     Case: 18-10633      Document: 00514864995         Page: 1    Date Filed: 03/08/2019




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


                                    No. 18-10633                             FILED
                                  Summary Calendar                       March 8, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DEWAYNE JORDAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:17-CR-43-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       In 2012, Dewayne Jordan pleaded guilty to bank fraud and was
sentenced to 15 months in prison and five years of supervised release, which
was revoked when he pleaded true to 2017 theft charges. The district court
then sentenced Jordan to 18 months in prison and three years of supervised
release. The district court imposed eight special conditions of supervised
release. Jordan appeals conditions number one and number eight, which


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10633

require his participation in a substance-abuse treatment program and prohibit
consumption of alcohol during the term of supervision.
      Because Jordan did not raise this issue in the district court, we review
for plain error. See United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018)
(per curiam). Jordan must therefore identify (1) a forfeited error that is (2)
clear or obvious and (3) affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does, we may exercise discretion to
correct the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
       A special condition of supervised release must be “reasonably related to
the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D),”
must not involve a “greater deprivation of liberty than is reasonably necessary
for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D),” and
must be “consistent with any pertinent policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3583(d) (citing 18 U.S.C. § 3553(a)). The
relevant policy statement applies “[i]f the [sentencing] court has reason to
believe that the defendant is an abuser of narcotics, other controlled
substances or alcohol.” U.S.S.G. § 5D1.3(d)(4).
      The district court committed clear and obvious error by failing to explain
its reasons for imposing these special conditions, and the court’s reasoning
cannot be inferred from the record. See United States v. Prieto, 801 F.3d 547,
553 (5th Cir. 2015). The substance-abuse treatment requirement and alcohol
prohibition are not reasonably related to the § 3553(a) factors because there is
no reason to believe Jordan abused or abuses drugs or alcohol. According to the
presentence report (PSR), he tried marijuana once at age 16. He drinks alcohol
socially. He denies any addiction, as is evident in his lack of drug- or alcohol-



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                                    No. 18-10633

related convictions. Because the record does not demonstrate that there is a
need for these special conditions or that they will advance the goals of the
sentencing factors in § 3553(a), these conditions are not reasonably related to
the § 3553(a) factors. See Alvarez, 880 F.3d at 241 (vacating condition requiring
mental-health treatment because “the record does not clearly substantiate . . .
a relationship” between the condition and the § 3553(a) factors); see also United
States v. Mahanera, 611 F. App’x 201, 204-05 (5th Cir. 2015) (unpublished)
(per curiam) (vacating condition requiring substance-abuse treatment where
record revealed no problems with drugs or alcohol); 1 United States v. Flores-
Guzman, 121 F. App’x 557, 558 (5th Cir. 2005) (unpublished) (per curiam)
(vacating no-alcohol condition as not reasonably related to the nature of the
offense, the defendant’s personal characteristics, or other § 3553(a) factors).
      Jordan’s substantial rights are affected because he is being subjected to
unwarranted special conditions that overly burden his time, finances, and
personal freedom, and create the perception that Jordan requires substance-
abuse treatment. See Alvarez, 880 F.3d at 241; Prieto, 801 F.3d at 553. We have
exercised our discretion to correct the inclusion of similar conditions, especially
where, as here, the defendant lacked notice of the conditions. See Alvarez, 880
F.3d at 242.
      Accordingly, we vacate the first and eighth special conditions of
supervised release. The conviction is AFFIRMED; the sentence is VACATED
IN PART; and the case is REMANDED for the district court to modify Jordan’s
special conditions to conform to this opinion.




      1Pursuant to 5TH CIR. R. 47.5.4, unpublished opinions issued on or after January 1,
1996 may be cited as persuasive authority. E.g., Alvarez, 880 F.3d at 240 n.1.


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