The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
On August 13, 2010, this matter was before the court for a determination of whether the defendant can be restored to competency to proceed to trial pursuant to Title 18, United States Code, Section 4241. Susan Phan appeared on behalf of the United States, and the defendant appeared through his counsel, Peggy Sasso.
The defendant, Isaias Melchor-Banuelos, has been charged in a one-count indictment with illegal re-entry of a deported alien under Title 8, United States Code, Section 1326(a) and (b)(2). On February 11, 2010, the court ordered an evaluation to determine whether there is a substantial probability that in the foreseeable future Mr. Melchor-Banuelos will attain the capacity to permit his trial to proceed. Accordingly, the defendant was transferred to the Federal Medical Facility in Butner, North Carolina, where he was evaluated by psychiatrist Dr. Ralph Newman and Psychologist Dr. Adeidre Stribling Riley. They concluded that the defendant is suffering from a mental disease that is interfering with his competence to proceed in the case, but that there is substantial likelihood that his competency can be restored if he undergoes a period of treatment with antipsychotic medication. Because of the defendant's condition, the report recommends that the court order involuntary treatment pursuant to Sell v. United States, 539 U.S. 166 (2003).
Accordingly, on August 13, 2010, the held that an administrative hearing must be conducted pursuant to 28 C.F.R. Section 549.43 before the court can consider whether to order the defendant involuntarily medicated under Sell. Because it does not appear that the defendant has undergone this administrative hearing, any Sell inquiry is premature at this time.
The defendant is remanded to the custody of the appropriate personnel at the Federal Medical Facility in Butner, North Carolina, for the purpose of conducting an administrative hearing pursuant to 28 C.F.R. Section 549.43. The report from that proceeding (including the report of any appeal to the institution's mental health division administrator) shall be filed under seal with the court. This court will thereafter conduct a Sell hearing, as appropriate.
The United States Marshal is directed to transport defendant to the Federal Medical Facility, Butner, North Carolina, by the most expeditious and direct means available.
The defendant shall remain in the custody of the Federal Medical Facility, Butner, North Carolina, until such time as the Court otherwise orders.
Time is excluded under the Speedy Trial Act from the date of the last status until September 24, 2010, pursuant to 18 U.S.C. § 3161(h)(7)(A) and thereafter if the period of commitment to the Attorney General is extended.
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