     Case: 18-20628       Document: 00515074007         Page: 1     Date Filed: 08/13/2019




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

                                     No. 18-20628                          FILED
                                   Summary Calendar                  August 13, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TAMNY DENISE WESTBROOKS, also known as Tammy Westbrooks, also
known as Tammy Westbrook,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-355-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Having been convicted for filing false tax returns, Tamny Denise
Westbrooks, on resentencing, was sentenced to 38 months’ imprisonment and
one year of supervised release. She challenges the imposition of a condition of
supervised release—also imposed at the original sentencing—requiring her to
participate in a mental-health program. Because Westbrooks objected to the



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-20628     Document: 00515074007      Page: 2   Date Filed: 08/13/2019


                                  No. 18-20628

imposition of the condition, review is for abuse of discretion. United States v.
Fernandez, 776 F.3d 344, 345 (5th Cir. 2015).
      For resentencing, the probation officer included the following in the
presentence investigation report (PSR), under the heading “Mental and
Emotional Health”: Westbrooks “advised that although she has been anxious
and stressed since agents arrived at the tax service business in preparation for
charging her with the instant offense, she has managed by relaxation and
exercise”; she had “strong feelings about the facts that were presented in her
trial, and believe[d] that the agent fabricated a lot of the evidence against her”;
“she believe[d] that her home phone [was] ‘tapped’ and that the agent who
handled her case [was] ‘out to get her’”; and, when the probation officer asked
her about attending counseling services, she advised she did not feel she
needed professional counseling, and was able to manage her anxiety. The
probation officer recommended participation in a mental-health program as a
special condition of supervised release, and justified it by explaining
Westbrooks “displayed signs of mental and emotional issues during a
discussion with this probation officer”.
      At the resentencing hearing, when the district court ordered Westbrooks
participate in a mental-health program, she objected that the requirement of
a mental-health treatment condition was not supported by any evidence. The
court considered the objection and denied it, explaining that, at some point in
the future, it might reconsider how much more mental help Westbrooks
needed. But, “given [her] history of complete defiance of the truth, the lying,
cheating, and dissembling and [her] other conduct”, the court found the
condition appropriate.
      In contesting the imposition of the special condition, Westbrooks
contends: the need for mental-health treatment was not supported by the



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                                  No. 18-20628

evidence; and the court did not explain how the special condition reasonably
related to the sentencing factors in 18 U.S.C. § 3553(a). Along that line, a
district court’s broad discretion to impose special conditions of supervised
release at sentencing is limited by three requirements. 18 U.S.C. § 3583(d);
Fernandez, 776 F.3d at 346.
      First, the special condition is required to be “reasonably related” to
certain factors in 18 U.S.C. § 3553(a) including: “the nature and circumstances
of the offense and the history and characteristics of . . . defendant”; deterrence
of criminal conduct; protection of the public; and providing defendant “with
needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner”. 18 U.S.C. § 3553(a)(1), (2)(B)–(D);
United States v. Alvarez, 880 F.3d 236, 239–40 (5th Cir. 2018).
      Second, a special condition must cause “no greater deprivation of liberty
than is reasonably necessary” to advance the goals of deterrence, public
protection, or needed corrective treatment. 18 U.S.C. § 3583(d)(2).
      Third, a special condition must be “consistent with any pertinent policy
statements” in the Sentencing Guidelines. 18 U.S.C. § 3583(d)(3). The policy
statement involving special conditions of supervised release recommends a
sentencing court impose a condition requiring defendant to participate in a
mental-health program approved by the United States Probation Office “[i]f
the court has reason to believe . . . defendant is in need of psychological or
psychiatric treatment”. U.S.S.G. § 5D1.3(d)(5).
      In addition to the three above statutory requirements, a district court
must “set forth factual findings to justify special probation conditions”. United
States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (internal quotation marks
and citation omitted). The court commits error by failing to explain its reasons
for imposing a special condition. Alvarez, 880 F.3d at 240–41.



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                                No. 18-20628

      “[A]bsent evidence that . . . defendant ‘has ever been diagnosed with or
treated for a mental health condition,’ a mental-health-treatment special
condition does not meet the three statutory requirements”. United States v.
Garrido, 751 F. App’x 479, 481–82 (5th Cir. 2018) (quoting Alvarez, 880 F.3d
at 240) (emphasis in original); see also United States v. Bree, 927 F.3d 856,
2019 WL 2520061, at *2–3 (5th Cir. 19 June 2019). The PSR does not contain
any evidence that Westbrooks had a diagnosis requiring mental-health
treatment, had ever been treated for a mental-health condition, or even had a
questionable mental-health history.
      “Our precedent requires specific record facts demonstrating mental
instability before a mental-health special condition may be imposed.” Bree,
2019 WL 2520061, at *3. The probation officer’s conclusion does not meet the
“clear requirement of an evinced pattern of ‘a questionable mental health
history or a particular diagnosis requiring mental health treatment’”. Id.
(quoting United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016).
      Westbrooks was released in early April 2019, and has begun her one-
year term of supervised release. For the foregoing reasons, the judgment is
MODIFIED by striking the mental-health special condition. In all other
respects, the judgment is AFFIRMED.




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