United States v. Abraham Cruz

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-4378

_______________

UNITED STATES OF AMERICA

v.

ABRAHAM CRUZ,

Appellant

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-11-cr-00242-001)

District Judge: Hon. Christopher C. Conner

_______________

Argued June 10, 2014

BEFORE: FISHER, COWEN AND TASHIMA*,

Circuit Judges

_______________

*Hon. A. Wallace Tashima, Senior United States Circuit

Judge, United States Court of Appeals for the Ninth Circuit,

sitting by designation.

(Filed: July 10, 2014)

Frederick W. Ulrich, Esq. (Argued)

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Stephen R. Cerutti, II, Esq. (Argued)

Kim D. Daniel, Esq.

Office of the United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

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OPINION

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COWEN, Circuit Judge.

We here confront an issue of first impression: whether

the Government, pursuant to the Supreme Court’s decision in

United States v. Sell, 539 U.S. 166 (2003), can have a

sufficiently important interest in forcibly medicating a

defendant to restore his mental competency and render him fit

2

to proceed with sentencing. Under the facts presented in this

case, we answer that question in the affirmative and we will

affirm.

I.

A.

Cruz was arrested in August of 2011 and indicted on

one count of assaulting, resisting, or impeding Social Security

Administration (“SSA”) employees, a violation of 18 U.S.C.

§ 111 (“Count I”), and two counts of threatening a federal law

enforcement officer, violations of 18 U.S.C. § 115

(respectively, “Count II” and “Count III”). The District Court

granted Cruz a judgment of acquittal on Count I, and a jury

returned guilty verdicts on Count II and Count III.

In August of 2012, after the District Court received but

before Cruz could raise objections to the pre-sentence

investigation report (“PSR”), the Government raised concern

about and moved for a determination of Cruz’s competency. 1

Its motion was granted, and Cruz was evaluated by Dr.

William J. Ryan, a forensic psychologist working for the

Federal Bureau of Prisons (“BOP”). Dr. Ryan, as reflected in

a report submitted to the District Court, concluded that Cruz

was mentally incompetent because he suffered from

1

The Government sought a competency determination

at this stage of the proceedings because “Franklin County

prison officials [had] complained about Cruz’s behavior.”

(App. 69.)

3

schizophrenic disorder, bipolar type. Upon receipt of Dr.

Ryan’s report, the District Court scheduled a competency

hearing. Following that hearing, it concluded that Cruz was

mentally incompetent and found that he could not proceed

with sentencing.

The District Court received a second competency

evaluation and report from the BOP in May of 2013, which

was co-authored by forensic psychologist Angela Weaver and

BOP staff psychologist Robert Lucking. Drs. Weaver and

Lucking concurred with Dr. Ryan’s diagnosis, noted Cruz’s

ongoing refusal to take anti-psychotic medication

recommended by BOP personnel, and concluded that without

such medication Cruz would remain mentally incompetent.

They also concluded that “there is a substantial probability

that [his] competency can be restored with a period of” forced

medication. (App. 70.) The Weaver/Lucking report included

a proposed treatment plan and a request that the Government

seek a court order under Sell, authorizing the BOP to

medicate Cruz involuntarily.

B.

The Government filed a motion on May 29, 2013,

seeking an order authorizing the BOP to medicate Cruz

against his will. (See App. 68-142.) The papers filed by the

Government included, inter alia, its “Omnibus Motion and

Brief,” related exhibits, and, pursuant to the District Court’s

local rules, a certificate indicating that Cruz’s lawyer was

contacted and expressed Cruz’s non-concurrence in the

motion. The Omnibus Motion and Brief made clear that the

4

Government sought two forms of relief: first, a hearing

pursuant to Sell; and second, following the hearing, a court

order authorizing forced medication.

The District Court promptly scheduled an evidentiary

hearing, which was continued three times (twice at Cruz’s

request) and ultimately held on October 22, 2013. In the

intervening five months—i.e., the period following the May

29, 2013 filing of the motion and preceding the October 22,

2013 hearing—Cruz failed to file a petition, motion, brief, or

other document indicating that he opposed the Government’s

ultimate request for relief.

The District Court began the October 22, 2013 hearing

by informing the parties that it was “held pursuant to the

Supreme Court decision in Sell v. United States” and

providing “the Sell criteria sort of as a backdrop to the

testimony” that would be presented. (App. 145, 147.) It

reminded the parties that “involuntary medication of

nondangerous individuals should only occur when four

conditions are satisfied” and recited those factors for their

benefit:

First, the court must find that important

governmental interests are at stake. Second, the

court must conclude that involuntary

medication will significantly further those

interests, and this second factor includes

determining that medication is substantially

likely to render the defendant competent and

that the treatment is unlikely to have side effects

5

that impair the defendant’s ability to assist

counsel.

Third, the court must determine that

involuntary medication is necessary to further

those interests because alternative[,] less

intrusive treatments are unlikely to achieve the

same results. And fourth, the court must find

that involuntary medication is medically

appropriate, or, in other words, in the patient’s

medical interests in light of his medical

condition.

The first factor, whether the government

has advanced sufficiently important interests to

justify forcible medication, is a question of law,

and the remaining three factors are factual

questions which the government must prove

with clear and convincing evidence . . . .

So in light of those factors and that

background, . . . I’ll turn to the government and

ask . . . if [it] would like to present testimonial

evidence in support of [its] motion.

(App. 147-49.)

Drs. Weaver and Lucking testified for the

Government, which introduced, among other documents, both

the PSR and the May 2013 Weaver/Lucking report. Cruz,

who was represented by the Federal Public Defender, did not

object to the introduction of either of those documents.

However, he noted through counsel that he “didn’t

necessarily agree with that guideline range.” (App. 229.)

6

Shortly thereafter, again acting through counsel, he declined

the opportunity to present evidence at the hearing and stated

that he “[did not] have any argument at [that] juncture.”

(App. 230.)

The District Court took the matter under advisement

and two days later entered the order that is at issue on appeal.

As there illustrated, the District Court considered the

circumstances of Cruz’s case and concluded that all four of

the Sell criteria were satisfied. Its analysis of the first

criterion, which is central to this appeal, rested on two legs.

First, the District Court concluded that a sufficiently

important government interest was at stake because

“[r]endering a defendant competent for sentencing enables

not only the government, but also the court and the defendant

himself, to ensure that the defendant receives a sentence that

accurately reflects the nature of his offense and his individual

circumstances.” (App. 7 (citing United States v. Wood, 459

F. Supp. 2d 451, 457-60 (E.D. Va. 2006)).) It further

explained:

Neither the Supreme Court nor the Third

Circuit ha[s] promulgated a test to determine

the seriousness of a crime, but other circuits

have looked to the statutory maximum

mandated for the offense or the applicable

guidelines range. The Third Circuit in [United

States v. ]Grape[, 549 F.3d 591, 600 (3d Cir.

2008),] determined that under either rubric, the

defendant was accused of “serious” crimes

7

because the crimes had statutory mandatory

minimums of 10 and 15 years and the defendant

had a guidelines range of 87 to 108 months[’]

imprisonment.

In the case sub judice, the draft pre-

sentence investigation report provisionally

identifies a 10-year statutory maximum for each

count and a guidelines range of 100 to 125

months[’] imprisonment. Certainly, pursuant to

the criteria set forth in Grape, Cruz was

convicted of “serious” crimes and the

government possesses a strong interest in

rendering him competent for sentencing.

(App. 7-8 (citations omitted).) 2

Second, the District Court found that no special

circumstances lessened the importance of the Government’s

interest. It noted that Sell identified two examples of such

special circumstances: “(1) when the defendant has already

been incarcerated for a significant period of time; or (2)

whether there is a possibility of future civil commitment.”

(App. 8.) But it concluded that neither of those circumstances

were present here.

2

The District Court was “mindful . . . that neither

party . . . had the opportunity to lodge objections to the pre-

sentence investigation report’s findings” and noted that it had

not “yet . . . consider[ed] the many circumstances that may

contribute to Cruz’s ultimate sentence.” (App. 5 n.1.)

8

With respect to the length of Cruz’s incarceration, the

court concluded that he had not been incarcerated for a

significant amount of time. It cited and discussed Grape,

where this Court noted that the defendant had been

incarcerated for approximately three and half years but

“reasoned that in light of [his] potential sentence, he would

still need to serve a majority of his sentence if convicted.”

(Id. (citing Grape, 549 F.3d at 602).) The Grape court

concluded as a matter of law that that defendant had not been

incarcerated for a significant amount of time. By analogy, the

District Court reached the same conclusion here. It reasoned

that Cruz, who had been incarcerated for only two years,

might still need to serve the majority of his sentence. When

reaching that conclusion, the District Court relied principally

upon the PSR, which “provisionally identifie[d] a 10-year

statutory maximum for each count and a guidelines range of

100 to 125 months[’] imprisonment.” (Id.)

With respect to the possibility of future civil

confinement, the District Court examined the statutes that

might authorize such confinement, 18 U.S.C. § 4246 and 50

Pa.C.S. § 7301, and noted each statute’s prerequisites to civil

confinement. Importantly, 18 U.S.C. § 4246 required “a

substantial risk of bodily injury to another person or serious

damage to property of another” while 50 Pa.C.S. § 7301

required a showing of “clear and present danger or harm to

others or to himself.” In light of those prerequisites, the

District Court made note of record evidence that called into

question the likelihood that Cruz could be civilly committed.

Although “the [PSR] indicate[d] that Cruz has a lengthy

criminal history involving numerous acts of violence and

9

threats of violence,” and although “[e]ntries from the [BOP]’s

Psychology Data System . . . indicat[ed] that Cruz ha[d]

continued to threaten violence against others,” “[t]he May

2013 evaluation explicitly state[d] that Cruz ha[d] not posed a

threat to himself or others . . . and does not pose a risk of

committing serious harm to others.” (App. 9-10.) The

District Court characterized the conflict in the record as

“[u]ncertainty surrounding the” likelihood that “Cruz [could]

be civilly committed” in the future and concluded that such

uncertainty did “not materially diminish” and “clearly [did]

not undermine” the Government’s interest in restoring Cruz’s

mental competency to render him fit to proceed with

sentencing. (App. 10.)

C.

Cruz moved for a stay of the District Court’s order on

October 29, 2013. In the brief filed in support of that motion

(“Stay Brief”), he conceded that “the government has an

interest in sentencing a convicted defendant.” (Supplemental

App. 9.) However, he argued that the District Court erred in

finding that special circumstances did not lessen the

importance of the Government’s interest.

Cruz first argued that the District Court erred when it

concluded that he had not been incarcerated for a significant

amount of time. He disagreed with the District Court’s

reliance on the PSR, and he argued that such reliance was

inappropriate because he had not yet had an opportunity to

object to the Guidelines, argue for relevant departures, or

raise other considerations under 18 U.S.C. § 3553(a).

10

Specifically, he argued that it was unclear whether he needed

to serve a majority of his sentence. (Supplemental App. 6.)

He also argued, with specific reference to both 18

U.S.C. § 4246 and 50 Pa.C.S. § 7301, that “it is quite possible

that [he] could be civilly committed in the future.” (Id.) He

failed, however, to flesh out that argument by either

developing it further or citing relevant legal sources.

The Government did not oppose Cruz’s stay motion,

which the District Court granted. Thereafter, Cruz filed this

appeal.

II.

We pause here to restate the arguments that Cruz

presents on appeal and to draw a roadmap for our analysis.

Cruz argues that the District Court erred when it authorized

the BOP to forcibly administer antipsychotic medication

because the first Sell criterion, which concerns the importance

of the Government’s interest in restoring his competency, was

not adequately established. He raises five arguments that

bear on that issue.

First, he argues that the Government’s interest in

restoring his competency is less than that shown in other

cases (e.g., Grape and Sell) because, here, the Government

merely seeks to restore his mental competency for sentencing.

He thus seeks to distinguish his case from the vast majority of

cases under Sell, where the Government seeks to restore a

defendant’s competency before trial has begun. He then

11

argues that the Government lacks an important interest here

because the crimes at issue, violations of 18 U.S.C. § 115, are

less serious than the crimes that were at issue in Grape and

Sell.

Cruz next raises arguments that concern the District

Court’s reference to and, in some sense, reliance on the PSR.

He contends that such reliance was misplaced because he had

not yet had an opportunity to object to the Guidelines range

calculated in the PSR, which was based on a career-offender

enhancement. He also finds fault with the District Court for

relying on the PSR because it does not take into account his

mental health status, which could serve as a basis for either a

downward departure or variance.

Finally, he states that it is very likely that he will be

civilly committed to a suitable facility for care and treatment

and that such likelihood constitutes a special circumstance

that undermines the Government’s interest.

The Government responds that Cruz failed to raise

these issues before the District Court and urges us to review

those issues only for plain error. Cf. FED. R. CRIM . P. 52(b).

It also asserts that no error was committed, plain or otherwise,

in the Sell proceedings before the District Court.

Our discussion will begin with the threshold inquiry

raised by the Government: the appropriateness of plain error

review. We thereafter turn our attention to the Sell-specific

standard of review, which we have not had cause to examine

12

since our 2008 decision in Grape. Finally, we will examine

the merits of each of Cruz’s arguments. 3

III.

The District Court had jurisdiction under 18 U.S.C. §

3231 because Cruz was charged with violations of federal

law. It is well-settled that we have jurisdiction under the

collateral order exception to 28 U.S.C. § 1291. See, e.g.,

Grape, 549 F.3d at 597.

IV.

Cruz disputes the Government’s invocation of plain

error review on three grounds. First, he argues that plain

error review cannot rise here under Federal Rule of Criminal

Procedure 52(b) because the appeal does not concern a purely

“criminal” issue. Second, he argues that the Government’s

invocation of plan error review “overlooks significant factual

3

Ordinarily, we would determine as a threshold matter

whether our analysis is better couched under Sell or,

alternatively, Washington v. Harper, 494 U.S. 210 (1990).

See, e.g., United States v. Dillon, 738 F.3d 284, 290 (D.C.

Cir. 2013). Here, the District Court received psychological

evaluations that rendered Harper inapplicable because they

demonstrated that Cruz was not a danger to himself or others.

Those evaluations accorded with the Government’s position

before the District Court and similarly accord with its position

on appeal. Thus, we will proceed under Sell without further

discussion.

13

and procedural aspects of this case that belie the application

of such a standard.” (Reply Br. at 3.) Finally, he contends

that the arguments at issue raised on appeal were preserved in

the Stay Brief.

Upon full consideration of Cruz’s arguments, we have

concluded that they have little merit. For the reasons that

follow, we will review this appeal only for plain error.

A.

Cruz first argues against the Government’s invocation

of plain error review because the Federal Rules of Criminal

Procedure neither explicitly recognize nor provide a

framework for objections in Sell proceedings. He thus

distinguishes the instant appeal from an appeal from, for

example, denial of traditional post-trial motions. He also

argues that the absence of such framework precludes the

forfeiture of arguments that he could have raised but did not

raise in the District Court’s Sell proceedings.

Cruz’s arguments invite consideration of traditional

notions of issue preservation, forfeiture, and waiver.

Forfeiture, of course, is not exactly the same as waiver; rights

may be forfeited without being waived. See Freytag v.

Comm’r, 501 U.S. 868, 895 (1991) (Scalia, J., concurring in

part and dissenting in part). The distinction between those

terms is particularly important in criminal appeals. We will

review issues and arguments that were forfeited before the

District Court but, as a general rule, we will not examine

those that were knowingly and intelligently waived. See, e.g.,

14

Gov’t of the V.I. v. Rosa, 399 F.3d 283, 290-91 (3d Cir. 2005)

(“‘[W]here there was forfeiture, we apply a plain error

analysis; where there was waiver, we do not.’” (citation

omitted)).

The Supreme Court considered the differences

between forfeiture and waiver in United States v. Olano.

There, in the context of a criminal appeal, the Court rejected

the bright-line application of waiver doctrines to an issue that

was merely forfeited during trial and presented for the first

time on appeal. See United States v. Olano, 507 U.S. 725,

732-34 (1993). It noted that “[a] rigid and undeviating

judicially declared practice under which courts of review

would invariably and under all circumstances decline to

consider all questions” that were forfeited “would be out of

harmony with . . . the rules of fundamental justice.” Id. at

732 (citation and internal quotation marks omitted).

“Although in theory it could be argued that ‘[i]f the question

was not presented to the trial court no error was committed by

the trial court [and] hence there is nothing to review,’” the

Court rejected that theory, noting that it was “not the theory

that Rule 52(b) adopts.” Id. at 733 (first alteration in original;

citation omitted).

The Supreme Court further explained in Olano that

plain error includes any “[d]eviation from a legal rule” that is

not explicitly, knowingly, and intelligently waived (e.g.,

through a guilty plea made pursuant to Rule 11). See 507

U.S. at 732-33. The parties do not assert and the record does

not support a finding of such waiver here. Thus, the plain

language of Rule 52(b) appears to belie Cruz’s argument, as

15

that rule applies to any “plain error that affects substantial

rights.” FED. R. C RIM. P. 52(b). 4

Finally, it is noteworthy that this Court’s review for

plain error would comport with other courts’ application of

4

We are sensitive to the fact that this appeal concerns

Cruz’s “substantial rights,” in the colloquial sense. Indeed,

we are sensitive to the significant liberty interest at stake:

Cruz’s interest “in avoiding the unwanted administration of

antipsychotropic drugs.” Harper, 494 U.S. at 221. There are

“several dimensions” to that liberty, which “are both physical

and intellectual. Every violation of a person’s bodily

integrity is an invasion of his or her liberty. . . . And when

the purpose or effect of forced drugging is to alter the will

and the mind of the subject, it constitutes a deprivation of

liberty in the most literal and fundamental sense.” Id. at 237-

38 (Stevens, J., concurring in part and dissenting in part); see

also id. (“The liberty of citizens to resist the administration of

mind altering drugs arises from our Nation’s most basic

values.”).

We note, however, that the appeal also concerns

“substantial rights” in the sense contemplated by Rule 52(b)

and characterized in Olano as rights that affect the outcome

of a proceeding. The order authorizing the BOP to forcibly

medicate Cruz plainly meets that test. See, e.g., Sell, 539 U.S.

at 176-77 (“By the time of trial [the defendant] will have

undergone forced medication—the very harm that he seeks to

avoid. He cannot undo that harm even if he is acquitted.

Indeed, if he is acquitted, there will be no appeal through

which he might obtain review.”).

16

that standard to similar appeals. See Dillon, 738 F.3d at 287

(recognizing forfeiture of argument on the first Sell criterion

and related “special circumstances,” and reviewing appeal for

plain error); United States v. Baldovinos, 434 F.3d 233, 239

(4th Cir. 2006).

B.

Cruz next argues that any assertion of forfeiture

“overlooks significant factual and procedural aspects of this

case that belie the application of” plain error review. (Reply

Br. at 3.) Specifically, he argues that his appellate arguments

warrant de novo review because he lacked an opportunity to

oppose the Government’s motion. Essentially, his argument

tracks Rule 51(b) of the Federal Rules of Criminal Procedure,

which provides in pertinent part: “If a party does not have an

opportunity to object to a ruling or order, the absence of an

objection does not later prejudice that party.” FED . R. C RIM.

P. 51(b).

We see little merit in this argument. Review of the

District Court proceedings plainly demonstrates that Cruz

enjoyed but failed to avail himself of several opportunities to

oppose the Government’s motion.

Cruz initially faults the Government for asserting that

he failed to respond to its motion. This aspect of his

argument has two parts. First, he cites the Government’s

certificate of non-concurrence (i.e., the certificate included in

its motion papers) as evidence of his opposition. Second, and

of purportedly “[g]reater significance,” he notes that the

17

District Court scheduled an evidentiary hearing only six days

after the Government filed its motion. Because the District

Court granted the Government some of the relief that it

sought, he posits that there existed no basis for a response.

We find no merit in the argument that relies on the

Government’s certificate of non-concurrence. That certificate

was filed pursuant to the District Court’s Local Rules, which

require the movant to certify that it “sought concurrence in

the motion from each party, and that it ha[d] been either given

or denied.” M.D. P A. L. R. 7.1. By filing the certificate, the

Government met its burden. But the Government’s filing

cannot be construed as meeting Cruz’s burden of filing

meaningful opposition. This conclusion rests on both the

District Court’s adoption and interpretation of its Local Rules.

The District Court has made clear that a party opposing a

motion must file an opposition brief. See Nat’l Med. Care,

Inc. v. Am. Renal Assocs., Inc., No. 1-702, 2002 WL

31107534, at *5 n.5 (M.D. Pa. Sept. 17, 2002); GGIS Ins.

Servs., Inc. v. Lincoln Gen. Ins. Co., Inc., No. 10-932, 2011

WL 484180, at *2 n.3 (M.D. Pa. Feb. 7, 2011). Indeed,

Middle District Local Rule 7.6 provides the framework for

timely-filed opposition and states that “[a]ny party who fails

to comply with this rule shall be deemed not to oppose such

motion.” M.D. P A. L. R. 7.6 (emphasis added).

We similarly find no merit in Cruz’s argument that the

District Court’s calendaring of an evidentiary hearing

obviated the need for opposition papers. Although the

District Court quickly granted the Government’s scheduling

request, the Government’s ultimate goal was clear: it sought

18

an order authorizing the BOP to forcibly medicate Cruz.

Cruz was on notice of the Government’s ultimate request for

relief, and he thus was or should have been aware of his

obligation to oppose (or be deemed to support) it.

Cruz also argues that he was not obliged to present

either evidence or argument at the Sell hearing. In some

sense, he is correct. The Government bore the ultimate

burden of proof under Sell, and Cruz was free to leave the

Government to its proofs. But insofar as Cruz ignored the

local rules and chose not to present argument at the

conclusion of the Sell hearing, he made that choice at his

peril. E.g. Cabán Hernández v. Philip Morris USA, Inc., 486

F.3d 1, 7 (1st Cir. 2007).

C.

Notwithstanding his earlier arguments, Cruz argues

that the Stay Brief preserved the same arguments that he now

raises on appeal. We disagree. The Stay Brief was incapable

of preserving the arguments that Cruz could have raised

earlier but did not raise. See Mick Haig Prods. E.K. v. Does

1-670, 687 F.3d 649, 652 (5th Cir. 2012). That conclusion

would hold true even if the Stay Brief was treated as favoring

both a stay and reconsideration on the merits. See United

States v. Dupree, 617 F.3d 724, 732-33 (3d Cir. 2010). And

it “applies with added force” here, “where the timely raising

of the issue would have permitted the parties to develop a

factual record.” Gass v. V.I. Tel. Corp., 311 F.3d 237, 246

(3d Cir. 2002) (citation and internal quotation marks omitted).

19

V.

We now address the Sell-specific standard of review

and the substantive arguments that Cruz advances on appeal.

A.

As noted above, the first Sell criterion concerns the

Government’s interest in forcibly medicating a defendant to

restore his mental competency. To justify such action, “a

court must find that important governmental interests are at

stake.” Sell, 539 U.S. at 180. A court’s conclusions

regarding the importance of the government’s interest

necessarily involve balancing the seriousness of the crimes at

issue with case-specific “[s]pecial circumstances” that “may

lessen the importance of that interest.” Id. Examples of

special circumstances include “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[)]” and the likelihood, given

“[t]he defendant’s failure to take drugs voluntarily,” that he

will face “lengthy confinement in an institution for the

mentally ill . . . that would diminish the risks that ordinarily

attach to freeing without punishment one who has committed

a serious crime.” Id.

The Sell Court did not allocate burdens of proof or

establish standards for appellate review for any of the four

Sell criteria. Thus, we addressed those issues for the first

time in Grape, and we concluded that: (1) the first Sell

criterion is a question of law subject to plenary review; (2) the

20

second, third, and fourth Sell criteria are questions of fact that

are subject to clear error review; and (3) “the Government

bears the burden of proof on factual questions by clear and

convincing evidence.” 549 F.3d at 598-99.5 Our discussion

of case-specific special circumstances in that case was limited

both by and to the arguments raised by the parties.

Since Grape was issued, at least two other federal

appellate courts have further refined the burdens of proof and

standard of review that apply to the first Sell criterion. First,

the Court of Appeals for the Sixth Circuit announced a

burden-shifting standard that recognizes the defendant’s

interest in bringing special circumstances to light. See United

States v. Mikulich, 732 F.3d 692, 699 (6th Cir. 2013) (“While

the ultimate burden of proving an important interest . . .

remains with the Government, . . . the defendant [must]

demonstrate that the special circumstances of his case

undermine the Government’s interest . . . .”). Shortly

thereafter, the Court of Appeals for the D.C. Circuit clarified

the related standard of review, ruling that it would “review de

novo the District Court’s conclusion that the Government has

an important interest” but qualifying that “[t]o the extent that

the District Court’s determination under the first prong of Sell

depends on findings of fact,” it would “review those findings

5

Those conclusions followed the trends set by the

majority of federal appellate courts. When Grape was

decided, the federal appellate courts that had reviewed the

first Sell criterion agreed that it was a question of law subject

to plenary review. See Grape, 549 F.3d at 598 & n.7

(surveying cases).

21

under a clear-error standard.” Dillon, 738 F.3d at 291

(citations omitted).

Insofar as the Grape court discussed the first Sell

criterion, it had little reason to consider it as a mixed question

of both law and fact, expound upon the related standards of

review, or address a shifting allocation of the burdens of

proof. There was no dispute in that case that the defendant

had been incarcerated for three-and-a-half years and faced

mandatory minimum sentences of ten and fifteen years.

Further, the facts of that case led the Court to “decline to

reach whether [the defendant’s] potential for indefinite civil

confinement on the facts prior to his Harper medication

would have sufficed under the first Sell factor to overcome

the Government’s stated interest.” Grape, 549 F.3d at 603

n.10. 6

We will thus adopt both the Mikulich burden-shifting

standard and the mixed standard of review set forth in Dillon.

Such adoption builds on the standard set forth by the Grape

court and clarifies the extent to which defendants bear

responsibility for proving the existence of special

circumstances—circumstances recognized by the Supreme

Court as inherently fact-specific. See Sell, 539 U.S. at 180

(“Courts . . . must consider the facts of the individual case in

evaluating the Government’s interest . . . .”).

6

Admittedly, the Grape court discussed the likelihood

of civil confinement. But given the clear statement that it

would not reach that issue, its related commentary is best

characterized as obiter dicta.

22

B.

Cruz earlier conceded, in the Stay Brief, that “the

government has an interest in sentencing a convicted

defendant.” (Supplemental App. 9.) Similarly, he recognizes

on appeal that “there is a punishment interest that has some

import.” (Appellant Br. at 8.) But he now raises four related

arguments that we must address. First, he argues that the

Government does not and cannot have an important interest in

restoring a defendant’s mental competency to proceed with

sentencing. In that sense, he distinguishes his case from

Grape, Sell, and others where the Government’s interest arose

pre-trial. He next argues that the offenses for which he was

convicted—i.e., Count II and Count III, which were each a

violation of 18 U.S.C. § 115—are not “serious” offenses that

might justify the Government’s interest. Finally, he argues

that the District Court erred when it considered the

importance of the Government’s interest by reference to the

Guidelines range in the PSR and, more generally, to the PSR

itself.7

1. The Government Can Have an Important Interest

in Restoring a Defendant’s Mental Competency

and Rendering Him Fit to Proceed with Sentencing

In 2006, the Court of Appeals for the Sixth Circuit

stated that it “appear[ed] yet unresolved whether the Sell

7

Certain other arguments that Cruz raises for the first

time in the Reply Brief will not be addressed. See, e.g.,

United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).

23

principles permit the Government to involuntarily medicate a

defendant for the purpose of rendering him competent to be

sentenced,” noting that the Sell principles had to that point

only been applied “where the Government’s purpose in

medicating a defendant is to render him ‘competent to stand

trial.’” Baldovinos, 434 F.3d at 241 n.7 (quoting Sell, 539

U.S. at 181). On that basis, Cruz argues on appeal that the

Government lacks an important interest in restoring his

mental competency to render him fit to proceed with

sentencing. He seeks to distinguish this case from Grape,

Sell, and others like it, where the Sell proceedings took place

pre-trial.

Since Baldovinos was decided, only one court has

considered whether the Government may have such an

interest.8 In 2006, in United States v. Wood, the District

Court for the Eastern District of Virginia affirmatively

answered that question. See Wood, 459 F. Supp. 2d at 456-

60. In effect, the Wood court reached the same conclusion

8

At oral argument, Cruz directed our attention to a

second case, United States v. Perez-Rubalcava, No. 03-

20018, 2008 WL 4601024, at *2 (N.D. Cal. Oct. 15, 2008).

However, because the parties in that case agreed that the

defendant “ha[d] already been in custody for a period of time

nearly as long as the time for which he would likely have

been sentenced if competent,” that court did not have

occasion to reach the questions presented here. See id.

(noting that the Government “ha[d] in large part obtained the

deterrence and other goals of a criminal conviction and

sentence”).

24

that the Government urges here: it held that the Government

has an important interest in restoring a defendant’s mental

competency for sentencing because it has a legitimate interest

in punishing those who have committed crimes. See id. at

458 (“[T]he sentence a defendant receives should accurately

reflect the real nature of his offense, and should be tailored to

the defendant’s circumstances.”); id. at 459 (“[T]here is a

very important, legislatively articulated, governmental

interest in achieving fair, reasonable and non-disparate

sentences for similarly situated defendants who have engaged

in similar conduct.”).

The Wood court’s holding rests on its analysis of the

Sentencing Reform Act of 1984 (“the Sentencing Act”), the

Sentencing Guidelines, and United States v. Booker, 543 U.S.

220 (2005), where the Supreme Court discussed

governmental sentencing interests. See id. at 458-59. It

found in pertinent part that Booker “made clear that the

Government has an important interest in enforcing” both the

Sentencing Act and Sentencing Guidelines. Id. It thus

concluded that the Government has an important interest in

“[r]easonable, constitutionally acceptable measures that help

achieve that interest,” including, importantly, “[t]he forcible

administration of medication to restore competence for

sentencing.” Id. at 459.

Although the Wood court’s decision does not bind this

Court, its reasoning is highly persuasive. As that court

recognized, in Booker the Supreme Court highlighted

governmental interests that are inherent in sentencing

proceedings. It repeatedly emphasized that the sentencing

25

scheme put in place by the Sentencing Act and Sentencing

Guidelines “diminishes sentencing disparity” and “move[s]

the sentencing system in the direction of increased

uniformity.” Booker, 543 U.S. at 250, 253. It also repeatedly

emphasized that sentencing uniformity depends in critical part

on the relationship between punishment and “the real conduct

that underlies the crime of conviction.” Id. at 250; see id. at

251 (“Judges have long looked to real conduct when

sentencing,” and often rely on “a presentence report, prepared

by a probation officer, for information (often unavailable until

after the trial) relevant to the manner in which the convicted

offender committed the crime of conviction.”); id. at 253-54

(“[I]ncreased uniformity . . . does not consist simply of

similar sentences for those convicted of violations of the same

statute . . . . It consists, more importantly, of similar

relationships between sentences and real conduct,

relationships that Congress’ [sic] sentencing statues helped to

advance[.]”).

The Government cannot achieve the sort of uniformity

contemplated in Booker without formal sentencing

proceedings. A criminal defendant enjoys the right to

allocute at sentencing, and he also enjoys the right to object to

the PSR, to argue for favorable sentencing variances and

downward departures from the Sentencing Guidelines, and to

oppose any arguments favoring upward variances or

departures from the Guidelines. Those rights, which to a

great degree reflect the defendant’s “real conduct,” id. at 250,

necessarily require the defendant to both actively participate

in sentencing proceedings and inform his attorney’s actions.

Because an incompetent defendant is presumed unable to take

26

those actions, the Government maintains an important interest

in restoring his mental competency and enabling him to do so.

Cruz here raises two arguments that the Wood court

appears not to have had occasion to address. First, he argues

that the Government’s interest in forcibly medicating him to

restore his competency for sentencing is undercut by its

ability to seek a provisional sentence under 18 U.S.C. § 4244,

whereby “in lieu of being sentenced to imprisonment” he

would “be committed to a suitable facility for care and

treatment” until he either “recovered from his mental disease

or defect” or had been confined for “the maximum term

authorized by law for the offense for which [he] was found

guilty.” 18 U.S.C. § 4244(d), (e). He also argues that the

Government’s interest in restoring his competency for

sentencing is less than the interest recognized in Sell,

contending that the Supreme Court placed particular emphasis

on the pre-trial nature of the proceedings when it announced

that “it may be difficult or impossible to try a defendant who

regains competence after years of commitment during which

memories may fade or evidence may be lost.” Sell, 539 U.S.

at 180. But neither argument carries significant weight. Cruz

would have this Court parse sentencing proceedings from the

substantive trial proceedings to which they are inexorably

linked. This Court, like the Wood court, will reject that

invitation. “If the sentencing phase of a federal criminal

prosecution is not quite a ‘tail which wags the dog of the

substantive offense,’ McMillan v. Pennsylvania, 477 U.S. 79,

88[] (1986), it is nonetheless a critical step in the criminal

justice process that Congress designed.” Wood, 459 F. Supp.

2d at 459.

27

Insofar as Cruz argues that provisional sentencing

under § 4244 undermines the Government’s important

interest in restoring his competency for sentencing, he

appears to ignore important language from the Supreme

Court’s opinion in Sell. There, the Supreme Court noted that

the possibility of civil confinement “affects, but does not

totally undermine, the strength of the need for prosecution.”

539 U.S. at 180 (emphasis added). And it appears axiomatic

that sentencing is an integral part of prosecution:

When people speak of prosecutions, they

usually mean a proceeding that is under way in

which guilt is to be determined. In ordinary

usage, sentencing is not part of the prosecution,

but occurs after the prosecution has concluded. .

. [However, r]ather than using terms in their

everyday sense, (t)he law uses familiar legal

terms in their familiar legal sense. The term

‘prosecution’ clearly imports a beginning and

an end.

. . . Final judgment in a criminal case

means sentence. The sentence is the judgment.

In the legal sense, a prosecution terminates only

when sentence is imposed.

Bradley v. United States, 410 U.S. 605, 608 (1973) (defining

“prosecution” within meaning ascribed by savings clause of

Section 1103(a) of the Comprehensive Drug Abuse

28

Prevention and Control Act of 1970). 9 Indeed, it is hard to

imagine prosecution without sentencing. Such a scheme

would turn criminal convictions into little more than paper

tigers. See United States v. Petty, 982 F.2d 1365, 1371 (9th

Cir. 1993) (Noonan, J., dissenting on other grounds) (“To

deny that the sentencing process is part of a criminal

prosecution is to cut out the guts of criminal prosecution as it

is conducted in our courts.”).

Furthermore, insofar as Cruz argues that the Supreme

Court’s holding in Sell should be limited to the proceedings in

9

Several cases support this conclusion. See Gardner

v. Florida, 430 U.S. 349, 358 (1977) (concluding in context

of Sixth Amendment that “sentencing is a critical stage of the

criminal proceedings at which [a defendant] is entitled to the

effective assistance of counsel”); Bradley, 410 U.S. at 611

(“As we have said, sentencing is part of the prosecution.”);

United States v. Thompson, 713 F.3d 388, 394 (8th Cir. 2013)

(holding in First Amendment context that “[s]entencing may .

. . be viewed as within the scope of the criminal trial itself”

(citation omitted)); United States v. Smith, 354 F.3d 171, 175

(2d Cir. 2003) (“[S]entencing is an integral part of

‘prosecution’ of the accused, as that term is used in” the

General Saving Statute, 1 U.S.C. § 109”); United States v.

Wells, 154 F.3d 412, 414 (7th Cir. 1998) (in affirming

conviction for obstruction of justice, stating unequivocally

that “sentencing is part of the prosecution”); United States v.

Green, 680 F.2d 183, 191 (D.C. Cir. 1982) (Bazelon, J.,

dissenting on other grounds) (“Sentencing is the most

important part of the typical criminal trial.”).

29

which a defendant’s guilt may be determined, he ignores

important procedural aspects of the sentencing phase of trial.

As noted above, the Supreme Court stated its concern in Sell

that “memories may fade or evidence may be lost.” 539 U.S.

at 180. That concern applies with equal force to both the

jury’s determination of a defendant’s guilt and the court’s

sentencing determinations. Whereas the Court announced in

Sell that “it may be difficult or impossible to try a defendant

who regains competence after years of commitment during

which memories may fade and evidence may be lost,” id.

(emphasis added), we recognize that it may be difficult or

impossible to sentence a defendant who regains competence

after years of commitment for substantially the same reasons.

Cf. Booker, 543 U.S. at 251 (noting that “judges have long

relied upon a presentence report . . . for information (often

unavailable until after the trial)” for sentencing purposes).

2. The Offenses at Issue Were “Serious” and They

Thus Justified the Government’s Interest

Cruz next argues that the crimes for which he was

convicted—Count II and Count III, violations of 18 U.S.C. §

115—were not as serious as the crimes at issue in Sell and

Grape, and he appears to contend that the seriousness of his

crimes undermines the Government’s interest in restoring his

competency for sentencing. The seriousness of a defendant’s

crimes is, of course, the yardstick against which the court will

measure the governmental interests that are at stake. And

serious crimes may be committed against either persons or

property because “[i]n both instances the Government seeks

30

to protect through application of the criminal law the basic

need for human security.” 539 U.S. at 180.

Because this Court has not yet promulgated a test to

determine the seriousness of a crime, the District Court

gauged the seriousness of Cruz’s crimes by reference to both

the statutory maximum sentence associated with those

offenses and the likely Guidelines range that was set forth in

the PSR. It concluded that, under either rubric, his crimes

were serious. We agree, and, as in Grape, need not decide

here whether the seriousness of an offense should be

measured against either the statutory maximum associated

with an offense or the likely Guidelines range.

Cruz has not argued by reference to the applicable

statutory maximum that his crimes are not serious. Indeed, it

appears that he cannot. At least two other federal appellate

courts have determined that the offense at issue here, a

violation of 18 U.S.C. § 115, is a serious crime because it

carries a maximum sentence of ten years. See United States

v. Palmer, 507 F.3d 300, 301, 303-04 (5th Cir. 2007); United

States v. Evans, 404 F.3d 227, 238 (4th Cir. 2005)

(concluding that violation of 18 U.S.C. § 115 is a serious

crime “under any reasonable standard”).

His argument on the seriousness of his crimes as

gauged by the Guidelines range in the PSR is similarly

unavailing. In United States v. Gillenwater, the defendant

was charged with violations of 18 U.S.C. §§ 875 (transmitting

threatening interstate communications) and 876 (transmitting

threatening communications by mail), and the “likely

31

Guidelines range [w]as 33 to 41 months.” 749 F.3d 1094,

1101 (9th Cir. 2014). That Guidelines range is less than that

at issue here. 10 Retired Supreme Court Justice Sandra Day

O’Connor, writing for the Ninth Circuit Court of Appeals,

considered the likely Guidelines range and concluded that the

charged offenses were “serious enough to establish an

important governmental interest in [the defendant’s]

prosecution.” Id. She noted that the defendant stood

“accused of making lurid and distressing threats against a

bevy of government officials and employees” and she thus

reasoned that through prosecution the Government sought

“‘to protect through application of the criminal law the basic

human need for security’ . . . [and] the very integrity of our

system of government.” Id. (quoting Sell, 539 U.S. at 180).

10

Cruz takes issue with the likely Guidelines range

that was presented in the PSR, which was premised on a

career offender enhancement. It appears, however, that the

legal arguments relating to that issue are foreclosed by our

recent decision in United States v. Marrero, 743 F.3d 389

(2014).

In any event, the Guidelines range urged by Cruz—

i.e., 51 to 63 months—is still greater than that at issue in

Gillenwater. It is thus a difference without distinction. Even

if we accepted the Guidelines range urged by Cruz, then we

would conclude that the crimes at issue are serious. See

Gillenwater, 749 F.3d at 1101 (concluding that threats of

violence, directed against federal officials, were serious

where likely Guidelines range called for only thirty three to

forty-one months’ imprisonment).

32

The crimes at issue here are no less “lurid and

distressing” than those at issue in Gillenwater. There, the

defendant was charged with sending violent and graphically

descriptive threats to officials from the Occupational Safety

and Health Administration and the Department of Labor. See

id. at 1097-98. Here, Cruz repeatedly threatened officials

from the SSA and Federal Protective Service (“FPS”). He

yelled at several SSA officials that they were “going to need

toe tags” and told an FPS official that he would “take [his]

ticket book, take [his] gun, take [his] doughnut and beat [his]

ass.” In another, particularly graphic encounter with an FPS

official, he stated that “[t]here [sic] gonna be a war about

this,” explaining that you should be concerned about yourself.

. . . If I’m gonna tell you I’m gonna kill you, I ain’t gonna

tell you I’m gonna kill you, I’m gonna swing at you, all I

gotta do is hit you one time,” and inviting the official to

“come see me in person so we can talk and see whatever, so I

can see what I’m talking to. Give me a target, you have one.”

United States v. Cruz, No. 11-242, 2012 WL 3027809, at *1

(M.D. Pa. July 24, 2012) (citations and quotation marks

omitted).

Those statements demonstrate the reasonableness of

concluding that the Government’s interest in preserving

“human security” is as great here as it was in both Sell and

Gillenwater. See Sell, 539 U.S. at 180 (recognizing the

Government’s need “to protect through application of the

criminal law the basic human need for security”);

Gillenwater, 749 F.3d at 1101 (recognizing the Government’s

33

need “to protect the very integrity of our system of

government”). 11

3. As a General Matter, the District Court Did Not

Commit Reversible Plain Error When it

Considered and Relied on the PSR

Cruz next argues that the District Court erred when it

considered the Guidelines range appearing in the PSR

11

In any event, the District Court’s consideration of

the seriousness of Cruz’s offenses by reference to the likely

Guidelines range cannot constitute plain error. As noted

above, we have yet to decide whether the seriousness of an

offense should be measured against mandatory minimum

sentences or likely Guidelines ranges. Other circuit courts are

split on that issue. See Grape, 549 F.3d at 600; see also

Dillon, 738 F.3d at 292 (recognizing the circuit split as

recently as December of 2013). Under those circumstances,

there could be no plain error. See, e.g., United States v.

Keller, 666 F.3d 103, 109 & n.7 (3d Cir. 2011).

Furthermore, the error that Cruz would have us assign

could not have affected his substantial rights. Although the

District Court concluded that Cruz’s crimes were serious by

reference to the likely Guidelines range, it reached the same

conclusion upon its separate and alternative analysis of the

mandatory maximum sentence associated with his crimes.

Because it consideration of the likely Guidelines range

ultimately did not affect the outcome of his Sell proceeding,

Cruz was not and could not be prejudiced by it. See United

States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000).

34

because that range did not account for Cruz’s mental health

status, which could potentially serve as a basis for a

downward departure or variance. However, because Cruz

raises this argument for the first time in the Reply Brief, we

will not consider it. Instead, we will deem it, like the other

arguments that were raised for the first time in the Reply

Brief, to be waived. See Pelullo, 399 F.3d at 222.

C.

Lastly, Cruz argues that the District Court erred when

it concluded that the Government’s interest was not

undermined by the likelihood that Cruz will be civilly

committed in the future. As discussed above, that

circumstance involves a fact-specific inquiry, and ,

accordingly, this Court should review the District Court’s

related legal conclusions de novo and its factfinding for clear

error. See Dillon, 738 F.3d at 291.

The District Court considered the likelihood that Cruz

would be civilly committed in the future under both federal

and state civil commitment statutes and concluded that it was,

at best, unclear. (See App. 9-10.) In pertinent part, it

explained:

Under 18 U.S.C. § 4246(d), the court would

need to find that Cruz is suffering from a mental

disease or defect that would create “a

substantial risk of bodily injury to another

person or serious damage to property of

another” if released. Similarly, the state civil

commitment statute, 50 [Pa.C.S.] § 7301,

35

provides for involuntary emergency

examination and treatment of people who are

“severely mentally disabled and in need of

immediate treatment.” Under the statute, a

person is severely mentally disabled when, as a

result of mental illness, “he poses a clear and

present danger of harm to others or to himself.”

50 [Pa.C.S.] § 7301(a). A “clear and present

danger of harm” to others may be

“demonstrated by proof that the person has

made threats of harm and has committed acts in

furtherance of the threat to commit harm.” 50

[Pa.C.S.] § 7301(b).

The May 2013 evaluation explicitly

states that Cruz has not posed a threat to himself

or others while housed at FMC-Butner and does

not pose a risk of committing serious harm to

others. Cruz was convicted of two counts of

threatening federal law enforcement officers,

but there is no indication that he committed

explicit acts in furtherance of those threats. On

the other hand, the pre-sentence investigation

report indicates that Cruz has a lengthy

criminal history involving numerous acts of

violence and threats of violence and an

extensive history of mental health treatment,

including involuntary commitments. Entries

from the [BOP’s] Psychology Data System,

dated June 20, 2013 to October 10, 2013,

indicate that Cruz has continued to threaten

violence against others. Several entries indicate

36

that the potential for Cruz to cause harm to

others is moderate or high.

(Id.) On those facts, it concluded that “[u]ncertainty

surrounding the issue of whether Cruz is likely to be civilly

committed does not materially diminish, and it clearly does

not undermine, the government’s interest in sentencing Cruz.”

(App. 10.)

Following close review of the record, we will not

disturb the District Court’s factfinding because it is not

clearly erroneous. Its recitation of the facts, including those

related to the May 2013 evaluation, Cruz’s history of mental

health issues, and his history of violence and threats of

violence, is well-supported by the record. Thus, we find no

error in the District Court’s conclusion that it was uncertain

whether Cruz would in the future meet the factual

prerequisites for civil commitment under either 18 U.S.C. §

4246 or 50 Pa.C.S. § 4244. The stark contrast between the

May 2013 evaluation and Cruz’s history of both threats of

violence and actual violence fairly led the District Court to

reach that conclusion. Further, we find no plain error in the

District Court’s conclusion that such uncertainty neither

materially diminished or undermined the Government’s

interest in restoring his competency for sentencing. Cf.

Mikulich, 732 F.3d at 697.

Furthermore, under plain error review, Cruz has failed

to demonstrate that he was prejudiced by any alleged error in

either the District Court’s factfinding or ultimate conclusion

that uncertainty surrounded the likelihood of future civil

37

commitment. Although eligibility for civil commitment may

“diminish[] the risks that ordinarily attach to freeing without

punishment one who has committed a serious crime,” Sell,

539 U.S. at 180, and thereby lessen the Government’s interest

in restoring Cruz’s competency, see Gillenwater, 749 F.3d at

1101, the uncertainty found by the District Court here would

undoubtedly reduce the amount by which this circumstance

would lessen the Government’s interest.

VI.

For the forgoing reasons, we will affirm the order

entered by the District Court pursuant to Sell v. United States,

539 U.S. 166 (2003) on October 24, 2013.

38