     Case: 14-51223      Document: 00513204297         Page: 1    Date Filed: 09/23/2015




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

                                                                                     FILED
                                                                              September 23, 2015
                                    No. 14-51223
                                  Summary Calendar                               Lyle W. Cayce
                                                                                      Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PELLY LEE MASON, also known as Perry Lee Mason. also known as Lee
James Mason,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-416-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pelly Lee Mason pleaded guilty to transporting a minor in interstate
commerce with the intent to engage in criminal sexual activity, a violation of
18 U.S.C. § 2423(a). He was sentenced to 405 months in prison and a life term
of supervised release. On appeal, he challenges only a special condition of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-51223     Document: 00513204297      Page: 2   Date Filed: 09/23/2015


                                  No. 14-51223

supervised release that requires him to “abstain from the use of alcohol and all
other intoxicants during the term of supervision.”
      “A district court has wide discretion in imposing terms and conditions of
supervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
We typically review special conditions of supervised release under a
“deferential abuse-of-discretion standard, pursuant to Gall [v. United States,
552 U.S. 38, 51 (2007)].” United States v. Rodriguez, 558 F.3d 408, 412 (5th
Cir. 2009). However, plain error review applies here because Mason made no
objection to the condition in the district court. See United States v. Phipps, 319
F.3d 177, 192 (5th Cir. 2003). Our review is therefore highly deferential to the
district court’s judgment. See United States v. Ellis, 720 F.3d 220, 227-28 (5th
Cir. 2013). To establish plain error, the appellant must show a forfeited error
that is clear or obvious that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). An error is not clear or obvious if it is subject
to reasonable debate. Id. If the appellant makes the requisite showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      A sentencing court has broad discretion in deciding what conditions of
supervised release to impose; nonetheless, the conditions
      must be reasonably related to . . . (1) the nature and circumstances
      of the offense and the history and characteristics of the defendant,
      (2) the need to afford adequate deterrence to criminal conduct,
      (3) the need to protect the public from further crimes of the
      defendant, and (4) the need to provide the defendant with
      needed . . . medical care, or other correctional treatment.
United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004) (internal quotation
marks and citations omitted). The deprivation of liberty imposed should not
exceed that needed to meet the latter three goals. Id.




                                        2
    Case: 14-51223     Document: 00513204297      Page: 3   Date Filed: 09/23/2015


                                  No. 14-51223

      The Presentence Report (PSR), which Mason did not challenge, reflected
Mason’s history of ill-health and longstanding problems with depression,
including suicidal ideation and attempted suicides (one as recently as two
weeks before the PSR interview).      It documented Mason’s repeated abuse of
the young minor involved in this case as well as a prior history of abusing
minors. He had a family history of substance abuse and was himself the victim
of child abuse. The PSR stated that Mason began using alcohol in 2007 after
receiving an insurance settlement. He drank alcohol daily for six months but
stopped drinking when he “ran out of the money.”
      Mason argues that his history does not support the supervised release
condition in question because it does not show a pattern of substance abuse or
current alcohol use. We conclude that, under the totality of Mason’s history
and characteristics taking into account the factors above, the district court’s
imposition of this condition is debatable. Accordingly, it cannot be plain error.
Puckett, 556 U.S. at 135 (to constitute plain error, “the legal error must be . . .
obvious, rather than subject to reasonable dispute”). Even if it were not
debatable, we conclude that, given that Mason will be more than 80 years old
when he is released some 27 years from now, it is “hard to say” at this point
that this term affects his substantial rights or supports exercise of our
discretion to correct any error. Phipps, 319 F.3d at 193-94 (5th Cir. 2003)
(defendants would not be released until they were nearly 60 years old after a
lengthy prison sentence so “it is hard to say that the special condition affects
their substantial rights or warrants the exercise of our . . . discretion”). Our
ruling here is without prejudice to Mason seeking a modification of his term
after his release if conditions warrant. 18 U.S.C. § 3583(e)(2).
      AFFIRMED.




                                        3
