psyc hiatry at the Medical Center, he treats patients with psychotic disorders such as schizophrenia, delusional disorder, and psychotic disorder not otherwise specifi ed. 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 sh e was unable to have extensive interviews with him. Dr. Pietz was aware from the fo rensic evaluation in Seattle that Mackey may suffer from a mental illness, and she wa s 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 moth er owned Alaska. . . . That’s a symptom of a mental illness; it’s a delusion, a delusion of grandiosity . . . . Given his presen tation, the comments he made, I felt that even though I had [little] interac tion with him, his presentation was consistent with some one 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 di sorder 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] thathe’s delusional, disorganized in his thinking,” and that Mackey madeclear that he did not want to take medication. Dr. Sarrazin opined that administration of an tipsychotic medication would be necessary to restore Mackey’s competen ce 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 th at 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 medi cation 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 conc luded that there was an “important governmental interest in this case, . . . both with regard to th e public policy of the SORNA statute, and in Mr. Mackey’s particular cas e.” There was clear and c onvincing evidence, according to the court, “that the involuntary admini stration 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 appr opriate 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 re nder 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 convinci ng 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 i ndividual accused of a serious crime, Sell , 539 U.S. at 180, but Mackey argues that his offense wa s 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 wei ght 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 estab lished 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 th at 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 legi slative determination that sex offenders who are not properly registered present a seri ous 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 dir ectly, 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 unlawfu l 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” offens e of illegal reentry is not “serious.”).

Mackey contends that other special ci rcumstances lessen th e importance of the governmental interests in his case. He ar gues 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 to tally 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 ha s 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, onl y 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 doe s not concede that this standard would be satisfied. Given the uncertainty of ci vil 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 tim e 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 base d 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 dec line to rely heavily upon a ‘sentencing proceeding . . . [conducted] without the bene fit 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) (Nie meyer, 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 unw illingness to comply with the registration requirements of SORNA. In any event, the fact of pretrial confinement that may approach the likely term of imprisonmen t 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 th at SORNA enables “p eople in the local community [to] protect themselves and assu re 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 inte rests independent of bringing an accused to trial; one such interest is to reduce dange r 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 in terest 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 th e district court clearly erred in finding that it was satisfied. He conte nds 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 in terest 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 th e opinion of Dr. Sarrazin that there is a “substantial probability that [Mackey] w ould be restored to competency with involuntary antipsychotic medication.” Dr. Sarrazin also opined that the “nuisance side effects” of such medication—which c ould 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 su ffering 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 lite rature, he opined that “psy chotic 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; sh e had never treated a patient with the defendant’s delusional disorder; she conced ed 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 prope rly addressed under the second element. 539 U.S. at 181.
-9-female defendant would respond to antipsy chotic 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 distri ct 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 withinthree or four days. The medical facility also would monitor the patient for increas ed 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.

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