     Case: 18-10175      Document: 00515074097         Page: 1    Date Filed: 08/13/2019




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

                                      No. 18-10175                        FILED
                                                                    August 13, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff-Appellee,

v.

STEVEN KIELBASINSKI,

              Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:17-CR-52-1


Before WIENER, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Steven Kielbasinski pleaded guilty to attempted
transfer of obscene materials to a minor. The offense involved using an
application downloaded from the internet to send two pictures of his genitals
to someone he believed to be 14 years old. The district court sentenced
Kielbasinski to 27 months incarceration and 3 years of supervised release. As
special conditions of Kielbasinski’s supervised release, he was required to (1)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 18-10175
“abstain from the use of alcohol and all other intoxicants” and (2) participate
in an inpatient or outpatient program “for treatment of narcotic, drug, or
alcohol dependency” and contribute at least $20 per month toward the costs of
such program.
      The district court did not explain its reasons for including these two
conditions of supervised release. Though there is some evidence in the record
that might support them, we conclude the matter is better considered by the
district court. Accordingly, the case is REMANDED for proceedings consistent
with this opinion.
                          I. FACTS AND PROCEEDINGS
      Kielbasinski, who at the time was 20 years old, contacted federal agents
posing as a 14-year-old via the “Grindr” application. He eventually sent the
agents two pictures of his genitals. Five days later, law enforcement arrested
Kielbasinski after he arranged to meet with the person he believed to be a
minor.
      A grand jury charged Kielbasinski with attempted transfer of obscene
material to a minor. Kielbasinski pleaded guilty, without a plea agreement, to
the charge and signed a factual resume setting out his conduct.
      The probation officer then prepared a presentence report (“PSR”). The
PSR sets out facts related to the offense and Kielbasinski’s background. In the
“mental and emotional health” section, the PSR states that Kielbasinski took
prescribed medications for depression and diabetes. The PSR describes an
incident in which Kielbasinski admitted himself to a hospital because he
wanted to kill himself by overdosing on his prescribed insulin. The PSR also
describes an incident in which Kielbasinski was admitted to a hospital because
he   had   accidentally   overdosed   on   Benadryl   and     two   prescription
antidepressant   medications.   Although    Kielbasinski     currently    has   a
prescription for those antidepressant medications and had been prescribed a
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                                No. 18-10175
different antidepressant medication before the overdose, it appears from the
PSR that Kielbasinski did not have a prescription for either of the two
prescription medications at the time of the overdose.
      The “substance abuse” section of the PSR states:
      The defendant reported having no substance abuse history. He
      advised that while in high school, he may have consumed alcohol
      twice. He reported no problem with alcohol or drugs.

      The defendant reported receiving no prior substance abuse
      treatment. He related he is not interested in receiving substance
      abuse treatment. He advised he was not under the influence of
      drugs or alcohol when he committed the instant offense.

      The defendant’s mother advised she is not aware of any substance
      abuse history.

The PSR did not include a recommendation for substance abuse treatment.
      The district court sentenced Kielbasinski to 27 months incarceration and
3 years of supervised release, and imposed a $100 special assessment. The
court also imposed several special conditions, including, as relevant here,
(1) “abstain[ing] from the use of alcohol and all other intoxicants during the
term of supervision” and (2) “participat[ing] in a program (inpatient and/or
outpatient) approved by the U.S. Probation Office for treatment of narcotic,
drug, or alcohol dependency” and contributing at least $20 per month toward
such program. The court did not state a specific reason for imposing these two
special conditions. It did state generally that the reason for the supervised
release was that “the defendant will need this amount of supervision to see
that he reassimilates himself back in society, that he obtains suitable
employment, and that he maintains a law-abiding lifestyle.” Kielbasinski did
not object to the PSR or during the district court’s oral pronouncement of the
sentence.


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                                    No. 18-10175
      Kielbasinski timely appealed. He challenges only the two special
conditions.
                             II. STANDARD OF REVIEW
      Because Kielbasinski did not object to the sentence at the district court,
we review the sentence for plain error. Under plain error review, Kielbasinski
must satisfy four requirements:
      First, there must be an error or defect—some sort of “[d]eviation
      from a legal rule”—that has not been intentionally relinquished or
      abandoned, i.e., affirmatively waived, by the appellant. Second,
      the legal error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected the
      appellant’s substantial rights, which in the ordinary case means
      he must demonstrate that it “affected the outcome of the district
      court proceedings.” Fourth and finally, if the above three prongs
      are satisfied, the court of appeals has the discretion to remedy the
      error—discretion which ought to be exercised only if the error
      “seriously affect[s] the fairness, integrity or public reputation of
      judicial proceedings.” 1

                                    III. ANALYSIS
      Kielbasinski contends that the district court plainly erred by imposing
the special conditions prohibiting him from using alcohol and other intoxicants
and requiring his participation in a substance abuse treatment program. He
asserts that (1) he has no history of problems with drugs or alcohol, (2) the
instant offense did not involve drugs or alcohol, and (3) the district court did
not articulate any reason for imposing these special conditions or connect them
to the § 3553(a) factors.
      In response, the government points out that (a) Kielbasinski has not yet
started his term of supervised release and (b) the district court has the
authority to modify conditions of supervised release. According to the


      1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam) (quoting
United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir. 2015)).
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                                     No. 18-10175
government, Kielbasinski’s challenge is not ripe for review because these facts
create a possibility that the conditions will not be enforced. It also maintains
that the two incidents in which Kielbasinski was admitted to the hospital—
one for suicidal thoughts and the other for an accidental overdose—support the
conditions.
      “A district court’s discretion in imposing conditions of supervised release,
though extensive, is subject to statutory requirements.” 2 Such conditions must
be “reasonably related” to one of four factors set out in 18 U.S.C. 3553(a). 3
Those factors are:
      (1) the nature and [circumstances] of the offense and the history
      and characteristics of the defendant, (2) the deterrence of criminal
      conduct, (3) the protection of the public from further crimes of the
      defendant, and (4) the provision of needed educational or
      vocational training, medical care, or other correctional treatment
      to the defendant. 4

       A special condition may not impose a “‘greater deprivation of liberty than
is reasonably necessary for the purposes of’ the last three statutory factors and
must be ‘consistent with any pertinent policy statements issued by the
Sentencing Commission.’” 5 The relevant policy statement here recommends
imposing special conditions requiring a defendant to participate in a substance
abuse program and prohibiting a defendant from using or possessing alcohol
“[i]f the court has reason to believe that the defendant is an abuser of narcotics,
other controlled substances or alcohol.” 6




      2 United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013).
      3 18 U.S.C. § 3583(d).
      4 United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§

3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
      5 Alvarez, 880 F.3d at 240 (quoting 18 U.S.C. §§ 3583(d)(2), (d)(3)).
      6 U.S.S.G. § 5D1.3(d)(4), p.s. (2016).

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                                     No. 18-10175
      As a threshold matter, the government’s ripeness argument is
unavailing. When the terms of a special condition “are patently mandatory—
i.e., their imposition is not ‘contingent on future events’—then a defendant’s
challenge to that condition is ripe for review on appeal.” 7 The challenged
conditions contain no discretionary language. Because the challenged
conditions are “patently mandatory,” Kielbasinski’s challenge is ripe for
review.
      On the merits, we decline to vacate the conditions on the instant record.
True, we have vacated the same special conditions imposed here where a
defendant had no history of drug or alcohol abuse. See United States v. Jordan,
756 F. App’x 472 (5th Cir. 2019). Similarly, in United States v. Alvarez, 880
F.3d 236 (5th Cir. 2018) (per curiam), we vacated a special condition requiring
mental health treatment when there was no record of the defendant having
mental health issues and the district court made no specific findings justifying
the conditions.
       Here, however, Kielbasinski does have some history of substance abuse
related to his diagnosed anxiety and depression. He has twice been
hospitalized for wanting to overdose or actually overdosing. That distinguishes
this case from Jordan and Alvarez. And it provides some support, albeit slight,
for the special conditions related to substance abuse.
      The condition prohibiting alcohol consumption has a more indirect
relationship to the overdose incidents because Kielbasinski has no history of
problems with alcohol. But “we have previously upheld special conditions of
supervised release that required the defendant to abstain from alcohol and
other intoxicants when, although there was no evidence of alcohol abuse



      7United States v. Magana, 837 F.3d 457, 459 (5th Cir. 2016) (quoting United States v.
Carmichael, 343 F.3d 756, 761 (5th Cir. 2003)).
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                                  No. 18-10175
specifically, ‘the [district] court had reason to believe that [the defendant]
abuses controlled substances.’” United States v. Heredia-Holguin, 679 F. App’x
306, 311–12 (5th Cir. 2017) (collecting cases). In light of the facts of this case
and Heredia-Holguin, we cannot say the district court plainly erred in
prohibiting Kielbasinski from consuming alcohol.
      We nonetheless agree with Kielbasinski that the district court did not
adequately explain the basis for the two challenged special conditions. And the
record does not make it so obvious that further explanation is unwarranted.
We therefore remand to the district court so it may provide further explanation
or, if warranted, conduct further factfinding. We leave the determination of
whether to vacate or modify the special conditions to the district court on
remand.
                               IV. CONCLUSION
      The case is REMANDED for proceedings consistent with this opinion.




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