PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 2 0
- 4537

UNITED STATES OF AMERICA , P laintiff

- Appellee ,

v. CHRISTOPHER LEWIS TUCKER , Defendant

- Appellant

.

No. 2 1
- 4166

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. CHRISTOPHER LEWIS TUCKER , Defendant

- Appellant.

No. 2 2
- 4025

UNITED STATES OF AMERICA , Plaintiff

- Appellee , USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 1 of 182 v. CHRISTOPHER LEWIS TUCKER , Defendant

- Appellant.

No. 2 2
- 4026

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. CHRISTOPHER LEWIS TUCKER , Defendant

- Appellant.
Appeal s from the United States District Court for the Middle District of North Carolina , at Greensboro

. Thomas D. Schroeder , Chief District Judge. ( 1:17

- cr - 00221

- TDS

- 1 )
Argued : January 27 , 202 3 D ecided: February 24, 2023

Before GREGORY, Chief Judge , and WILKINSON and HEYTENS , Circuit Judges.

Affirmed by published opinion

. Judge Heytens wrote the opinion, in which Chief Jud ge Gregory and Judge Wilkinson joined

.

ARGUED: Eric J. Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, Jaclyn L. Tarlton, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, N orth Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Eric L. Iverson, Assistant United States USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 2 of 183 Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 3 of 184 TOBY HEYTENS, Circuit Judge: This case involv es a criminal defendant who has been declared mentally incompetent to stand trial and languished in pretrial custody for more than five years . The district court found that involuntary medication is substantially likely to render the defendant competent an d ordered a final extension of confinement to permit that medication to work. We affirm.
I. The Fifth Amendment declares no person “ shall be .

. . deprived of .

. . liberty .

. . without due process of law.” U.S. Const. amend. V. The issues in this case concern several overlapping strands of that guarantee.
A criminal prosecution may not proceed unless the defendant is competent. S ee P ate v. Robinson , 383 U.S. 375, 378 (1966)

. For constitutional purposes, t he test “is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual un derstanding of the proceedings against him.” Godinez v. Moran , 509 U.S. 389, 396 (1993) (quotation marks omitted). A person who is not competent may n ot be tried for

— or plead guilty to

— a crime.
See i d

. at 391. The Due Process Clause also limits the government’s efforts to restore a person’s competency. On the one hand, “t he Constitution permits the [g] overnment involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious crim inal charges in order to render that defen dant competent to stand trial.” Sell v. United States , 539 U.S. 166, 179 (2003). But b ecause doing so implicates “ a significant constitutionally protected USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 4 of 185 liberty interest,” the Due Process Clause imposes restrictions as well

. Id. at 178 (quotation marks o mitted). Under Sell ’s four

- factor test, involuntary medication may be ordered “only” if: (1) “important government al interests are at stake”; (2) “involuntary medication will significantly further those . . . interests”; (3) “involuntary medication is necessary to further those interests”; and (4) “ administration of the drugs is medically appropriate .” Id.
at 179 –81 (emphasis removed). “The government must establish each element of this test by clear and convincing evidence.” United States v. Chatmon , 718 F.3d 369, 374 (4th Cir. 2013). Similarly, the Due Process Clause allows civil commitment to restore a defendant’s competency but “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana , 406 U.S. 715, 73 8 (1972). For that reason, a person charged “with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Id. “Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” Id. Congress has enacted procedures for implementing Jackson ’s requirements. At any time before sentencing, a court may hold a hearing “to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a). I f the court finds by a preponderance of the evidence that the defendant “ is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 5 of 186 defendant to the custody of the Attorney General,” who “shall hospitalize the defendant for treatment in a suitable facility.” § 4241(d). Consistent with the Supreme Court’s decision in Jackson , however, such period s of hospitalization must be limited. The defendant may initially be hospitalized “for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.” § 4241(d)(1). T he defendant may then be hospitalized “for an additional reasonable period of time until” the “earlier” of two events. § 4241(d)(2). The first is if the defendant’s “mental condition is so improved that trial may proceed,” so long as “the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward .” § 4241(d)(2)(A). The second is if all “pending charges .

. . are disposed of according to law.” § 4241(d)(2)(B).
II. Christopher Lewis Tucker was arrested almost six years ago and has been in federal custody ever since. Under the controlling indictment, Tucker is charged wit h two counts of attempting to persuade people he believed to be minors to produce child pornography ; one count of transport ing or ship ping child pornography ; one count of receiving child pornography ; and one count of possessing a firearm while being addicted to a controlled substance. The first two counts carry sentences of “not less than 15 years nor more than 30 years.” 18 U.S.C. § 2251(e). The other two child pornography offenses authorize sentences of “not less than 5 years and not more than 20 years,” § 2252A(b)(1), with the firearms USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 6 of 187 offense having a potential sentence of “no t more than 15 years,” § 924(a)( 8 )

. Following any incarceration, the four child pornography offenses would each require a supervised release term of “not less than 5” years and up to life

. § 3583(k)

. In August 2017

— t hree months after Tucker was arrested

— his lawyer moved to have him declared mentally incompetent. In September 2017, the district court found Tucker incompetent and committed him to the custody of the Attorney General. Tucker spent the next seven months being evaluated at correctional institutions in Chicago and San Diego

. In May 2018, the district court held another hearing, at which it recommitted Tucker to the custody of the Attorney General for a restoration of competency. At no point before or during that hearing did T ucker’s lawyer “object to the length of [Tucker’s] evaluation” or “challenge the court’s authority to order a subsequent period.” JA 954 n.4. To the contrary , defense counsel “agreed with .

. . the court’s intention to commit Tucker to the custody of the A ttorney General for restoration of competency.”
JA 954. In June 2018, Tucker was admitted to the Federal Medical Center in Butner, North Carolina. Just over five months later, a forensic psychologist submitted a report concluding Tucker was still not compe tent to stand trial but there was “a substantial likelihood

. . . Tucker [could] be restored to competency in the foreseeable future with [a] combination

o f ” medication and individualized treatment. JA 955. The forensic psychologist thus “requested an add itional period of evaluation and treatment to continue restoration efforts.”
JA 956. Once again, Tucker’s counsel “did not object,” and the district court ordered “that Tucker’s period of restoration of competency be extended.” JA 956. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 7 of 188 In May 2019, the forensic psychologist submitted another report detailing the efforts to restore Tucker’s competency. T hat report described Tucker as only intermittently compliant with his medication regimen but stated that his symptoms “responded well to medication treatment with antipsychotics and antidepressants in the past” and there was “substantial probability that his symptoms would be further attenuated with ongoing medication treatment.” JA 957. The report said Tucker was “right at the threshold of competency, and likely would have been restored had he complied with medication
treatment.” JA 958. The report recommended another period of evaluation and treatment, as well as an order permitting the involuntary administration of medication should Tucke r continue to resist taking it. The government requested an involuntary medication order and the district court set a hearing. Before that hearing could take place, however, Tucker’s mother hired a new lawyer to represent Tucker, who requested a delay. The district court reset the hearing for August 30, 2019. Before the hearing, the government moved for a further extension of the time for evaluation and treatment and withdrew its request for an involuntary medication order. On August 12, 2019, Tucker filed a written objection to th at motion, arguing that, absent a request for involuntary medication, there was no basis for his continued detention. Two days later, the government renewed its request for an involuntary medication order, citing a report fro m the medical facility’s chief psychiatrist that Tucker had “firmly and unequivocally told us .

. . he was stopping all of his psychiatric medication s going forward” and was insisting that he was “competent to stand trial.” JA 961. The hearing was delayed USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 8 of 189 again after Tucker had “a physical altercation with another inmate , ” and his attorneys requested a continuance. JA 962. The district court ultimately held two hearings in September 2019, at which three medical professionals testified, two for the governmen t and one for Tucker

. On October 22, 2019, the district court issued a 49

- page opinion finding “the Government ha [d] shown, by clear and convincing evidence, that involuntary medication under Sell is appropriate and that an additional [four

- month] period t o restore Tucker to competency through mental health treatment is warranted.” JA 545

– 46. Tucker filed a notice of appeal and asked the district court to stay its order pending that appeal. The district court granted Tucker’s request , staying its order “unt il such time as Defendant’s appeal to the Fourth Circuit is resolved.” JA 548. Almost two years later , this Court granted the government’s motion to remand the case to the district court for further consideration of “whether the administration of drugs, as currently prescribed, [wa]s substantially likely to render Tucker competent to stand trial.” United States v. Tucker , No. 19

- 4805 , 2021 WL 4352382, at *2 (4th Cir. 2021) (per curiam) . This Court’s mandate issued on October 18, 2021. After the case was remanded, Tucker moved to dismiss the indictment and argu ed for his immediate release. The district court conducted another hearing, at which it again heard testimony from the chief psychiatrist. Less than a month later, t he court issued a 42

- page opinion concluding an involuntary medication order was appropriate and granting the government “four months within which to” restore Tucker’s competency. JA 987. The USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 9 of 1810 district court also stay ed its involuntary medication order “until such time as [Tuck er’s] appeal to the Fourth Circuit is resolved.” JA 987. Tucker appeals anew, challenging both the involuntary medication order and his continued detention . We have appellate jurisdiction to consider both under 28 U.S.C. § 1291. See Sell , 539 U.S. at 175

– 77 (appeals from involuntary medication orders fall within the collateral order doctrine); United States v. Curbow , 16 F.4th 92, 115 (4th Cir. 2021) (appeals from commitment order entered under 18 U.S.C. § 4241(d)(2) also fall within the collateral or der doctrine). 1
II I.
O ur role is confined by the applicable standards of appellate review. The first Sell factor

— whether “ important government al interests are at stake,” 539 U.S. at 180 (emphasis removed)

— presents “a legal conclusion that we review de novo, although we review any factual findings relevant to this legal determination for clear error.” United
States v. Evans , 404 F.3d 227, 236 (4th Cir. 2005) (citation omitted). In contrast, “ [t] he remaining three [ Sell ] factors ”

— which seek to predict the likely success of an involuntary medication order and to assess alternatives

— “ present factual questions subject to clear error review.” United States v. White , 620 F.3d 401, 410 (4th Cir. 2010). The district court’s determination that Tucker’s continued hospitalization is reasonable under

1 Tucker also filed several pro se notices of appeal that have been consolidated with his counseled appeal in No. 2 0

- 4 537 . We also have jurisdiction over these appeals under the collateral order doctrine. We conclude any challenge to the district court’s co mpetency order is forfeited because it was not raised in Tucker’s opening brief. See Grayson O Co. v. Agadir Int’l LLC , 856 F.3d 307, 316 (4th Cir. 2017). Tucker’s remaining pro se challenges are subsumed by our reasons for rejecting the arguments raised b y his attorneys

. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 10 of 1811 18 U.S.C. § 4241(d)(2) is also “a finding of fact that we review for clear error.” Curbow , 16 F.4th at 109.
A. We hold the distr ict court committed no reversible error in entering an involuntary medication order. Tucker challenges two facets of the district court’s decision. First, Tucker contends the district court fail ed to properly consider that he has already spent more than fi ve years in federal custody. Second , Tucker asserts the district court clearly erred in concluding the government’s proposed treatment plan is likely to restore his competency. We are not persuaded by either argument.
1. The first Sell factor asks whether “ important government al interests are at stake.”
539 U.S. at 180. Not surprisingly, t he Supreme Court has emphasized the government has an “important” interest “in bringing to trial an individual accused of a serious crime.” Id. At the same time, “[c]ourts .

. . must consider the facts of the individual case in evaluating the [ g ] overnment’s interest in prosecution,” including whether “[s]pecial circumstances may less en the importance of that interest” in a particular situation. Id. “[T ]he central consideration when determining whether a particular crime is serious enough to satisfy [the first Sell ] factor is the ‘maximum penalty authorized by statute. ’ ” Chatm o n , 718 F.3d at 37 4 (quoting Evans , 404 F.3d at 237). This Court has declared i t “beyond dispute” that the government has “a n important interest in trying a defendant charged with a felony carrying a maximum punishment of 10 years imprisonment.” Evans , 404 F.3d at 238. H ere, the offenses Tucker is charged with carry maximum penalt ies USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 11 of 1812 rang ing from 15 to 30 years of imprisonment. See p p
. 5

– 6 , supra . T he circumstances of this case, taken a s a whole, do not eliminate the government’s otherwise substantial interest in prosecuting Tuc ker

. Tucker emphasizes he has already been detained for more than five years. He also notes that, before he was even arrested, the government agreed to let him plead guilty to a single count of transporting child pornography

— an offense whose penalty range would have been between five and 20 years of imprisonment. H ad he ultimately decided to plead guilty , Tucker argues , “he would likely have had an advisory Guidelines range at or near the minimum sentence of 60 months.” Tucker Br. 43. Without question, the fact that Tucker “has already been confined for a significant amount of time” cuts against the government. Sell , 539 U.S. at 180. Tucker is also right that this Court has considered the length of a defendant’s “likely prison sentence” in assessing whether an extended period of pretrial detention undermines “the government’s interest s in protecting the public, in general and spec ific deterrence, and in obtaining just punishment.” White , 620 F.3d at 413, 415

. And although Tucker cites no decision of any
court that has considered evidence of previous potential plea agreements in assessing the strength of the government’s interest, w e need not

— and do not

— treat such evidence a s irrelevant to the Sell analysis. Instead, we hold only that

— under “the facts of th[is] individual case”

— the government retains a substantial interest in prosecuting Tucker. Sell , 539 U.S. at 180. Tucker is charged with five felony offense s , two of which carry minimum sentence s of 15
years of imprisonment. See p p
. 5

– 6 , supra . Unlike White , then, this is not a situation where USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 12 of 1813 Tucker’s pretrial detention will last “ considerably longer than [his] likely sentence.”
620 F.3d at 418. In addition, the offenses with which Tucker is charged are not comparable to the purely financial crimes at issue in White . See 620 F.3d at 405 (describing charge s ). Despite often being shorthanded as “child pornography,” this Court has recently emphasized that the term “child sexual abuse material” more “accurately r eflect[s] what is depicted

— the sexual abuse and exploitation of children.” United States v. Morehouse , 34 F.4th 381, 384 n.1 (4th Cir. 2022) (quotation marks omitted). Tucker is not only charged with knowingly possessing or transferring such materials

. Rat her, Tucker is accused of twice seeking to convince “a person whom [he] believed to be a minor to engage in .

. . sexually explicit conduct for the purpose of producing [a] visual depiction of such conduct , knowing and having reason to know that such visua l depiction [ ] would be transported” in interstate or foreign commerce. JA 81. While “[n]ot every serious crime is equally serious , ” White , 620 F.3d at 419 , the ones charged here are grave by any measure
. Finally, this is not a situation when “[t]he defendant’s failure to take drugs voluntarily” will result in “lengthy confinement in an institution for the mentally ill.” Sell , 539 U.S. at 180. To some extent, that fact cuts both for and against Tucker because the

reason he may be ineligible fo r indefinite civil commitment is that the government cannot show his release would create a substantial danger to others. See Oral Arg. 32:10

– 33:4 6 ; see also 18 U.S.C. §§ 4246(d), 4247(a)(5), 4248(d). At the same time, however, the unlikelihood of future confinement absent a n involuntary medication order means “the risks that ordinarily attach to freeing without punishment one who has committed a serious USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 13 of 1814 crime” are not eliminated

. S ell , 539 U.S. at 180

. Here, such risks would notably include an
in ab ility to provide “appropriate monitoring” through a period of supervised release

. United States v. Bush , 585 F.3d 806, 815 (4th Cir. 2009).
2. We also conclude the district court committed no clear error in finding an involuntary medication order would significant ly further the government’s interest in prosecuting Tucker

. Under the second Sell factor, the government must show “administration of the drugs is substantially likely to render the defendant competent to stand trial” and that administrati on of such drugs “is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense.” Sell , 539 U.S. at 181. “ [T] he government must not only show that a treatment p lan works on a defendant’s type of mental disease in general , but that it is likely to work on this defendant in particular .” Bush , 585 F.3d at 816. Tucker’s argument has two parts. First, Tucker asserts the district court “basically ordered the same medication course (with a slight dosage alteration)” that had been tried previously without an involuntary medication order. Tucker Br. 37. Second, Tucker insists “we know” the treatment plan o rdered by the district court “would be unlikely to work ” for
him “ because it ha[s] already been tried and failed. ” Id. at 38. Had we been sitting as the court of first instance, we might have agreed with Tucker on th e s e point s . But the parties competing a rguments delve deep into the particulars of Tucker’s extensive medical history and the intricacies of treating a severe mental illness

— areas where the district court’s comparative expertise is at its zenith and ours its nadir. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 14 of 1815 What is more, the ultimate qu estion before the district court was not what happened in the past or why. Instead, as the government correctly observes , the district court was tasked with “ evaluating Tucker’s current prognosis and the likelihood that the currently recommended treatment would render him competent.” U.S. Br. 36. Having scrutinized the parties’ arguments and the record, we are not left “with the definite and firm conviction that a mistake has been committed

. ” United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948). We thus hold the district court committed no reversible err or in finding the second Sell requirement was satisfied.
B. We also conclude the district court made no clear error in finding Tucker’s current confinement “reasonable” under 18 U.S.C. § 4241(d)(2)(A) and thus denying his motion for immediate release. 2 In assessing whether a period of confinement can be justified, “ p recedent and the governing statutory framework require the [g] overnment to act with reasonable speed”

ra ther than “in the quickest possible manner.” Curbow , 16 F.4th at 112

. Thus, a commitment period under Section 4241 (d)(2)(A) is generally reasonable so long as it is not attributable to more than “ reasonable explainable administrative delays

. ” United States v. Wayda , 966 F.3d 294, 308 (4th Cir. 2020); see Tucker Br

. 25 (acknowledging Curbow and Wayda provide the governing standard)

. In addition, because “the proper time and place to contest [any] alleged unreasonable delays” is at the time of the relev ant delay, a defendant’s

2 Although Tucker asserts his continued detention also violates the Due Process Clause, he develops no separate argument on th at point. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 15 of 1816 failure to lodge a timely objection to a particular period forfeits or waives any later challenge. See Curbow , 16 F.4th at 115

– 16 & n.11. This remains true even if the defendant “has been deemed mentally incompetent and unable to understand and assist in the proceeding s against him,” so long as the defendant “has continuously been represented by counsel responsible for choosing his legal strategy and protect ing his interests.” Id. at 117. Under Curbow , we must begin by identifying which

— if any

— periods we may properly review. And, like the district court, we conclude Tucker has forfeited (if not waived) any challenge to most of his confinement. See United Sta tes v. Olano , 507 U.S. 725, 733 (1993) (describing the difference between waiver and forfeiture). Tucker acknowledges he made no objection to his detention until August 12, 2019. At that point, the district court was scheduled to hold a hearing on August 3 0

— just 18 days later. That hearing, however, was delayed for several more weeks at Tucker’s request, before ultimately being held on dates suggested by Tucker’s counsel. Less than a month after the final hearing , the district court issued a comprehensive o rder finding involuntary medication was warranted and ordering Tucker detained for four months to carry out such
treatment. The next day, Tucker moved to stay the involuntary medication order pending appeal, and that stay has been in place ever since. Afte r this Court remanded for further proceedings, the district court scheduled a new evidentiary hearing for 30 days later, but delayed the hearing for 16 additional days “at the request of both parties.” JA 967 n.16. Once the remand hearing was held, the district court issued a new decision less than a month later, concluding involuntary medication remained appropriate and ordering another four

- month period of confinement to facilitate efforts to restore Tucker’s competency

. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 16 of 1817 Since then, the case has been b efore this Court on Tucker’s various appeal s
. See note 1,
supra . Under the circumstances of this case, we conclude the district court did not clear ly err in finding Tucker’s continued detention was reasonable. Even were we to grant Tucker’s premise that he has continually object ed to his detention since August 2019, the vast majority of that time occurred after the district court concluded (and then re

concluded) an involuntary medication order was appropriate and while Tucker pursued two rounds of appeals to this Court. Tucker was, of course, well within his rights to challenge the district court’s involuntary medication order and seek a stay of that order until its lawfulness was resolved. See Sell , 539 U.S. at 177 (emphasizing the “severity of the intrusi on and corresponding importance of the constitutional issue[s]” raised by involuntary medication orders). At the same time, the delays associated with those appeals do not fatally undermine the district court’s finding that an additional period of commitment is reasonable to give its involuntary medication order an opportunity to work.

* * * Involuntary medication orders “carry an unsavory pedigree,” and prolonged pretrial detention of a presumptively innocent person “is serious business

. ” Chatm o n , 718 F.3d at 374 (first quote); United States v. Williams , 53 F

. 4th 825, 832 (4th Cir. 2022) (second quote). Given the deferential standards of review, we conclude the district court committed

no reversible error in deciding an involuntary medication order was warranted and finding it appropriate to grant one final four

- month period of confinement to attempt to restore Tucker’s competency. We emphasize, however, that “[a]t some point [the government] USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 17 of 1818 can’t keep trying and failing and trying and failing, hopi ng to get it right,” JA 481, and we
trust no further extensions will be sought once the current appeal is finally resolved. The orders of the district court are AFFIRMED

. USCA4 Appeal: 21-4166 Doc: 64 Filed: 02/24/2023 Pg: 18 of 18