                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      November 2, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-5012
          v.                                         (N.D. Oklahoma)
 A M B ER HO PSO N ,                           (D.C. No. 05-CR-120-01-PJC)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      Amber H opson pleaded guilty to the theft of government property, a

misdemeanor violation of 18 U.S.C. § 641. The magistrate judge sentenced her to

five years’ probation and ordered her to participate in a program of mental health

treatment.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.


      **
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
      M s. Hopson now argues that the magistrate judge abused his discretion in

ordering mental health treatment because that condition of probation and the

attendant deprivation of liberty were not reasonably related to the offense of

conviction or any other relevant sentencing factor, as required by 18 U.S.C. §§

3553 and 3563. W e agree, and therefore vacate M s. Hopson’s sentence and

remand for resentencing.



                                I. BACKGROUND

      M s. Hopson’s conviction arises out of her receipt of public housing

assistance from the Tulsa Housing Authority, an agency that receives federal

funds. In exchange for housing assistance, M s. Hopson was required to report her

income to the government. However, during 2001-2004, M s. Hopson failed to

report $41,437.83 in income, and she therefore received $9,757 in federal funds to

which she was not entitled. The government charged M s. Hopson with the theft

of government property in violation of 18 U.S.C. § 641, and she pleaded guilty.

      The presentence report provided the follow ing information about M s.

Hopson’s family circumstances:

             [M s.] Hopson married Antonio Nears on February 14,
             2004. The couple has two children . . . . age five . . . and
             eighteen months. [M r.] Nears is currently unemployed and
             w as released from the Oklahoma Department of
             Corrections in O ctober 2005 on a drug conviction. Nears
             also has a prior drug conviction for driving under the
             influence, and four prior convictions for assault and

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              battery-domestic related offenses in which [M s.] Hopson
              is the victim . Two of these convictions were in the
              presence of minor children.

Rec. vol. II, at 8, ¶ 28.

       As to her mental and emotional health, the presentence report states that:

              [M s] H opson received counseling at age eleven after her
              parents[’] divorce. She ultimately was placed . . . at the
              Collinsville Youth Center in Collinsville, Oklahoma, by
              her mother for being incorrigible.

Id. ¶ 30. The report adds that M s. Hopson has no history of alcohol or drug abuse

and that “[t]he Probation Officer has uncovered no additional information to

suggest that the defendant is in need of treatment for substance abuse.” Id. ¶ 31.

       The magistrate judge sentenced M s. Hopson to a term of five years’

probation. One of the conditions of probation was that M s. Hopson “participate

in a program of mental health treatment (to include inpatient and domestic

violence counseling), as directed by the Probation Officer, until such time as the

defendant is released from the program by the Probation Officer.” Rec. vol. I,

doc. 17, at 2 (Judgment, filed Jan. 10, 2006).

       Through counsel, M s. Hopson objected to this condition, arguing that the

condition was not “reasonably related to the crime itself, nor necessary for the

supervision of M s. Hopson.” Id. vol. IV, at 8 (Tr. of Sent’g Hr’g, Jan. 5, 2006).

Counsel acknowledged that the condition “may be beneficial for M s. Hopson,”

but he contended that “it probably exceeds the scope of what is reasonable under



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the crime she committed and was convicted of and the conditions that she need

live under.” Id.

       The magistrate judge overruled the objection, explaining that:

               I think that the feeling there of the Court is that given
               some of the circumstances involved here, there is some
               concern about M s. Hopson’s ability to abide by the
               standard probation conditions as well as the financial
               conditions and restitution conditions that I’m imposing
               here. I think it’s in her best interest, as well as in the best
               interest of the United States that that condition be
               imposed, and I said, not only for her benefit, but to also
               allow us to better police her com pliance with the
               conditions I’ve outlined in our standard probation
               conditions. So, I’m going to go ahead and impose a
               mental health condition, which is primarily aimed at
               domestic violence counseling.

Id. at 8-9.


                                    II. D ISC USSIO N

       On appeal, M s. Hopson challenges the magistrate judge’s imposition of the

mental health treatment condition of probation. She contends that the condition is

not reasonably related to the factors that the sentencing judge is authorized to

consider.     She notes that the justification given for the condition was not her ow n

conduct but rather her husband’s domestic violence convictions. M oreover, the

offense of conviction, housing assistance fraud, was not related to domestic

violence.     Further, she continues, there is no evidence in the record indicating

that she needs mental health treatment. She acknowledges that “a paternalistic



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concern for her well-being [is] understandable,” Aplt’s Br. at 9, but argues that

such a concern is insufficient to justify a condition of probation.

      In response, the government defends the mental-health-treatment condition.

It maintains that the condition pertains to M s. Hopson’s “history and

characteristics,” 18 U.S.C. § 3553(a)(1), and that it is reasonably necessary to

accomplish the purposes of the sentence. See 18 U.S.C. § 3553(a)(2).

      W e review the magistrate judge’s imposition of a condition of probation for

an abuse of discretion. United States v. Bartsma, 198 F.3d 1191, 1200 (10th Cir.

1999). That discretion is cabined by 18 U.S.C. § 3563(b), which provides a list of

discretionary conditions that the court may impose. One of those conditions is

applicable here: the sentencing judge may order the defendant to “undergo

available medical, psychiatric, or psychological treatment, including treatment for

drug or alcohol dependency, as specified by the court, and remain in a specified

institution required for that purpose.” 18 U.S.C. § 3563(b)(9).

      However, under § 3563, the listed conditions must (1) be “reasonably

related to the factors set forth in 18 U.S.C. § 3553(a)(1) and (a)(2)”; and (2)

“involve only such deprivations of liberty and property as are reasonably

necessary for the purposes indicated in section 3553(a)(2).” Id. § 3563(b). The

referenced statute, § 3553(a), provides in part that:

             The court shall impose a sentence sufficient, but not
             greater than necessary, to comply with the purposes set
             forth in paragraph (2) of this subsection. The court, in


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             determining the particular sentence to be imposed, shall
             consider--

             (1) the nature and circumstances of the offense and the
             history and characteristics of the defendant;

             (2) the need for the sentence imposed--

                           (A) to reflect the seriousness of the offense, to
                           promote respect for the law, and to provide just
                           punishment for the offense;

                           (B) to afford adequate deterrence to criminal
                           conduct;

                           (C) to protect the public from further crimes of the
                           defendant; and

                           (D) to provide the defendant with needed
                           educational or vocational training, medical care, or
                           other correctional treatment in the most effective
                           manner;

             (3) the kinds of sentences available . . . .

      Here, the magistrate judge and the government have relied upon M s.

Hopson’s “history and characteristics,” § 3553(a)(1), and her alleged need for

“educational . . . or medical care,” § 3553(a)(2)(D), as justification for the

challenged condition of probation.

      Although we afford broad discretion to the magistrate judge, on this record

we are unable to discern a permissible basis for the challenged condition of

probation. As M s. Hopson notes, the record is devoid of any indication that her

husband’s domestic violence convictions were connected to the offense of



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conviction. See Bartsma, 198 F.3d at 1200 (“An appellate court should not be left

to speculate about the nexus between the condition and the nature and

circumstances of the offense.”). Nor, in contrast to other cases, is there any

evidence that any need that M s. Hopson may have for mental health treatment is

directly related to the underlying conviction for theft of government property. Cf.

United States v. Iversen, 90 F.3d 1340, 1343-44 (8th Cir. 1996) (concluding that

the imposition of psychiatric or psychological treatment as a special condition of

probation was justified by a statement in the presentence report that the

defendant’s “family and friends had expressed concerns as to ‘the emotional toll’

on [the defendant] from various legal disputes” and the defendant’s statement that

the conviction felt “like the end of her life as she knows it”) (quoting the

presentence report).

      In our view, this case is analogous to United States v. Kent, 209 F.3d 1073

(8th Cir. 2000). There, the Eighth Circuit concluded that requiring the defendant

in a mail fraud case to undergo psychological or psychiatric counseling as a

special condition of probation constituted an abuse of discretion. The court noted

the government’s concession that the condition was unrelated to the nature of the

defendant’s offenses. Id. at 1076. M oreover, even though the defendant had

physically abused his wife thirteen years prior to the sentencing, the abusive

behavior had ceased and “the government failed to provide any testimony from a

medical expert aimed at addressing [the defendant’s] current condition.” Id.


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Finally, no evidence suggested that mental health counseling would further the

goals of deterrence or public protection. Id. at 1077.

      The domestic counseling condition at issue here suffers from the same

deficiencies. The record does not establish that the condition is reasonably

related to the nature and circumstances of the offense, the history and

characteristics of M s. Hopson, see 18 U.S.C. § 3553(a)(1), or the purposes of

sentencing set forth in 18 U.S.C. § 3553(a)(2).



                               III. CONCLUSION

      Accordingly, we VACATE M s. Hopson’s sentence and REM AND for

resentencing. On remand, the district court may receive “‘any relevant evidence

the court could have heard at the first sentencing hearing.’” United States v.

Green, 175 F.3d 822, 836 (10th Cir. 1999) (quoting United States v. Ortiz, 25

F.3d 934, 935 (10th Cir. 1994)).



                                Entered for the Court,


                                Robert H. Henry
                                Circuit Judge




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