     Case: 15-40718      Document: 00513550933         Page: 1    Date Filed: 06/16/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40718
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 16, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FRANCISCO ALEJANDRO GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2710-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Francisco Alejandro Garcia appeals two special conditions of supervised
release imposed after a prior term of supervised release was revoked. He
contends that the district court committed plain error by ordering him to
participate in a mental health program without explaining how the mental
health special condition was related to the statutory factors of 18 U.S.C.
§ 3553(a) as applicable under 18 U.S.C. § 3583(d). He further contends that


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-40718    Document: 00513550933     Page: 2   Date Filed: 06/16/2016


                                 No. 15-40718

the district court committed plain error with regard to the mental health
condition and a condition that he undergo anger management counseling
because the court improperly delegated to the probation officer the judicial
authority to decide whether the conditions are “necessary.”
      Citing our unpublished decision in United States v. Ruben Garcia,
No. 15-40252, 2016 WL 386141, 2 (5th Cir. Feb. 1, 2016), the Government
agrees that the district court committed plain error by imposing the mental
health condition without offering adequate justification.     Accordingly, the
Government moves, without opposition, to vacate the mental health condition
and remand for resentencing so that the district court can either vacate that
condition or provide the required statutory rationale for imposing it.
      The Government does not explicitly agree with Garcia’s contention that
the judicial function was impermissibly delegated to the probation officer.
Nonetheless, the Government moves to vacate both special conditions and to
remand the case so that the district court may avoid improper delegation by
either vacating the conditions or modifying the judgment to make participation
clearly mandatory while leaving various details to the probation officer, in
accordance with our unpublished decision in United States v. Lomas, No. 14-
20259, 2016 WL 536835, 5-6 (5th Cir. Feb. 10, 2016).
      The Government’s motion is GRANTED. The special conditions ordering
participation in a mental health program and anger management counseling
are VACATED, and the case is REMANDED for resentencing consistent with
this opinion.




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