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

                                                 FILED
                                                                        September 11, 2009

                                       No. 09-50154                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

KEENAN MILLER,

                                                   Defendant - Appellant




            Appeal from the United States United States District Court
              for the Western District of Texas, San Antonio Division


Before JOLLY, DeMOSS, and PRADO, Circuit Judges:
PER CURIAM:*
       Keenan Miller appeals a condition of supervised release. Because of a
subsequent modification to the condition, his appeal is moot.
       On February 23, 2009, the district court imposed conditions of supervised
release, including: “The defendant shall take any properly prescribed medication
and continue to take such medication while prescribed by a medical doctor and
authorized by his probation officer.” Miller appealed.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 09-50154

      Miller is prescribed Paliperidone, an antipsychotic medication. He argues
that the district court’s involuntary medication order violated his rights under
the Fourteenth Amendment by failing to afford him due process.
      On July 23, the government moved unopposed under Federal Rule of
Criminal Procedure 32.1(c) to modify the condition. The next day, the district
court granted the motion. The new condition reads:
            With regard to the supervised-release condition requiring the
      Defendant’s participation in mental-health treatment, as
      administered by the probation office, the Defendant shall take
      medication when and as prescribed a probation-office-authorized
      mental-health-treatment provider who is a medical doctor. Any
      required medication must be reasonably related to the Defendant’s
      mental-health treatment. However, the Defendant’s refusal to take
      antipsychotic or psychotropic medication prescribed by such a
      treatment provider shall not be a violation of supervised release
      unless the Court, after affording the Defendant due process,
      determines and orders that the Defendant shall be compelled to
      take such medication, and the Defendant thereafter violates the
      Court’s order.
      The government notified this Court of the change on July 27 and urges us
to consider the appeal moot. Miller replied on August 17, arguing that we
should still consider the appeal.
      We hold that the new condition of supervised release imposes no obligation
on Miller. Instead, it establishes a framework according to which the court may
later require Miller to take antipsychotic or psychotropic drugs. Only after a
hearing affording Miller due process will he be required to take any medication
and potentially face punishment for refusing to comply. Miller’s appeal,
therefore, is moot.
                                                        APPEAL DISMISSED.




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