     Case: 15-41510   Document: 00513698144        Page: 1    Date Filed: 09/29/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                    No. 15-41510                     FILED
                                                             September 29, 2016
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk

             Plaintiff – Appellee

v.

MELVIN STANFORD GORDON,

             Defendant – Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Melvin Stanford Gordon pleaded guilty as charged
to two counts of transportation of an undocumented alien and one count of
possession with intent to distribute less than 50 kilograms (kgs) of marijuana.
The district court sentenced Gordon to 41 months’ imprisonment followed by a
3-year term of supervised release which included a special condition that he
participate in a mental health program as deemed necessary and approved by
the probation officer. For the following reasons we AFFIRM the district court’s
judgment imposing 41 months’ imprisonment followed by a 3-year term of
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                                      No. 15-41510
supervised release. We VACATE the special condition that Gordon participate
in a mental health program and REMAND for further proceedings.
                        I. Facts & Procedural Background
      According to the Presentence Investigation Report (“PSR”), on December
15, 2014, Gordon was driving a Toyota Tercel when he was stopped at a U.S.
Border Patrol checkpoint located near Falfurrias, Texas. A service canine
alerted to the trunk of Gordon’s vehicle and he consented to a search of the
trunk. When the trunk was opened, agents discovered two subjects inside, a
minor male 1 and an adult female, who were Mexican citizens illegally present
in the United States. The aliens, who were siblings, were covered with clothes
and duffle bags, and their faces were red and sweaty. The female required
assistance to get out of the trunk because her legs were numb from having
ridden in the confined space for so long. Both aliens stated that they were
thirsty and agents observed that there was no way for them to exit the trunk
independently; it could only be opened from the outside. The service canine
then alerted to the backseat of Gordon’s vehicle where agents removed two rear
quarter panels and discovered four wrapped bundles totaling 1.13 kgs of
marijuana.      Gordon was arrested and declined to provide a statement or
answer any questions without an attorney present.
      In January 2015, a federal grand jury returned a three-count indictment
against Gordon charging him with two counts of transportation of an
undocumented alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),(B)(ii) and one
count of possession with intent to distribute less than 50 kgs of marijuana in




      1   The PSR indicates that the minor male was seventeen years old.
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                                       No. 15-41510
violation of 21 U.S.C. § 841(a)(1),(b)(1)(D). In March 2015, without a plea
agreement, Gordon pleaded guilty to all three counts in the indictment.
        In calculating Gordon’s recommended sentence, the PSR applied the
Sentencing Guidelines’ grouping rules, wherein counts involving substantially
the same harm are combined into a single group. U.S.S.G. §§ 3D1.2(d), 1B1.3.
Under these rules, the total combined adjusted offense level was determined
to be 18. 2
        Next, the PSR recommended application of the “career offender”
enhancement pursuant to U.S.S.G. § 4B1.1, because Gordon was at least 18
years old when convicted of the instant felony controlled substance offense and
he had at least two prior felony convictions for controlled substance offenses.
The offense level for a career offender is 17, but because Gordon’s combined
adjusted offense level was greater than 17, i.e., 18, the higher offense level was
used.       Gordon’s offense level was then reduced by 3 for acceptance of
responsibility. U.S.S.G. § 3E1.1(a),(b). Thus, Gordon’s total recommended
offense level was 15.
        The PSR determined that Gordon’s criminal history score was 9, which
established a criminal history category of IV. However, in light of Gordon’s
designation as a “career offender” under U.S.S.G. § 4B1.1(a), his criminal
history category was increased to VI. U.S.S.G. § 4B1.1(b).
        With a total offense level of 15 and a criminal history category of VI, the
recommended Guidelines range was 41–51 months’ imprisonment. U.S.S.G.
Sentencing Table, Ch. 5, pt. A. Paragraph 57 of the PSR states that “[t]he




        Gordon does not appeal the application of the grouping rules to the calculation of his
        2

sentence.
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                                      No. 15-41510
defendant reported no history of mental or emotional health related problems
and this investigation has revealed no information to indicate otherwise.” 3
       Gordon’s sentencing hearing was held in October 2015.                  During the
hearing Gordon objected, arguing that because the PSR applied the higher
adjusted offense level of 18, rather than the career offender offense level of 17
under Section 4B1.1(b), he should not have been assigned the career offender
criminal history category of VI under that subsection.                The district court
overruled Gordon’s objection and accepted the PSR’s recommended offense
level of 15, criminal history category of VI, and sentencing range of 41–51
months’ imprisonment. The district court sentenced Gordon to 41 months’
imprisonment for each of the three counts, to run concurrently. The district
court then imposed a 3-year term of supervised release. With respect to the
supervised release term, the district court specified as follows:
              Based on the information in the report, I’m going to
              order drug and/or alcohol treatment as deemed
              necessary and approved by the probation officer, as
              well as require you to participate in anger
              management counseling as deemed necessary and
              approved by the probation officer, as well as require
              you to participate in a mental health program as
              deemed necessary and approved by the probation
              officer. The Court will not impose a fine. The Court
              has considered the advisory guideline sentencing
              factors set forth in 3553. The Court finds that the
              sentence imposed is sufficient but not greater than
              necessary to impose an appropriate sentence. The

       3  The record contains a separate sealed “Confidential Sentencing Recommendation”
(“CSR”) signed by the Acting Chief and Supervising Probation Officers, that was filed on the
same day as the PSR, where a separate discussion of Gordon’s mental health is detailed.
The CSR recommends a 3-year term of supervised release with a special condition that
Gordon undergo drug and alcohol treatment, anger management counseling, and that he
participate in a mental health program “as deemed necessary and approved by the probation
officer.” In a paragraph labeled “Justification,” the CSR states that “[a]nger management
and mental health counseling are recommended based on the violent nature of two of the
defendant’s prior convictions and the pending charge.”
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                                   No. 15-41510
             Court finds the sentence promotes respect for the law
             and provides just punishment.

Gordon did not object at the sentencing hearing to the mental health program
special condition and in November 2015, timely filed this appeal.
                                  II. Discussion
A. Application of the Sentencing Guidelines
       Gordon first argues on appeal that the district court erred in determining
that he qualified as a career offender with a criminal history category
designation of VI under subsection (b) of Section 4B1.1 when it did not also
apply the offense level from the table in that subsection.
       We review a sentencing decision for reasonableness. Gall v. United
States, 552 U.S. 38, 46 (2007). We first “determine[] whether the district court
committed any significant procedural error.” United States v. Groce, 784 F.3d
291, 294 (5th Cir. 2015). In this step, the district court’s interpretation or
application of the Sentencing Guidelines is reviewed de novo and its factual
findings are reviewed for clear error. Id. (citation omitted). Next, “[i]f there is
no procedural error or the error is harmless, this court then reviews the
substantive reasonableness of the sentence imposed for an abuse of discretion.”
Id.
       Section 4B1.1 of the Guidelines provides in part:
       (a) A defendant is a career offender if (1) the defendant was at least
       eighteen years old at the time the defendant committed the instant
       offense of conviction; (2) the instant offense of conviction is a felony
       that is either a crime of violence or a controlled substance offense;
       and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.
       (b) Except as provided in subsection (c), if the offense level for a
       career offender from the table in this subsection is greater than the
       offense level otherwise applicable, the offense level from the table
       in this subsection shall apply. A career offender’s criminal history


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                                  No. 15-41510
      category in every case under this subsection shall be Category VI.

      Offense Statutory Maximum                            Offense Level
                                     ...
      (6) 5 years or more, but less than 10 years                  17
                                     ...
      (c) If the defendant is convicted of 18 U.S.C. § 924(c) or § 929(a),
      and the defendant is determined to be a career offender under
      subsection (a), the applicable guideline range shall be determined
      as follows . . . .
U.S.S.G. § 4B1.1(a)–(c).

      The issue of whether a case “arises under” subsection (b) of Section 4B1.1
of the career offender guideline when the district court does not also apply the
offense level from the table in that subsection is res nova in this circuit. The
Eleventh Circuit was the first to expressly address the issue in United States
v. Marseille, 377 F.3d 1249 (11th Cir. 2004). In that case, the defendant, like
Gordon, argued that “his case does not, in the final analysis, come under
subsection (b) because the district court did not apply the offense level table in
that subsection to determine [the defendant’s] offense level.” Marseille, 377
F.3d at 1256. There, rather than applying the offense level from the table
under subsection (b), the district court applied the offense level under the
armed criminal career guideline because it was greater. Id. In rejecting the
defendant’s argument, the Eleventh Circuit explained:
      [The defendant] mistakenly concludes from the fact that § 4B1.1(b)
      did not produce the offense level the district court ultimately
      applied, that the career offender guideline was not applicable at
      all. In fact, the district court applied both the career offender and
      armed career criminal guidelines, but followed the direction of




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                                  No. 15-41510
      both guidelines by holding that a greater offense level overrides a
      lesser offense level.
                                  ...

      We hold that a case arises under subsection (b) of the career
      offender guideline in every case in which the defendant qualifies
      as a career offender under subsection (a). The sole exception to this
      rule is the one provided for by subsection (b) itself, which explicitly
      takes those defendants convicted under 18 U.S.C. § 924(c) or 18
      U.S.C. § 929(a) out of the purview of the subsection. USSG §
      4B1.1(b). Consequently, [the defendant’s] case does arise under the
      career offender guideline, and the district court properly
      determined that [the defendant’s] criminal history category is VI.

Id. at 1256–57 (footnote omitted).

      Soon thereafter, the D.C. Circuit expressed agreement with the Eleventh
Circuit’s interpretation of the Guidelines, noting that “[Section] 4B1.1(b) says
that ‘a career offender’s criminal history category in every case under this
subsection shall be Category VI,’ not merely in cases in which the career
offender classification accounted for the base offense level.” United States v.
Miller, 395 F.3d 452, 456 (D.C. Cir.), vacated on other grounds by Miller v.
United States, 545 U.S. 1101 (2005) (alterations omitted) (quoting Marseille,
377 F.3d at 1256–57).

      In United States v. Waters, 648 F.3d 1114 (9th Cir. 2011), the Ninth
Circuit also affirmed a district court’s similar interpretation of Section 4B1.1.
There, the district court applied a greater otherwise applicable offense level
because it exceeded the offense level provided in the table under that
subsection, yet proceeded to assign the defendant a criminal history category
of VI, citing Section 4B1.1(b)’s express language that “[a] career offender’s
criminal history category in every case under this subsection shall be Category
VI.” Id. at 1115 (citing U.S.S.G. § 4B1.1(b)). The Ninth Circuit upheld the
district court’s application of the Guidelines in this regard, signaling
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                                 No. 15-41510
agreement with the Eleventh and D.C. Circuits.             Id. at 1118–19 (“[The
defendant] was sentenced under both of these guidelines provisions [§ 4B1.1(b)
and § 2D1.1(c)]—and properly so.”).

      Our review of the plain text of the Guidelines supports these circuit court
interpretations of Section 4B1.1(b). In interpreting the Guidelines, this court
applies “the ordinary rules of statutory construction.” United States v. Serfass,
684 F.3d 548, 551 (5th Cir. 2012).         If “the language of the guideline is
unambiguous, the plain meaning of that language is controlling unless it
creates an absurd result.” Id.

      It is undisputed that Gordon qualifies as a career offender under
subsection (a) and does not qualify for the carve-out provided in subsection (c)
for offenders convicted under 18 U.S.C. § 924(c) or § 929(a). See U.S.S.G. §
4B1.1(a),(c). Thus, under subsection (b), the district court is required to apply
that subsection’s offense level only if it is greater than the “offense level
otherwise applicable.” Id. § 4B1.1(b). Consequently, the district court applied
the otherwise applicable adjusted combined offense level of 18, since it was
greater than the offense level provided in the table in subsection (b)—level 17.
There is nothing in the subsection that suggests, however, that applying the
“offense level otherwise applicable” somehow removes the district court from
the purview of subsection (b). Id. A more reasonable reading is that by
applying the “otherwise applicable” offense level, the district court’s
application fell under that subsection, since doing so required it to follow the
explicit instructions set forth therein. See id. The final sentence in that
subsection states that “[a] career offender’s criminal history category in every
case under this subsection shall be Category VI.”          Id.   This language is
unambiguous.     If a defendant is designated as a career offender under
subsection (a) and his case falls under subsection (b), and he is not exempted

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                                        No. 15-41510
under subsection (c), he will be assigned a criminal history category of VI, as
the district court did here.

       In sum, because we find the reasoning in Marseille, 4 Miller, and Waters
persuasive and supported by the plain text of the Guidelines, we now join our
sister circuits in holding that, notwithstanding the express exceptions set forth
in subsection (c), “a case arises under subsection (b) of the career offender
guideline in every case in which the defendant qualifies as a career offender
under subsection (a).” Marseille, 377 F.3d at 1257; see Miller, 395 F.3d at 456;
cf. Waters, 648 F.3d at 1118–19. 5

B. Mental Health Program Special Condition
       Second, Gordon argues that the district court committed reversible plain
error by imposing a special condition of supervised release requiring him to
participate in a mental health program “as deemed necessary and approved by
the probation officer.” The Government does not challenge Gordon’s position




       4  Gordon argues for the first time in his reply brief that the rule of lenity compels this
court’s adoption of his alternative interpretation of the Guidelines. See United States v.
Bustillos-Pena, 612 F.3d 863, 868–69 (5th Cir. 2010) (“Although the provisions of the
Sentencing Guidelines are not statutes, we apply the rule of lenity to them when we find that
they are ambiguous.”). We disagree for two reasons. First, our plain text reading of Section
4B1.1 does not indicate that it is ambiguous. See id. at 868. Second, in light of our
aforementioned reasoning, we do not find plausible Gordon’s interpretation that a case only
arises under Section 4B1.1(b) when the district court also applies the offense level from the
table under that subsection. Moreover, we ordinarily do not consider arguments raised for
the first time on appeal in a reply brief. See Hardman v. Colvin, 820 F.3d 142, 152 (5th Cir.
2016).
        5 We also note that these circuit court interpretations of the Guidelines support the

congressional directive that career offenders receive a sentence of imprisonment “at or near
the maximum term authorized.” U.S.S.G. § 4B1.1 cmt. backg’d (2004); see United States v.
Cashaw, 625 F.3d 271, 274 (5th Cir. 2010).
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                                  No. 15-41510
on this issue and instead requests that this court vacate and strike the special
condition as unsupported by the record evidence.
      This court typically reviews the imposition of a special condition of
supervised release for abuse of discretion. United States v. Rodriguez, 558 F.3d
408, 411 (5th Cir. 2009) (citation omitted). However, because Gordon failed to
object at the district court proceedings, plain error review applies. United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). “Plain error exists if (1)
there is an error, (2) the error is plain, . . . (3) the error affect[s] substantial
rights and (4) the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Garcia-Carrillo, 749 F.3d
376, 378 (5th Cir. 2014) (per curiam) (internal quotation marks omitted). “We
determine whether an alleged error is plain by reference to existing law at the
time of appeal.” United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010).

      The district court has wide discretion to impose upon a defendant a term
of supervised release as part of its sentencing decision.        United States v.
Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citation omitted); 18 U.S.C. §
3583(d). However, “such conditions must be reasonably related to one of the
following statutory factors: (i) the nature and circumstances of the offense and
the history and characteristics of the defendant; (ii) the need to afford adequate
deterrence to criminal conduct; (iii) the need to protect the public from further
crimes of the defendant; and (iv) the need to provide the defendant with needed
training, medical care, or other correctional treatment in the most effective
manner.” Salazar, 743 F.3d at 451 (citing 18 U.S.C. § 3553(a)(1)–(2)). If a
condition is reasonably related to any of these four factors, it satisfies the
requirements. Id. (citation omitted). “[S]upervised release conditions cannot
involve a greater deprivation of liberty than is reasonably necessary to achieve
the statutory goals.” Id. (internal quotation marks omitted). A sentencing
court is required “to state the reasons for its imposition of the particular
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                                  No. 15-41510
sentence.” Id. (internal quotation marks omitted). Where the district court’s
rationale is unclear, however, this court can affirm when its “reasoning can be
inferred after an examination of the record.” Id.

      Here, the Government and Gordon both agree that the district court’s
imposition of the special condition requiring Gordon to participate in mental
health counseling is unsupported by the record. The parties both direct this
court to the part of the district court’s order requiring Gordon to participate in
anger management counseling as part of his supervised release conditions.
They submit that the anger management counseling requirement addresses
any issues apparent in the record involving Gordon’s history of anger and
violence, thereby rendering the mental health treatment requirement
superfluous given the absence of any record evidence indicating that he has a
questionable mental health history or a particular diagnosis requiring mental
health treatment. We find these arguments persuasive.

      The district court stated that it was imposing the special condition
“based on the information in the report.” Although there is nothing in the PSR
relating to a history of mental health treatment, the CSR stated that it
recommended the mental health treatment “based on the violent nature of two
of the defendant’s prior convictions and the pending charge.” These reasons,
however, only relate to the district court’s imposition of anger management
counseling, not mental health treatment. Consequently, we conclude that the
district court’s imposition of the mental health condition is not reasonably
related to any of the Section 3553 factors, nor can it be inferred from an
examination of the record before us. See Salazar, 743 F.3d at 451 (citing 18
U.S.C. § 3553(a)(1)–(2)). As such, the district court plainly erred in imposing
the mental health special condition. See Garcia-Carrillo, 749 F.3d at 378. We
further conclude that the error affected Gordon’s substantial rights. See id.

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                                      No. 15-41510
The imposition of the mental health treatment at Gordon’s cost will present a
significant financial burden, require him to attend multiple sets of treatment,
and as Gordon points out, result in an unwarranted perception that he requires
mental health treatment. See id. For these reasons, we find the exercise of
this court’s discretion to correct the error warranted under these
circumstances. Id. at 378–79; see United States v. Olano, 507 U.S. 725, 736
(1993) (“The Court of Appeals should correct a plain forfeited error affecting
substantial rights if the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’”). Accordingly, we vacate the special
condition of supervised release imposed by the district court requiring Gordon
to participate in mental health treatment as deemed necessary and approved
by the probation officer. 6

                                    III. Conclusion

       In light of the foregoing, we AFFIRM the district court’s judgment
imposing 41 months’ imprisonment followed by a 3-year term of supervised
release. We VACATE the special condition requiring the Defendant-Appellant
to participate in a mental health program and REMAND for further
proceedings consistent with this opinion.




       6Because we vacate the mental health special condition on these grounds, we need
not reach Gordon’s alternative argument that the district court’s imposition of the condition
was an impermissible delegation of judicial authority.
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