     Case: 16-40194   Document: 00513854710        Page: 1   Date Filed: 01/30/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 16-40194                           FILED
                                                                     January 30, 2017
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                           Clerk

             Plaintiff - Appellee

v.

ROLANDO MENDOZA-VELASQUEZ,

             Defendant - Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:
      This appeal arises from a district court’s judgment requiring Rolando
Mendoza-Velasquez to “participate in a mental health program” and “incur
costs associated with such program, based on ability to pay” as a special
condition of supervised release. The sole issue on appeal is whether the district
court committed reversible plain error by imposing this requirement. Because
Mendoza-Velasquez has not carried his burden of showing that he satisfies the
stringent requirements of the fourth prong of the plain error test, we AFFIRM.
                                         I.
      Mendoza-Velasquez pleaded guilty, pursuant to a written plea
agreement, to conspiracy to transport an illegal alien, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i).     Mendoza-Velasquez’s
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                                      No. 16-40194
presentence report (“PSR”) noted that he has: (1) a lengthy criminal history
involving offenses such as assault, robbery, theft, and drug violations; and (2)
a long history of substance abuse that includes daily use of alcohol, marijuana
laced with crack cocaine, ecstasy, LSD, cocaine, and Xanax bars. Additionally,
the PSR highlighted that Mendoza-Velasquez had engaged in “continued
criminal conduct” while awaiting sentencing in jail. Specifically, Mendoza-
Velasquez had gotten into an altercation and punched a detainee, leaving him
with a bloody eye and in need of emergency medical care. 1 Notably, however,
the PSR stated that Mendoza-Velasquez “reported no history of mental or
emotional health related problems and [Probation’s] investigation ha[d]
revealed no information to indicate otherwise.”
       The district court sentenced Mendoza-Velasquez to fifty-one months of
imprisonment and three years of supervised release. The court also imposed
several conditions of supervised release. Relevant to this appeal, the court
required Mendoza-Velasquez “to participate in a mental health program” and
“to incur [its] costs . . . based on [his] ability to pay.” Mendoza-Velasquez did
not object to this condition before the district court.
       Mendoza-Velasquez has timely appealed. He contends that the district
court committed reversible error by imposing the mental health condition.
                                            II.
       Because Mendoza-Velasquez did not object below to the district court’s
imposition of the mental health condition, this Court reviews that decision for
plain error. United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).



       1 At the sentencing hearing, the district court heard testimony that established that
the detainee Mendoza-Velasquez punched was a bystander trying to break up a fight between
Mendoza-Velasquez and another detainee over a television show.



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                                 No. 16-40194
                                       A.
      Mendoza-Velasquez asserts that the district court clearly erred by
imposing a condition that cannot be reasonably related to any of 18 U.S.C.
§ 3583(d)(1)’s sentencing factors, which § 3583(d) requires, because nothing in
the record suggests that Mendoza-Velasquez needs mental health treatment.
Moreover, there is no difference, Mendoza-Velasquez avers, between his case
and United States v. Garcia, 638 F. App’x 343 (5th Cir. 2016), a case in which
a district court imposed a similar condition on similar facts. In each case, the
imposition of the condition affected the appellant’s substantial rights because
each appellant was required to pay for mental health treatment if he could
afford to do so and had to deal with a public record indicating that he had a
mental condition requiring treatment. Further, each case merited the Court
exercising its discretion to remedy the district court’s error because “there are
significant autonomy and privacy concerns inherent in mental health
treatment” and there is “a potential stigma in being required by a court to
submit to mental health treatment.” Therefore, as in Garcia, the Court should
vacate the mental health condition the district court imposed and remand for
reconsideration of that condition.
      The Government counters that the district court did not commit any
error in imposing the mental health condition because the court’s reasoning
can be inferred from the record and the condition was reasonably related to the
statutory factors based on record evidence of Mendoza-Velasquez’s violent
character and history of using Xanax, an anti-anxiety medication. Moreover,
Garcia is distinguishable. And regardless of the merits of his arguments, the
Government maintains, Mendoza-Velasquez cannot prevail because he does
not satisfy the fourth prong of the plain error review analysis.




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                                   No. 16-40194
                                         B.
      To show reversible plain error, Mendoza-Velasquez bears the burden of
establishing each prong of a four-prong test. He must show “(1) an error (2)
that is clear or obvious, (3) that affects substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014) (citations omitted).
The Supreme Court has explained that “appellate-court authority to remedy
[an] error” under this test “is strictly circumscribed.” Puckett v. United States,
556 U.S. 129, 134 (2009). The standard mandates “considerable deference to
the district court” and focuses on “whether the severity of the error’s harm
demands reversal, . . . not whether the district court’s action . . . deserves
rebuke.” United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012)
(en banc) (citation and internal quotation marks omitted); United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007). After all, “plain-error review is not
a grading system for trial judges.” Henderson v. United States, 133 S. Ct. 1121,
1129 (2013).    The appellant’s burden, then, “is difficult, as it should be.”
Puckett, 556 U.S. at 135 (citation and internal quotation marks omitted).
      An appellant bears a particularly heavy burden to satisfy the “stringent
requirements” of the fourth prong of the plain error test. Escalante-Reyes, 689
F.3d at 423. “The Supreme Court recently highlighted” that this prong is “an
independent criterion that helps guard against any potential ‘floodgates’ of
plain error corrections.” United States v. Andaverde-Tinoco, 741 F.3d 509, 523
(5th Cir. 2013) (quoting Henderson, 133 S. Ct. at 1130). And this Court has
emphasized “that errors warranting fourth-prong correction are rare and
egregious” such that they “would shock the conscience of the common man,
serve as a powerful indictment against our system of justice, or seriously call
into question the competence or integrity of the district judge.” United States


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                                 No. 16-40194
v. Scott, 821 F.3d 562, 571 (5th Cir. 2016); United States v. Segura, 747 F.3d
323, 331 (5th Cir. 2014) (citation omitted).
      Ultimately, courts must look to “the degree of the error and the
particular facts of the case” to determine whether the appellant satisfied his
burden on the fourth prong of the plain error test because “a per se approach
to plain-error review is flawed.” Scott, 821 F.3d at 571–72 (citation omitted);
United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (quoting Puckett, 556
U.S. at 142). But this Court has recognized that “[t]he protracted nature of [a
defendant’s] criminality” counsels against “conclud[ing] that the district
court’s decision” violated the fourth prong. Segura, 747 F.3d at 331; see Prieto,
801 F.3d at 554; Weatherton, 567 F.3d at 153–54.            The Court has also
acknowledged that “a defendant faces an uphill battle when he seeks to
convince us that a modifiable condition” of supervised release satisfies the
fourth prong’s requirements because “the modifiable nature of [the] condition[]
. . . ‘works a less significant deprivation of liberty than [a condition] which
cannot be altered.’” Prieto, 801 F.3d at 554 (citations omitted); see also United
States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008); United States v. Padilla,
415 F.3d 211, 222–23 (1st Cir. 2005) (en banc).
                                       C.
      Mendoza-Velasquez has not shown that the district court committed
reversible plain error because he has not satisfied the stringent requirements
of the fourth prong of the plain error test, even assuming arguendo that he has
satisfied the first three prongs. The district court’s imposition of the mental
health condition here cannot be classified as a “rare and egregious” error that
“shock[s] the conscience of the common man, serve[s] as a powerful indictment
against our system of justice, or seriously call[s] into question the competence
or integrity of the district judge.” Scott, 821 F.3d at 571; Segura, 747 F.3d at


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                                  No. 16-40194
331 (citation omitted). Unlike the Garcia defendant, Mendoza-Velasquez was
not ordered to “participate in anger management counseling” as a special
condition of supervised release. Garcia, 638 F. App’x at 344. Additionally, the
record indicates that Mendoza-Velasquez has an extensive criminal history
stretching back to when he was fourteen years of age. This lengthy criminal
history counsels against the Court rectifying any error in this case. E.g., Prieto,
801 F.3d at 554; Segura, 747 F.3d at 331.
      Moreover, the mental health condition is modifiable, which “weighs
heavily” against finding that prong four has been satisfied. Prieto, 801 F.3d at
554. Mendoza-Velasquez is not, after all, without redress. Under 18 U.S.C.
§ 3583(e)(2), he may seek modification of the condition “at any time” during his
supervised release, and Fed. R. Crim. P. 32.1 allows a district court to hold a
hearing on modification.      “Encouraging this simple expedient to remedy
erroneously imposed conditions, rather than perpetuating expensive and time-
consuming appeals and resentencings, promotes the integrity and public
reputation of criminal proceedings.” Silvious, 512 F.3d at 371.
      In short, Mendoza-Velasquez “has not met his burden to persuade [the
Court] that [any] error resulted in a serious injustice.” Prieto, 801 F.3d at 554.
And “[o]n these facts, [the Court likely] cannot say that the district court’s
imposition of the [mental health condition] so seriously threatens the fairness,
integrity, or public reputation of the court system that [this Court] must correct
it.” Id. Therefore, plain-error correction is unwarranted.
                                       III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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