     Case: 14-60214      Document: 00513073377         Page: 1    Date Filed: 06/10/2015




                           REVISED June 10, 2015

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

                                                                                FILED
                                      No. 14-60214                           June 1, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

OUSAINOU MAHANERA,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CR-67-1


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Ousainou Mahanera (“Mahanera”) appeals the
district court’s imposition of two special conditions for his supervised release.
The first challenged condition, Special Condition No. 4, requires him to
“participate in a program of testing and/or treatment for alcohol and/or drug



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60214
abuse as directed by the probation office.” The second, Special Condition No.
5, provides that he “shall not possess, ingest or otherwise use a synthetic
cannabinoid or other synthetic narcotic unless prescribed by a licensed medical
practitioner.” Because the district court did not explain how these conditions
reasonably relate to statutory factors, we conclude that it plainly erred in
imposing these conditions. Accordingly, we VACATE Special Conditions Nos.
4 and 5 and REMAND for the district court to reconsider whether to impose
them.
                              FACTS AND PROCEEDINGS
        Mahanera pleaded guilty to one count of trafficking in and attempting to
traffic in counterfeit goods. His Presentence Investigation Report (“PSR”)
describes the underlying offense. Specifically, during a traffic stop, he was
found with 105 counterfeit items. Numerous other counterfeit items were later
seized from a store that Mahanera apparently owned and managed.                         He
continued to communicate with his fiancée about the management of the shop
while he was in jail, and he lied about the state of his finances to the probation
officer who wrote his PSR.
        Mahanera told the probation officer that he did not drink alcohol or have
any history of illegal drug use. There is no evidence that he lied about this
fact, and the district court did not make a finding about its veracity. Moreover,
his PSR does not list any prior convictions or arrests for alcohol- or drug-
related offenses. 1       The PSR noted that the Sentencing Guidelines
recommended a term of supervised release of one to three years. But the PSR
did not recommend any special conditions for supervised release. Mahanera




        Mahanera’s sole prior conviction was a Louisiana state conviction for disturbing the
        1

peace, but the PSR contains no further details about the nature of that offense.
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objected to some portions of the PSR, but not the portion related to supervised
release.
      At Mahanera’s sentencing, his counsel announced that he and the
government had come to an agreement as to his objections. The district court
adopted the terms of the agreement. Ultimately, it sentenced him to 40 months
of imprisonment and three years of supervised release, and this prison term
was not appealed.
      The district court did not discuss Mahanera’s history of alcohol and drug
use. But it announced a number of special conditions of supervised release,
including the ones at issue here. In particular, the district court stated that
Mahanera “shall participate in a program of testing and/or treatment for
alcohol and/or drug abuse as directed by the probation office” (Special
Condition No. 4) and that he “shall not possess, ingest or otherwise use a
synthetic cannabinoid or other synthetic narcotic unless prescribed by a
licensed medical practitioner” (Special Condition No. 5). The district court did
not explain its rationale for including these special conditions, and Mahanera’s
counsel did not object to them.
                             STANDARD OF REVIEW
      Because Mahanera did not object to the imposition of the special
conditions, we review them for plain error. United States v. Weatherton, 567
F.3d 149, 152 (5th Cir. 2009). Mahanera can obtain relief under plain error
review only if: (1) there was an error; (2) that error was “clear or obvious, rather
than subject to reasonable dispute”; (3) the error “affected the appellant’s
substantial rights, which in the ordinary case means . . . it affected the outcome
of the district court proceedings”; and (4) we choose to exercise our discretion
to correct the error because “the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id. (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).
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                                        DISCUSSION
       A district court’s ability to impose special conditions of supervised
release is broad, but it is limited by statute. See United States v. Salazar, 743
F.3d 445, 451 (5th Cir. 2014). First, the conditions must be “reasonably related
to” (i) the “nature and circumstances of the offense and the history and
characteristics of the defendant,” (ii) the “need for the sentence imposed to
afford adequate deterrence to criminal conduct,” (iii) the “need for the sentence
imposed to protect the public from further crimes of the defendant”, or (iv) the
“need for the sentence imposed to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.”                    18 U.S.C. § 3583(d)(1); id.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); see also Salazar, 743 F.3d at 451
(providing that a condition only has to be reasonably related to one of the
factors, not all four).       Second, the conditions must “involve[ ] no greater
deprivation of liberty than is reasonably necessary for the purposes” of factors
(ii) through (iv) (i.e., deterrence, protection of the public, and rehabilitation).
18 U.S.C. § 3583(d)(2). Third, the conditions must be “consistent with any
pertinent policy statements issued by the Sentencing Commission.”                            Id.
§ 3583(d)(3).
       We have held that a district court “abused its discretion by not
explaining how [a special condition] is reasonably related to the statutory
factors.” 2 Salazar, 743 F.3d at 451. Here, the district court similarly abused
its discretion by imposing Special Conditions Nos. 4 and 5 without explaining



       2 Both a statute and case law require a district court to explain why it is imposing a
special condition. The statute provides that “[t]he court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c).
Moreover, “courts of appeals have consistently required district courts to set forth factual
findings to justify special probation conditions.” Salazar, 743 F.3d at 451 (internal quotation
marks omitted).
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                                      No. 14-60214
how they reasonably relate to the statutory factors. This error is clear and
obvious, given our (albeit recent) explicit holding on this point. See id.
       The next question is whether this plain error affected Mahanera’s
substantial rights. We conclude that it did because no evidence in the record
supports the imposition of the challenged special conditions. Again, the record
reveals no evidence that Mahanera has or had a drug or alcohol problem, and
his offense did not involve drug or alcohol use. Thus, Special Conditions Nos.
4 and 5 do not “reasonably relate to” the “nature and circumstances of the
offense and the history and characteristics of the defendant.”                  18 U.S.C.
§ 3583(d); id. § 3553(a)(1). For the same reason, these special conditions do
not “reasonably relate to” the need to protect society from Mahanera, the need
to deter him from committing further crimes, or his rehabilitative needs. Id.
§ 3583(d); id. § 3553(a)(2)(B), (a)(2)(C), (a)(2)(D).             After all, there is no
indication that his crime was driven by the use of addictive substances, that
he is likely to commit crimes due to the use of addictive substances in the
future, or that he needs help to avoid drugs or alcohol. 3 See Salazar, 743 F.3d
at 452–53.
       The government does not argue that the challenged special conditions
reasonably relate to the statutory conditions. Instead, it argues that Special
Conditions Nos. 4 and 5 should be upheld because Mahanera is not challenging
conditions that require him to subject himself to testing for controlled
substances and to refrain from possessing, using, purchasing, distributing, or




       3 The government argues that Special Condition No. 4, providing for drug and alcohol
testing and treatment, is meant to help Mahanera if any of his mandatory drug tests come
back positive. It would be hard to fault such a condition, given that it would be linked to
Mahanera’s developing rehabilitative needs. But the condition does not actually say that he
will only be required to submit to counseling if he tests positive for controlled substances.
Thus, given the lack of any present proof that Mahanera will need counseling, Special
Condition No. 4 is not reasonably related to his rehabilitative needs.
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administering controlled substances. According to the government, Special
Condition No. 4, requiring drug and/or alcohol treatment, is essentially a
corollary of these standard conditions. It also argues that Special Condition
No. 5, prohibiting the use of synthetic marijuana and synthetic narcotics, is
essentially just an extension of the condition prohibiting the possession or use
of controlled substances. We disagree. Special Conditions Nos. 4 and 5 impose
requirements that are distinct from the unchallenged standard conditions.
The district court was required to observe the statutory limitations for
imposing Special Conditions Nos. 4 and 5, regardless of whether these special
conditions were similar to conditions that Mahanera does not challenge. 4
       Thus, the imposition of Special Conditions Nos. 4 and 5 affected
Mahanera’s substantial rights by affecting the outcome of the district court
proceedings by allowing the judgment to contain unwarranted special
conditions. See Weatherton, 567 F.3d at 152. 5 The final question is whether
we will exercise our discretion to correct this error. We choose to do so.
“[W]hether a sentencing error seriously affects the fairness, integrity, or public
reputation of judicial proceedings is dependent upon the degree of the error
and the particular facts of the case.” United States v. John, 597 F.3d 263, 288
(5th Cir. 2010). Salazar makes quite clear that a district court must explain
how a special condition is related to the statutory factors, and the district court
here made no attempt to justify its imposition of Special Conditions Nos. 4 and


       4 Moreover, the conditions prohibiting the use and possession of controlled substances
and requiring controlled-substance testing are mandated for all defendants by statute, which
distinguishes those conditions from Special Conditions Nos. 4 and 5. See 18 U.S.C. § 3583(d).
       5 We note that, to the extent that synthetic marijuana and synthetic narcotics are

controlled substances, they are prohibited by the standard condition of supervised release
that Mahanera cannot “purchase, possess, use, distribute, or administer any controlled
substance . . . , except as prescribed by a physician.” Because the district court imposed both
conditions, it obviously assumed that some kinds of synthetic marijuana and narcotics are
not controlled substances. The government seemingly also assumes this.

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                                 No. 14-60214
5 under the statutory factors. In addition, we note that under the Guidelines,
Mahanera had zero criminal-history points; prior to his counterfeit-goods
trafficking conviction, Mahanera had only one 2009 state conviction for
disturbing the peace. Further, on plain error review, we vacated a similar
supervised release condition that prohibited “drinking or using any addictive
substances” because the condition did not comply with the statutory
requirements for imposing special conditions. United States v. Flores-Guzman,
121 F. App’x 557, 558 (5th Cir. 2005) (per curiam) (unpublished). Accordingly,
in light of the degree of the district court’s error and Mahanera’s lack of
substantial criminal history, we exercise our independent discretion in the
same way as did the panel in Flores-Guzman by correcting the error here.
                                 CONCLUSION
      Accordingly, we VACATE Special Conditions Nos. 4 and 5.                We
REMAND for further consideration in light of this opinion. Any resentencing
should be limited to reconsidering whether to impose Special Conditions Nos.
4 and 5 in light of any facts not already contained in the record.




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