"When the government seeks to involuntarily medicate a mentally incompetent defendant to restore his competency for trial, the government's prosecutorial interest must be balanced against the defendant's significant liberty interest under the Constitution in avoiding the unwanted administration of antipsychotic drugs."United States v. Berry, 911 F.3d 354, 357 (6th Cir. 2018) (quoting Sell, 539 U.S. at 178, 123 S.Ct. 2174 ) (internal quotation and punctuation marks omitted). To secure an order of involuntary medication, the Government bears a significant burden and must establish the following four " Sell factors" by clear and convincing evidence: "(1) the existence of an โimportantโ governmental interest; (2) that involuntary medication will โsignificantly furtherโ the government interest; (3) that involuntary medication is โnecessaryโ to further those interests; and (4) that administration of the drugs must be โmedically appropriateโ for the individual defendant."
โ United States v. Berry, 911 F.3d 354, 357 (6th Cir. 2018) (quoting Sell v. United States, 539 U.S. 166, 178 (2003)) (internal quotation and punctuation marks omitted). To obtain an order for involuntary medication, the Government bears a significant burden to establish the four โSell factorsโ by clear and convincing evidence: โ(1) the existence of an โimportant' governmental interest; (2) that involuntary medication will โsignificantly further' the government interest; (3) that involuntary medication is โnecessary' to further those interests; and (4) that administration of the drugs must be โmedically appropriate' for the individual defendant.
"When the government seeks to involuntarily medicate a mentally incompetent defendant to restore his competency for trial, the government's prosecutorial interest must be balanced against the defendant's significant liberty interest under the Constitution in avoiding the unwanted administration of antipsychotic drugs."United States v. Berry, 911 F.3d 354, 357 (6th Cir. 2018) (quoting Sell v. United States, 539 U.S. 166, 178, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) ) (internal quotation and punctuation marks omitted). To secure an order of involuntary medication, the Government bears a significant burden and must establish the following four " Sell factors" by clear and convincing evidence: "(1) the existence of an โimportantโ governmental interest; (2) that involuntary medication will โsignificantly furtherโ the government interest; (3) that involuntary medication is โnecessaryโ to further those interests; and (4) that administration of the drugs must be โmedically appropriateโ for the individual defendant."
Washington v. Harper, 494 U.S. 210, 221 (1990). "The drastic step of administering these powerful drugs to an unwilling criminal defendant should be taken rarely, and only when absolutely necessary to fulfill an important governmental interest . . . ." United States v. Berry, 911 F.3d 354, 357 (6th Cir. 2018). On appeal, we review de novo the district court's determination that important governmental interests are at stake.
Courts often look to the maximum statutory penalty for the offense as well as the conduct underlying the charged offense in determining whether a crime is โseriousโ for Sell purposes. See United States v. Fieste, 84 F.4th 713, 720 (7th Cir. 2023); United States v. Berry, 911 F.3d 354, 360, 363 (6th Cir. 2018); United States v. White, 620 F.3d 401, 411-12 & n.7 (4th Cir. 2010); United States v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007); United States v. Vigeant, 2012 WL 3064410, at *4 (D. Mass. Apr. 18, 2012); United States v. Rashid, 2023 WL 8111833, at *3 (S.D. Fla. Nov. 21, 2023).
, the Government must have charged Miller with a โserious crime.โ United States v. Berry, 911 F.3d 354, 360 (6th Cir. 2018) (citing Sell, 539 U.S. at 180). Whether a crime is โseriousโ depends on the โmaximum criminal penalty that may be imposed upon the defendant if he is convicted.
โข Under Sell, "in certain circumstances a court may order a defendant to be medicated against his will." United States v. Berry, 911 F.3d 354, 359 (6th Cir. 2018). Because a "defendant has a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs... if the government wishes to involuntarily medicate, it bears a significant burden: all four Sell factors must be established by clear and convincing evidence."
As a matter of specific deterrence, sentences of time served diminish the government's interest in prosecution because the defendant receives no additional period of incarceration after her conviction. United States v. Berry, 911 F.3d 354, 363 (6th Cir. 2018) ("Where a defendant has already served sufficient time that a guilty verdict will result only in a sentence of time served, the deterrent effect of imprisonment has evaporated, and the overall governmental interest in prosecution is weakened.").
We have yet to decide this issue, but other circuits, faced with charged crimes they treat as "serious," compare the recommended Guidelines range that the defendant is likely to face if convicted to the amount of time the defendant has already spent in custody. See, e.g. , United States v. Berry , 911 F.3d 354, 362-63 (6th Cir. 2018) ; United States v. Grigsby , 712 F.3d 964, 973-74 (6th Cir. 2013) ; United States v. Ruiz-Gaxiola , 623 F.3d 684, 694 (9th Cir. 2010) ; United States v. White , 620 F.3d 401, 413-19 (4th Cir. 2010). They do so because the Bureau of Prisons is required to credit pre-trial detention toward any term of imprisonment imposed, see 18 U.S.C. ยง 3585(b)(1), and because "[w]here a defendant has already served sufficient time that a guilty verdict will result only in a sentence of time served, the deterrent effect of imprisonment has evaporated," Berry , 911 F.3d at 363.
Although the Government asserts that Patino's notice of appeal was late, Federal Rule of Appellate Procedure 4(b)(1), which sets the deadline for filing a notice of appeal in a criminal case, is not jurisdictional. See United States v. Berry, 911 F.3d 354, 359 (6th Cir. 2018) ("[T]he timing requirements of Federal Rule of Appellate Procedure 4(b) are 'not jurisdictional' and . . . 'we are not required to dismiss late-filed criminal appeals unless the government has raised the issue ....'" (quoting United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011) (per curiam))). Because "the Government is not seeking to enforce Rule 4(b)'s time limitations in this case," Appellee Br. at 1 n.2, we proceed to address the parties' arguments.