United States of America v.  Jaime Ochoa Baldovinos

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4252 
JAIME OCHOA BALDOVINOS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-02-217)
Argued: November 30, 2005
Decided: January 9, 2006
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Wilkinson and Judge Shedd joined.
COUNSEL
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United
States Attorney, Keith Cave, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.

-- 1 of 15 --

OPINION
KING, Circuit Judge:
Jaime Ochoa Baldovinos appeals from his convictions and sentence
in the Western District of North Carolina on three drug offenses and
a firearms offense. Baldovinos makes two contentions on appeal, both
of which are constitutionally based: (1) that he is entitled to a new
trial because he was deprived of the effective assistance of counsel;
and (2) that his sentence must be vacated because he was involuntar-
ily medicated with antipsychotic drugs for the purpose of rendering
him competent to be sentenced. As explained below, we reject the
ineffective assistance claim because it does not conclusively appear
from the record that Baldovinos’s lawyer was constitutionally ineffec-
tive. In resolving the involuntary medication claim, we conclude that
our analysis is governed by the principles of Sell v. United States, 539
U.S. 166 (2003), we accept the prosecution’s concession of plain
error, and in the exercise of our discretion we decline to correct the
error.
I.
On September 10, 2002, the grand jury charged Baldovinos with
a single count of conspiring to possess with intent to distribute
cocaine (21 U.S.C. § 846), two counts of possessing with intent to
distribute cocaine (21 U.S.C. § 841(a)(1)), and one count of using a
firearm during and in furtherance of a drug trafficking offense (18
U.S.C. § 924(c)). Baldovinos proceeded to trial and, on March 28,
2003, a jury convicted him on all four offenses.
A.
On June 6, 2003, prior to his sentencing, Baldovinos filed a motion
in the district court seeking a transfer from the Mecklenburg County
Jail (the "Jail") to the Federal Correctional Institution at Butner, North
Carolina ("Butner") for a mental health evaluation. By Order of June
10, 2003, the court directed, pursuant to the provisions of 18 U.S.C.
§§ 4241(a) and 4244,1 that Baldovinos undergo an evaluation at But-
1Section 4241(a) of Title 18, which applies "[a]t any time after the
commencement of a prosecution for an offense and prior to the sentenc-
2 UNITED STATES v. BALDOVINOS

-- 2 of 15 --

ner or a like facility, to determine whether he was suffering "from a
mental disease or defect rendering him mentally incompetent to pro-
ceed with sentencing." J.A. 167-68.2
On August 1, 2003, the physicians at Butner submitted a report
concerning Baldovinos’s condition (the "First Report") to the district
court. Based on the information available to them, the Butner physi-
cians concluded that Baldovinos’s mental health problems began in
June 2003, after his trial had concluded. That information included
the statement of a probation officer who had interviewed Baldovinos
in May 2003 and remarked that he appeared "normal," and the state-
ment of his counsel that Baldovinos had exhibited no signs of mental
illness during his March 2003 trial or during his May 2003 interview
with the probation officer. J.A. 245-46.
ing of the defendant," requires a court to conduct a competency hearing
"if there is reasonable cause to believe that the defendant may presently
be suffering from a mental disease or defect rendering him mentally
incompetent."
Section 4244 of Title 18, on the other hand, only applies in a post-
conviction setting. It provides for a hearing on the defendant’s mental
condition if "there is reasonable cause to believe that [he] may presently
be suffering from a mental disease or defect for the treatment of which
he is in need of custody for care or treatment in a suitable facility." 18
U.S.C. § 4244(a). Prior to conducting such a hearing, the court may,
under § 4244(b), order that the defendant be psychologically examined.
Pursuant to § 4244(d), "[i]f, after the hearing, the court finds by a pre-
ponderance of the evidence that the defendant is presently suffering from
a mental disease or defect and that he should, in lieu of being sentenced
to imprisonment, be committed to a suitable facility for care and treat-
ment," the court must so commit the defendant. And under § 4244(d),
"[s]uch a commitment constitutes a provisional sentence of imprison-
ment to the maximum term authorized by law for the offense for which
the defendant was found guilty." If, before his provisional sentence has
expired, the defendant recovers from his illness, § 4244(e) provides that
"the court shall proceed finally to sentencing and may modify the provi-
sional sentence."
2Citations to "J.A. ___" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
3 UNITED STATES v. BALDOVINOS

-- 3 of 15 --

The First Report described in detail Baldovinos’s troubled behavior
after his transfer to Butner. Shortly after his arrival there, Baldovinos
was "placed on suicide watch due to the severity of the behavioral
disturbance." J.A. 247. Specifically, Baldovinos
remained curled into the fetal position, on the concrete floor,
under the bed, and he did not respond to verbal intervention.
He would alternatively crouch for several hours in the cor-
ner of his room or in the shower. When he was touched by
the staff, he would further cower, moan, become tearful, and
withdraw in a frightened manner. He consumed little food
and soiled himself. He resisted staff members’ efforts to
move and clean him.
Id. at 249. When Baldovinos refused to eat and drink on his own,
leading to dehydration, the physicians emergently treated him with
Haldol and Ativan — both short-acting antipsychotic drugs. Although
the medication temporarily improved Baldovinos’s condition, making
him alert and reactive, he quickly decompensated. Some days later,
after being treated for head lice (which involved cutting off much of
his hair), Baldovinos beseeched the staff to kill him and smeared
feces on the windows of his room. He was once again emergently
treated with Haldol and Ativan, and he showed the same small but
unsustained improvements in his condition.
Based on interviews with Baldovinos and observations of his
behavior, the Butner physicians concluded that he suffered from cata-
tonia. The cause of his catatonia, however, was unclear. The physi-
cians principally diagnosed Baldovinos with a psychotic disorder,
such as schizophrenia, but also explained that his catatonia could
result from a neurological problem, a mood disorder (e.g., depres-
sion), or post-traumatic stress disorder. The doctors advised the court
that, in order to make an accurate diagnosis of Baldovinos’s illness,
they needed his medical records and other documentation of his
behavior from the Jail.
In the First Report, the physicians ultimately concluded that Bal-
dovinos was not competent to be sentenced. However, given his brief
positive responses to the earlier emergent treatments with Haldol and
Ativan, the physicians asserted that there was a "substantial probabil-
4 UNITED STATES v. BALDOVINOS

-- 4 of 15 --

ity" that they could restore Baldovinos’s competency for his sentenc-
ing if the court extended his commitment period and authorized them
to involuntarily administer antipsychotic medication. J.A. 251.
Referencing the Supreme Court’s decision in Sell v. United States,
539 U.S. 166 (2003), the physicians articulated several reasons in
support of their request for permission to treat Baldovinos with anti-
psychotic drugs. They first explained that treatment of psychotic
symptoms, such as catatonia, with antipsychotic medication was
"medically appropriate." J.A. 251. They also asserted that such treat-
ment would be unlikely to significantly interfere with Baldovinos’s
ability to assist his counsel at sentencing, given that Baldovinos nei-
ther complained of, nor did the staff observe, any adverse side effects
to his earlier emergent treatment. The physicians expressed hope that,
after a period of treating Baldovinos with "typical" antipsychotic
drugs, his condition would improve to the point that he would consen-
sually take "atypical" drugs, which could only be administered orally
and are generally associated with less severe side effects than their
"typical" counterparts. Id. Finally, the physicians concluded that Bal-
dovinos was "not amenable to other therapies at this time." Id. at 252.
The Butner physicians predicted that, after four months of treat-
ment, Baldovinos would be restored to competency and could be
finally sentenced under the Sentencing Guidelines, rather than provi-
sionally sentenced, pursuant to 18 U.S.C. § 4244(d), to a suitable
facility for care and treatment for the maximum authorized term.
They warned that, if the court returned Baldovinos to the Jail, precau-
tions would have to be taken to protect his safety, including possible
sedation and careful attention to ensure that he "attends to activities
of daily living (e.g., eating, drinking, toileting, showering), and does
not harm himself." J.A. 252-53.
By Order of August 12, 2003, the district court found, for the rea-
sons spelled out in the First Report, that Baldovinos was legally
incompetent, and the court "[t]herefore" extended his commitment
period for continued treatment. J.A. 216. The court also authorized
the Butner physicians to involuntarily medicate Baldovinos and
directed officials at the Jail to furnish the Butner physicians with any
documentation concerning Baldovinos that they requested. At no time
did Baldovinos or his lawyer object to his being medicated.
5 UNITED STATES v. BALDOVINOS

-- 5 of 15 --

On January 13, 2004, the Butner physicians submitted a second
report to the court (the "Second Report"), again concluding that Bal-
dovinos was not competent to be sentenced, but expressing hope that
his treatment with different antipsychotic medication would meet with
greater success should the court extend Baldovinos’s commitment
period.3 Based on information obtained from the Jail and on further
observation of Baldovinos’s behavior, the physicians diagnosed him
with schizophrenia. Among other things, the records from the Jail
revealed that Baldovinos had not experienced his first psychotic break
in June 2003, but rather in August 2002 while being housed at the
Jail. At that time, he had been treated with antipsychotic and antide-
pressant drugs and had responded positively, exhibiting no further
signs of mental illness until May 2003. The Second Report concluded
by requesting that the court defer provisionally sentencing Baldovinos
under § 4244(d) "until attempts to restore [his] competency [had]
been exhausted." J.A. 259.
On June 22, 2004, the Butner physicians submitted a third report
to the court (the "Third Report"), concluding that Baldovinos was
incompetent to be sentenced, but asserting a different diagnosis —
schizoaffective disorder — and predicting that a hybrid treatment of
risperidone (an antipsychotic drug) and antidepressants would pro-
duce better results. On August 24, 2004, the physicians submitted yet
another report to the court (the "Fourth Report"), concluding that Bal-
dovinos’s competency had been restored. The physicians explained
that, with an increased dosage of medication, Baldovinos no longer
exhibited psychotic symptoms, that he expressed himself with ease,
and that he "was logical, coherent, and goal directed." J.A. 230-31.
They warned, however, that Baldovinos’s competence was "contin-
gent on medication compliance." Id. at 231. Because the physicians
surmised that Baldovinos would stop taking his medication if given
the opportunity, they recommended that he remain at Butner until his
hearing was imminent.
The court thereafter scheduled a hearing in Charlotte for September
27, 2004, to assess whether Baldovinos was competent and, if so, to
impose sentence on his four convictions. On September 22, 2004,
3From August 2003 to January 2004, the physicians had unsuccess-
fully treated Baldovinos with the antipsychotic drug Haloperidol.
6 UNITED STATES v. BALDOVINOS

-- 6 of 15 --

Baldovinos was transferred from Butner to the Jail to await the hear-
ing. The court was unable to proceed with the hearing "due to an
apparent decline in [Baldovinos’s] mental health," and, on September
27, 2004, it recommitted him to Butner for further evaluation. J.A.
170.
On December 20, 2004, the Butner physicians issued their fifth
report to the court (the "Fifth Report"), again concluding that Bal-
dovinos was competent to be sentenced. They reaffirmed their diag-
nosis of schizoaffective disorder, but also included a provisional
diagnosis of malingering, i.e., "the intentional production of false or
grossly exaggerated physical or psychological symptoms, motivated
by external incentives." J.A. 239. Specifically, the physicians
observed that, while Baldovinos "cried, trembled, and looked sad"
when with Butner staff, he "laughed and joked, and seemed full of
energy" when with his peers. Id. Furthermore, although Baldovinos
had ceased taking his medication when transferred to the Jail, the phy-
sicians found it suspicious that he had decompensated so quickly.
Despite their concerns that Baldovinos could be malingering, the phy-
sicians recommended that the court’s hearing on competency and sen-
tencing be conducted via videoconference so that he could remain at
Butner.
B.
The court accepted the Butner physicians’ recommendation and
conducted his hearing on February 14, 2005, by videoconference.
After determining that Baldovinos was competent, the court pro-
ceeded to sentencing. On the conspiracy offense, the court departed
from the applicable Guidelines range on the basis of Baldovinos’s
mental illness, and it sentenced him to the statutory minimum term of
sixty months in custody. It also imposed sentences of sixty months on
each of the drug offenses, to run concurrently with the sixty months
imposed on the conspiracy offense. Finally, the court sentenced Bal-
dovinos to the statutory minimum of sixty months on the firearms
offense, which was required by law to run consecutive to the conspir-
acy and drug sentences. Baldovinos thus received a total prison term
of 120 months, the minimum sentence he could have received on the
offenses for which he was convicted.
7 UNITED STATES v. BALDOVINOS

-- 7 of 15 --

Baldovinos has filed a timely notice of appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
As noted, Baldovinos makes two constitutionally based contentions
on appeal. Specifically, he asserts (1) that he is entitled to a new trial
because his lawyer was ineffective in failing to investigate his mental
health before trial; and (2) that his sentence should be vacated
because the district court authorized the Butner physicians to involun-
tarily medicate him with antipsychotic drugs. We address these con-
tentions in turn.
A.
Baldovinos first asserts that his lawyer was constitutionally ineffec-
tive in failing to properly investigate Baldovinos’s mental condition
prior to trial, a contention we may address on direct appeal only if the
lawyer’s ineffectiveness conclusively appears from the record. See
United States v. Russell, 221 F.3d 615, 619 n.5 (4th Cir. 2000). In
support of this assertion, Baldovinos emphasizes that the Jail’s
records indicated that he first suffered a psychotic break in August
2002, well before his March 2003 trial. Unfortunately for Baldovinos,
the record fails to demonstrate that his lawyer was aware of his
August 2002 illness, or that the lawyer otherwise performed in a con-
stitutionally ineffective manner. Indeed, the First Report indicates that
the lawyer did not discern any signs of Baldovinos’s mental illness
until June 2003, and there is nothing in the record to suggest other-
wise. In these circumstances, constitutional ineffectiveness does not
conclusively appear from the record, and the ineffective assistance
claim is unreviewable at this stage.4
4Our conclusion that we may not review Baldovinos’s ineffective
assistance claim, of course, is not "intended to prejudice, or prejudge, in
any way [his] right to apply for relief in a [habeas corpus] proceeding,
should he choose to invoke such remedy." United States v. Mandello,
426 F.2d 1021, 1023 (4th Cir. 1970).
8 UNITED STATES v. BALDOVINOS

-- 8 of 15 --

B.
Baldovinos next maintains that the district court erred in authoriz-
ing the physicians at Butner to medicate him with antipsychotic drugs
against his will, and that such error requires us to vacate his sentence.
Because Baldovinos makes this contention for the first time on
appeal, we review it for plain error only. See United States v. Ruh-
bayan, 406 F.3d 292, 301 (4th Cir. 2005). In order to prevail under
a plain error analysis, a defendant must show (1) an error, (2) that
such error was plain, (3) and that it affected his substantial rights. Id.
(citing United States v. Olano, 507 U.S. 725, 732 (1993)). Even if a
defendant satisfies this three-prong test, we should exercise our dis-
cretion to correct the error only if it seriously affects "the fairness,
integrity or public reputation of judicial proceedings." Olano, 507
U.S. at 736 (internal quotation marks omitted).
The Government asserts that the Supreme Court’s decision in
Washington v. Harper, 494 U.S. 210 (1990), governs our analysis of
this issue, because the Government’s purpose in medicating Bal-
dovinos was — at least in part — to prevent him from harming him-
self and others. If the Government is wrong on this point, and if we
proceed instead under the principles of Sell v. United States, 539 U.S.
166 (2003), the Government concedes that the plain error test would
be satisfied. That is, it concedes that the district court erred in autho-
rizing Baldovinos’s involuntary medication for sentencing, that such
error is plain, and that the error affected his substantial rights. The
Government nevertheless maintains that we should decline to exercise
our discretion to correct the error. As explained below, the Sell princi-
ples apply here, we assume that plain error has occurred, and we
decline to correct the error.
1.
As an initial matter, we must assess whether this proceeding is gov-
erned by the principles of Harper or by those enunciated by the Court
in Sell. As explained below, the purpose of medicating Baldovinos
was to render him competent to be sentenced, and the Sell principles
thus control our analysis.
In its Harper decision, the Court was presented in 1990 with the
question of whether and when the Government could administer
9 UNITED STATES v. BALDOVINOS

-- 9 of 15 --

antipsychotic drugs to a dangerous prisoner against his will. The
Court recognized that a prisoner possesses "a significant liberty inter-
est in avoiding the unwanted administration of antipsychotic drugs
under the Due Process Clause," 494 U.S. at 221-22, quoted in Sell,
539 U.S. at 178, but stressed that infringements on that interest must
be viewed with an eye to the unique prison context and with the def-
erence traditionally accorded the judgments of prison officials, see
Harper, 494 U.S. at 223 (citing Turner v. Safley, 482 U.S. 78 (1987)).
The Court ultimately determined that the Government may constitu-
tionally "treat a prison inmate who has a serious mental illness with
antipsychotic drugs against his will, if the inmate is dangerous to him-
self or others and the treatment is in the inmate’s medical interest."
Id. at 227.
In its Sell decision in 2003, the Court was again confronted with
a situation in which the Government was seeking to administer
unwanted antipsychotic drugs to a person in its ward. In Sell, how-
ever, the Government did not seek to medicate the defendant to pre-
vent him from harming himself or others, but in order to render him
competent to stand trial. In that situation, although the prosecution
generally possesses an important interest "in bringing to trial an indi-
vidual accused of a serious crime," it is not enough that the court
finds medicating the defendant to be in his medical interests. Sell, 539
U.S. at 180. The prosecution is also obliged to prove (1) that involun-
tary medication will "significantly further" the Government’s interest
in prosecuting the defendant (i.e., that the medication is "substantially
likely" to render the defendant competent and "substantially unlikely"
to have side effects that significantly interfere with the defendant’s
ability to assist counsel); (2) that involuntary medication is "neces-
sary" to further the Government’s interest; and (3) that the medication
is "medically appropriate," that is, in the defendant’s best medical
interests. Id. at 181 (emphasis omitted).5
5This Court recently had occasion to elaborate on the Sell require-
ments. See United States v. Evans, 404 F.3d 227 (4th Cir. 2005). In
Evans, we emphasized that those principles require an exacting focus on
the personal characteristics of the individual defendant and the particular
drugs the Government seeks to administer. See id. at 240-42. We need
not further address Evans, however, because the Government concedes
that the district court erred under both Sell and Evans if those decisions
apply here.
10 UNITED STATES v. BALDOVINOS

-- 10 of 15 --

The Court in Sell emphasized that its principles were to apply only
when determining "whether involuntary administration of drugs is
necessary significantly to further a particular governmental interest,
namely the interest in rendering the defendant competent to stand
trial." Id. at 181. Although not explicit on this point, the Court indi-
cated that the determination of which principles apply — those of
Harper or those of Sell — depends on the purpose for which the Gov-
ernment seeks to medicate the defendant. For example, in explaining
that involuntary medication is more appropriate on Harper grounds
than on Sell grounds, the Court advised district courts which are
"asked to approve forced administration of drugs for purposes of ren-
dering a defendant competent" to "determine whether the Government
seeks, or has first sought, permission for forced administration of
drugs on . . . Harper-type grounds." Id. at 183 (emphasis added).
Thus, for Harper to govern the analysis, it is not enough to demon-
strate that medicating a defendant will prevent him from harming
himself or others; the Government must show that the prevention of
such harm was one of the purposes for which it sought authorization
to medicate him.
With these principles in mind, it is clear that we should analyze
Baldovinos’s claim under Sell rather than under Harper, as the record
demonstrates that the Government’s overriding purpose in medicating
Baldovinos was to render him mentally competent to be sentenced.
The district court’s Order of June 10, 2003, committed Baldovinos for
the express purpose of determining whether he was suffering "from
a mental disease or defect rendering him incompetent to proceed with
sentencing." J.A. 167-68. More importantly, in its August 12, 2003
Order authorizing Baldovinos’s involuntary medication, the court
found Baldovinos to be incompetent and "[t]herefore" committed him
for further treatment. J.A. 216. Furthermore, in the Fourth Report —
which concluded that Baldovinos was competent to be sentenced —
the Butner physicians recommended that Baldovinos remain at Butner
until his sentencing was imminent, not to protect his safety, but to
reduce the risk that he would decompensate before his competency
and sentencing hearing could be conducted. The Fifth Report’s final
recommendation, that Baldovinos’s hearing be conducted by video-
conference, was made for the same reason. Because the Government
sought to involuntarily medicate Baldovinos solely for the purpose of
11 UNITED STATES v. BALDOVINOS

-- 11 of 15 --

sentencing, we are obliged to conclude, for the purposes of plain error
analysis, that the Sell principles apply to this case.6
2.
As pointed out above, the Government has conceded that, if the
Sell principles govern, the district court erred, the error was plain, and
the error affected Baldovinos’s substantial rights. For the purposes of
this appeal, we accept the Government’s concession.7 As the Supreme
6To be sure, the record could support a conclusion that the medication
administered to Baldovinos at Butner prevented him from harming him-
self. Indeed, the drugs administered by the Butner physicians ultimately
transformed Baldovinos from a tormented person who tearfully cowered
under his bed, refusing to take food or water, into a logical, goal-oriented
man who laughed and joked with his peers. Moreover, the physicians at
Butner were commendably concerned for Baldovinos’s safety. They
placed him on suicide watch when they sensed he was a danger to him-
self and they warned the court in the First Report that special precautions
should be taken to protect his safety if he were returned to the Jail. These
facts, however, only suggest that the Government could have medicated
Baldovinos under Harper had it chosen to do so.
7Although we need not address the issue here, it appears yet unre-
solved whether the Sell principles permit the Government to involuntar-
ily medicate a defendant for the purpose of rendering him competent to
be sentenced. The Sell principles explicitly apply only where the Govern-
ment’s purpose in medicating a defendant is to render him "competent to
stand trial." 539 U.S. at 181. Furthermore, although the Court in Sell
concluded that the Government generally has an important interest in
bringing an accused to trial for a serious crime, it emphasized that
"[s]pecial circumstances" could mitigate the importance of that interest.
Id. at 180. For example, the Court observed that a defendant’s unwilling-
ness to take medication could result in "lengthy confinement in an insti-
tution for the mentally ill" which "would diminish the risks that
ordinarily attach to freeing without punishment one who has committed
a serious crime." Id. Although the Court advised that "civil commitment
is [not] a substitute for a criminal trial," it made clear that "[t]he potential
for future confinement affects . . . the strength of the need for prosecu-
tion." Id.
In the sentencing context, a court may, pursuant to 18 U.S.C.
§ 4244(d), "provisional[ly] sentence" an incompetent defendant to "a
12 UNITED STATES v. BALDOVINOS

-- 12 of 15 --

Court explained in Olano, however, even if a defendant has demon-
strated that an unpreserved error satisfies the requirements of Rule
52(b) of the Federal Rules of Criminal Procedure, we should exercise
our discretion to correct the error only if it seriously affects "the fair-
ness, integrity or public reputation of judicial proceedings." 507 U.S.
at 736 (internal quotation marks omitted). Because any plain error
that occurred in this case did not seriously affect the interests identi-
fied in Olano, we decline to exercise our discretion to correct the
error.
The Government urges us to decline to recognize any such error
because all those involved in medicating Baldovinos acted in good
faith (a point which is unchallenged, and which we accept), believing
that medicating him was in his own best interests. Although the good
faith of those involved in such a process may have relevance to such
an analysis, it should not be dispositive. If good faith were our sole
guidepost in assessing whether to correct a plain error, such an error
— regardless of its seriousness or the severity of its impact — would
seldom, if ever, be recognized. In any event, we have consistently
exercised our discretion to correct a plain error where no allegation
of bad faith has been made. See, e.g., United States v. Hughes, 401
F.3d 540, 555-56 (4th Cir. 2005) (exercising discretion to correct
plain Sixth Amendment error in sentencing only because defendant
received much longer sentence than authorized by law); United States
v. Floresca, 38 F.3d 706, 713-14 (4th Cir. 1994) (correcting plain
error on basis that defendant was convicted of unindicted offense).
Nonetheless, there are other reasons counseling us against recogni-
tion of any plain error that occurred here. First, Baldovinos has
already been medicated against his will, and nothing we can do now
will alter that fact. Importantly, a like circumstance played a role in
the Supreme Court’s determination in Sell that an order authorizing
the involuntary administration of antipsychotic drugs is collaterally
suitable facility" for care and treatment for "the maximum term autho-
rized by law for the offense for which the defendant was found guilty."
Thus, not only is there a "potential for future confinement" under
§ 4244(d), the term of such confinement is likely to exceed the sentence
the defendant would otherwise receive from the sentencing court.
13 UNITED STATES v. BALDOVINOS

-- 13 of 15 --

appealable. See Sell, 539 U.S. at 177 (observing that "[a]n ordinary
appeal comes too late for a defendant to enforce" right to avoid
unwanted administration of antipsychotic medication). Second, this
"ordinary appeal" presents the unusual circumstance where the defen-
dant is potentially worse off — and in no case better off — if he pre-
vails. If we were to vacate Baldovinos’s sentence, and if he is
presently incompetent to be sentenced, he could be provisionally sen-
tenced to Butner or a similar institution pursuant to 18 U.S.C.
§ 4244(d). Such a provisional sentence must be, under law, for "the
maximum term authorized . . . for the offense for which the defendant
was found guilty," which we have interpreted to mean the statutory
maximum. See United States v. Roberts, 915 F.2d 889, 892 (4th Cir.
1990). Baldovinos’s conspiracy conviction alone (setting aside his
substantive drug offenses and firearms offense) carries a statutory
maximum of forty years, four times as long as the ten-year sentence
he has already received. See 21 U.S.C. § 841(b)(1)(B)(ii)(II) (provid-
ing for maximum penalty of forty years where offense involved 500
grams or more of cocaine). Even if Baldovinos were competent to be
sentenced (or were rendered competent through the constitutional
administration of drugs), and therefore could be finally sentenced
under the advisory Guidelines regime, our decision to vacate his sen-
tence would not improve his position. As previously noted, Bal-
dovinos has already received the minimum sentence permissible
under law on his offenses. See supra Part I.B.
In these circumstances, we are unable to conclude that any error in
medicating Baldovinos against his will seriously affected the "fair-
ness, integrity or public reputation of judicial proceedings." Olano,
507 U.S. at 736 (internal quotation marks omitted). We fail to see
how a remand in this case would enhance the fairness of these pro-
ceedings. Indeed, it is in part out of concern for Baldovinos’s best
interests that we decline to recognize any plain error that occurred in
involuntarily medicating him. Were we presented with some explicit
indication that Baldovinos truly desires to serve a provisional sen-
tence of up to at least forty years, rather than the ten-year, statutory
minimum sentence he has already received, our assessment would
take that position into account. Such an explicit indication, however,
has not been made to us.
We have no doubt that, in some situations, a judicial decision
upholding the Government’s administration of drugs against a per-
14 UNITED STATES v. BALDOVINOS

-- 14 of 15 --

son’s will could raise legitimate questions concerning the integrity of
such proceedings. But the damage, if any, has already been done here,
and we are powerless to reverse it. The inadequacy and potential
unfairness of any remedy we might grant assures us that a decision
to withhold such a remedy does not undermine the integrity of these
proceedings. Finally, we are unable to perceive how our refusal to
declare that Baldovinos has prevailed, and to simultaneously expose
him to the possibility of a provisional sentence four times longer than
the sentence he is serving (and in no case a shorter final sentence than
the one he is serving), impugns the reputation of judicial proceedings.
To the contrary, a judicial ruling reaching such a result would run a
greater risk of undermining public confidence in judicial proceedings
than the decision we render today.
III.
Pursuant to the foregoing, we affirm the judgment of the district
court.
AFFIRMED
15 UNITED STATES v. BALDOVINOS

-- 15 of 15 --