United States v. Hernandez-Vasquez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50198
Plaintiff-Appellee,
v.  D.C. No.
04-CR-0180 DMS
JOSE HERNANDEZ-VASQUEZ,
OPINION
Defendant-Appellant.

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
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.
14307
14310 UNITED STATES v. HERNANDEZ-VASQUEZ
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, Cal-
ifornia, for the appellee.
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 viola-
tion 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
trial and committed him to the custody of the Attorney Gen-
1
Defendant previously was convicted of the following crimes: aggra-
vated assault on a corrections officer in Arizona (twice); lewd and lascivi-
ous 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 14311
eral pursuant to 18 U.S.C. § 4241. Defendant subsequently
was transferred to the United States Medical Center for Fed-
eral Prisoners in Springfield, Missouri.
On March 3, 2006, the Government requested an evidenti-
ary hearing on its motion to medicate Defendant involuntarily
to render him competent to stand trial. Alternatively, the Gov-
ernment 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 medi-
cate Defendant involuntarily. The district court issued a writ-
ten 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
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 admin-
ister antipsychotic drugs involuntarily to a mentally ill crimi-
nal 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 review-
ing its earlier decisions in Washington v. Harper, 494 U.S.
210 (1990), and Riggins v. Nevada, 504 U.S. 127 (1992). In
Harper, the Supreme Court recognized that an individual has
a significant liberty interest under the Due Process Clause of
14312 UNITED STATES v. HERNANDEZ-VASQUEZ
the Fourteenth Amendment in avoiding the unwanted admin-
istration 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 seri-
ous 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 defen-
dant’s liberty interest in freedom from unwanted antipsycho-
tic 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 intru-
sive 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 cer-
tain instances. But those instances may be rare. That
is because the standard says or fairly implies [that
the trial court must make four findings.]
Sell, 539 U.S. at 179-80.
UNITED STATES v. HERNANDEZ-VASQUEZ 14313
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 prop-
erty. In both instances the Government seeks to pro-
tect through application of the criminal law the basic
need for security.
Courts, however, must consider the facts of the indi-
vidual 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 prose-
cution. 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 medica-
tion will significantly further those concomitant state inter-
ests.” 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.
“Third, the court must conclude that involuntary medica-
tion is necessary to further those interests.” Id. (emphasis in
14314 UNITED STATES v. HERNANDEZ-VASQUEZ
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 adminis-
tering the drugs, such as a court order “backed by the con-
tempt power.” Id.
Finally, the court must find that “administration of the
drugs is medically appropriate, i.e., in the patient’s best medi-
cal 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 proce-
dure that allows involuntary medication of dangerous inmates
under Harper. In fact, the Court stated explicitly that consid-
eration of an involuntary medication order based on danger-
ousness 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 differ-
ent purpose, such as the purposes set out in Harper
related to the individual’s dangerousness, or pur-
poses 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 deter-
mine 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 non-
dangerous is usually more “objective and manage-
able” than the inquiry into whether medication is
permissible to render a defendant competent. The
medical experts may find it easier to provide an
informed opinion about whether, given the risk of
UNITED STATES v. HERNANDEZ-VASQUEZ 14315
side effects, particular drugs are medically appropri-
ate 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 invol-
untary medical treatment as a civil matter, and jus-
tify 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 pur-
poses. . . . 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 origi-
nal). 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 obliga-
tion to apply Harper and make a dangerousness inquiry
before proceeding under Sell.
14316 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) (parenthetical in original).
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 under-
taking the Sell inquiry, a district court ordinarily 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.
[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 Gov-
ernment had made clear that it did not intend to seek involun-
tary 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 [Defen-
dant’s] dangerous conduct while in custody as a basis for
forcibly medicating him.” [Red Br. 21]
[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
UNITED STATES v. HERNANDEZ-VASQUEZ 14317
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 indi-
vidual nondangerous is usually more objective and manage-
able 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 danger-
ousness, and should note for the record its reasons for not pro-
ceeding under Harper, before undertaking the Sell inquiry.2
II
We now move to the district court’s application of the Sell
factors. Neither the Supreme Court nor this circuit has speci-
fied 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 Sec-
ond 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 ques-
tions that should be reviewed for clear error. See id. at 160.
The Tenth Circuit, however, held that both the first and sec-
ond Sell factors are legal questions that should be reviewed de
novo. See United States v. Bradley, 417 F.3d 1107, 1113 (10th
Cir. 2005).
2
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 danger-
ous, the district court should inquire into the reasons for such a position.
14318 UNITED STATES v. HERNANDEZ-VASQUEZ
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 antipsycho-
tic drugs may produce different side effects and enjoy differ-
ent 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 criti-
cal”); id. at 1142 (stating that the court must develop a record
that gives “attention to the type of drugs proposed, their dos-
age, and the expected duration of a person’s exposure”) (cita-
tion omitted).
[6] Sell’s discussion of specificity would have little mean-
ing 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
Sell appropriately does not direct district courts to microman-
age the decisions of medical professionals, reading it as
imposing no limits upon the discretion of the treating physi-
cians would render judicial inquiry about specific drugs aca-
demic. A broad grant of discretion to medical professionals
UNITED STATES v. HERNANDEZ-VASQUEZ 14319
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 compe-
tence 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 appropri-
ate 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
a defendant to competency for trial but rather, if the facts war-
rant, to find another legal basis for involuntary medication.
[7] Accordingly, we hold that a Sell order must provide
some limitations on the specific medications that may be
administered and the maximum dosages and duration of treat-
14320 UNITED STATES v. HERNANDEZ-VASQUEZ
ment. 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 must report back to the court on
the defendant’s mental condition and progress. By setting
such parameters within which physicians must operate, dis-
trict courts will leave physicians enough discretion to act
quickly to respond 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 medi-
cation.
[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 dis-
trict court stated its expectation that the Government would
pursue an agreed-upon course of treatment,3 the court’s writ-
ten order does not limit meaningfully the discretion delegated
to the Government’s physicians. The fact that the order
3
The 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 second-
generation 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
medication 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. Her-
nandez, perhaps through the intramuscular approach, the injec-
tion approach, with the other more aggressive medications.
UNITED STATES v. HERNANDEZ-VASQUEZ 14321
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 find-
ing 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 prop-
erty. In both instances the Government seeks to pro-
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 categori-
cal analysis of a crime’s seriousness, such as a distinction
between crimes malum in se and malum prohibitum. Simi-
larly, we read Sell’s reference to crimes against property and
the person as describing only a subset of the crimes serious
14322 UNITED STATES v. HERNANDEZ-VASQUEZ
enough to support an important government interest in prose-
cution. 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 jus-
tice 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 immigra-
tion laws, are not fundamental to a scheme of ordered liberty.
Instead, common to each of the appellate decisions interpret-
ing 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 pen-
alty 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 juris-
prudence with respect to the right to trial by jury.4 The Fourth
Circuit rejected the argument that it should focus on a defen-
dant’s probable guideline sentencing range, concluding that
4
“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.
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).
UNITED STATES v. HERNANDEZ-VASQUEZ 14323
such an approach would be unworkable because at the invol-
untary 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 punish-
ment 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 establish-
ing 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 Valenzuela-Puentes, 479
F.3d at 1226 (reasoning that “[w]hether a crime is ‘serious’
relates to the possible penalty the defendant faces if con-
victed, as well as the nature or effect of the underlying con-
duct 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 serious-
ness of the crime and [the defendant’s] perceived dangerous-
ness 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’ impris-
onment”), cert. denied, 543 U.S. 1128 (2005).
Although the sentencing guidelines no longer are manda-
tory, they are the best available predictor of the length of a
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 seri-
ousness. It is not, however, the only factor that should be con-
sidered. Because the sentencing guidelines do not reflect the
full universe of relevant circumstances, two indictments alleg-
14324 UNITED STATES v. HERNANDEZ-VASQUEZ
ing 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 Defen-
dant. However, it did state at the Sell hearing that it had con-
sidered 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 conjunc-
tion with other relevant factors such as Defendant’s prior
offenses, the predatory nature of those offenses, and the close-
ness 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
pendency of this appeal, at least some of the relevant facts ini-
tially 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 Govern-
ment’s position explicitly, but rather concluded that it could
UNITED STATES v. HERNANDEZ-VASQUEZ 14325
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 Defen-
dant involuntarily to render him competent for trial and
remand for further proceedings consistent with this opinion.5
VACATED AND REMANDED WITH INSTRUC-
TIONS.
5
We do not reach Defendant’s argument that the Government did not
show that the anti-psychotic drugs it would use are likely to render Defen-
dant competent to stand trial or his argument that such drugs are inappro-
priate given his medical history.