     Case: 17-41081      Document: 00514684252         Page: 1    Date Filed: 10/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                      No. 17-41081                         Fifth Circuit

                                                                         FILED
                                                                   October 16, 2018
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

              Plaintiff−Appellee,

versus

MARIO ALBERTO GARRIDO,

              Defendant−Appellant.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                               No. 7:16-CR-1173-1




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Mario Garrido appeals two special conditions of his term of supervised
release (“SR”). We modify the sentence and affirm it as modified.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41081
                                           I.
      Police stopped Garrido for a traffic violation. When a drug-sniffing dog
indicated that the car contained drugs, the officers searched the trunk and
found five packages of cocaine. Garrido gave consent to search the rest of the
car, and police found another fourteen packages with cocaine. Garrido pleaded
guilty of possession with intent to distribute five or more kilograms of cocaine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. The district
court sentenced him to the statutory minimum of 120 months in prison, five
years of SR, and a $100 special assessment.

      The first special condition requires Garrido to “participate in a mental
health program as deemed necessary and approved by the probation officer”
and pay the costs of the program “based on [his] ability to pay as determined
by the probation officer.” The second requires participation “in a program,
inpatient or outpatient, for the treatment of drug and/or alcohol addiction,
dependency or abuse . . . as instructed and deemed necessary by the probation
officer.” 1 Garrido challenges both conditions as not supported by the record.

                                           II.
      Garrido did not object to the substance-abuse-treatment conditions in
the district court, so we review for plain error. United States v. Alvarez,
880 F.3d 236, 239 (5th Cir. 2018) (per curiam). To prevail, Garrido must show
that (1) there was an error not intentionally relinquished or abandoned; (2) the
error was plain; and (3) the error affects his substantial rights. See Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). If he meets that burden,
we have discretion to correct the error, but only if “allowing th[e] error to stand
seriously affects the fairness, integrity, or public reputation of judicial


      1Garrido’s brief acknowledges that no issue exists as to whether the district court
impermissibly delegated its Article III sentencing authority to the probation officer.
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                                 No. 17-41081
proceedings.” United States v. Duke, 788 F.3d 392, 396 (5th Cir. 2015) (per
curiam).

      Sentencing courts have broad discretion to impose special conditions of
SR, but that discretion is limited by three requirements. 18 U.S.C. § 3583(d);
Alvarez, 880 F.3d at 239. First, a special condition must be reasonably related
to “(1) the nature and circumstances of the offense and the history and char-
acteristics of the defendants”; (2) the need for the sentence adequately to deter
crime; (3) the need to protect the public; or (4) providing the defendant “with
needed” treatment “in the most effective manner.” 18 U.S.C. § 3553(a)(1),
(2)(B)–(D).

      Second, a special condition must “involve[] no greater deprivation of lib-
erty than is reasonably necessary” to advance the goals of deterrence, public
protection, or needed corrective treatment. 18 U.S.C. § 3583(d)(2). In other
words, a special condition must be “narrowly tailored” so as not to deprive the
defendant of more liberty than necessary to serve the goals in § 3553(a). Duke,
788 F.3d at 398.

      Third, a special condition must be “consistent with any pertinent policy
statements” in the United States Sentencing Guidelines.              18 U.S.C.
§ 3583(d)(3). Two apply here. The guidelines permit special conditions requir-
ing participation in an approved “mental health program” if “the court has
reason to believe that the defendant is in need of psychological or psychiatric
treatment.” U.S.S.G. MANUAL § 5D1.3(d)(5) (U.S. SENTENCING COMM’N 2016).
The guidelines also allow special conditions requiring participation in a pro-
gram “for substance abuse” if the “court has reason to believe that the defen-
dant is an abuser of narcotics, other controlled substances, or alcohol.” Id.
§ 5D1.3(d)(4).

      Besides these three requirements, the sentencing court must “state the
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                                      No. 17-41081
reasons for its imposition of the particular sentence.” United States v. Salazar,
743 F.3d 445, 451 (5th Cir. 2014) (internal quotation marks omitted) (citing
18 U.S.C. § 3553(c)). If the reasons are unclear, the reviewing court may try
to infer them from the record. See id.

                                            III.
       A district court commits plain error by imposing a mental-health-treat-
ment special condition of SR where there is an “absence of any record evidence
indicating that [the defendant] has a questionable mental health history or a
particular diagnosis requiring mental health treatment.” United States v. Gor-
don, 838 F.3d 597, 604 (5th Cir. 2016). That is because, absent evidence that
the defendant “has ever been diagnosed with or treated for a mental health
condition,” Alvarez, 880 F.3d at 240 (5th Cir. 2018) (emphases added), a
mental-health-treatment special condition does not meet the three statutory
requirements. 2

       The district court did not announce its reasons for imposing its well-
intended mental-health-treatment special condition. We thus look to the rec-
ord for evidence supporting it. See Salazar, 743 F.3d at 451.

       There is no evidence that Garrido has been diagnosed with or treated for
a mental health condition. All of the information about his mental condition
comes from the PSR, which states that Garrido (1) self-reported “experienc[ing]
mild depression while in custody” and (2) attended counseling as a child in
school because of behavioral issues. He also reported that he has experienced
some fainting spells and hair loss.            Evidence of self-reported depression,


       2 See Alvarez, 880 F.3d at 240 (vacating a mental-health-treatment condition as
plainly erroneous where the record showed that the defendant had suffered trauma and
abuse but did not indicate diagnosis of or treatment for a mental health condition); Gordon,
838 F.3d at 604–05 (holding that evidence of a history of anger and violence untied to a spe-
cific mental health condition could not support a mental-health-treatment special condition).
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                                      No. 17-41081
behavioral troubles as a school child, and physical symptoms that may or may
not relate to Garrido’s mental health is not the kind of direct evidence that the
caselaw requires to show a reasonable relation to the factors in § 3553(a).

       Garrido has demonstrated that the error affects his substantial rights.
It “require[s] him to attend multiple sets of treatment” and creates “an unwar-
ranted perception that he requires mental health treatment.”                      Gordon,
838 F.3d at 605. The government concedes both of these effects. Prong three
of plain-error review is satisfied.

       What remains is whether the error “seriously affects the fairness, integ-
rity or public reputation of judicial proceedings,” United States v. Olano,
507 U.S. 725, 732 (1993) (internal quotation marks omitted), such that we
should exercise our discretion to vacate the special condition. “[W]e do not view
the fourth prong as automatic if the other three prongs are met.” United States
v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc). Instead, “we
look to the degree of the error and the particular facts of the case to determine
whether to exercise our discretion.”             United States v. Avalos–Martinez,
700 F.3d 148, 154 (5th Cir. 2012) (per curiam) (internal quotation marks
omitted).

       We have consistently vacated plainly erroneous mental-health special
conditions where “there was no indication from the PSR or discussion at the
sentencing hearings that the district court was considering imposing a mental
health special condition.” Alvarez, 880 F.3d at 242; see also, e.g., Gordon,
838 F.3d at 604–05. That is the situation here. It is also appropriate for us to
correct a judgment imposing a special condition that is insufficiently supported
by the record. 3


       3See Gordon, 838 F.3d at 605; Garcia, 638 F. App’x at 346 (vacating where it was “not
obvious from the record that there [was] a basis for the mental health condition”).
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                                  No. 17-41081
      The government urges us to uphold the special condition on the ground
that “Garrido’s extremely recidivistic history demonstrates his gross disrespect
for the law and the danger he poses to the public.” That approach is invalid in
the wake of Rosales-Mireles v. United States, 138 S. Ct. 1897, 1910 n.5 (2018),
which disallows criminal history as a factor in exercising discretion under the
fourth prong. And aside from criminal history, the circumstances here are
much like those in which we have vacated mental-health special conditions.
See Alvarez, 880 F.3d at 242; Gordon, 838 F.3d at 604–05; Garcia, 638 F. App’x
at 347. Accordingly, we exercise our discretion to vacate the mental-health
special condition.

                                         IV.
      The district court, with the best of intentions, said it would recommend
that the BOP place Garrido in a facility with services for drug or alcohol abuse,
referencing that Garrido claimed “that he was using drugs when he was very
young.” The court observed that the PSR “says that he was snorting cocaine
when he was 12 years old.” Still, the court was uncertain as to present drug
use, concluding by encouraging Garrido to “get[] rid of the drug habit, if there
is one, while in custody.” Even so, based on these impressions, the court found
it “appropriate” to recommend placement in a facility where Garrido could
receive treatment for drug or alcohol abuse, but it did not specifically state why
it was imposing the special condition.

      The referenced statement about Garrido’s snorting cocaine as a twelve-
year-old is not in the record. The court may have mistakenly derived it from
the clause that Garrido has been “scouting, transporting, and storing nar-
cotics” since he was twelve. There is no evidence that Garrido has ever used
drugs, much less abused them. In fact, he has “denied the use of or experimen-
tation with alcohol or any illicit substance,” and nothing in the record suggests

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                                 No. 17-41081
that he is lying. He has never been indicted for an alcohol- or drug-related
offense. The government points to an incident in which Garrido was pulled
over for broken headlamps, and a police officer smelled “a strong odor of mari-
juana” emanating from the vehicle. Garrido denied that he had used mari-
juana, saying that the passengers had smoked it earlier that evening. That
incident resulted in a charge for possession of a prohibited weapon, not drug
use or possession.

      This court has vacated a special condition requiring drug-abuse treat-
ment where there was no evidence suggesting that the defendant had abused
drugs. See United States v. Mahanera, 611 F. App’x 201 (5th Cir. 2015) (per
curiam). As in that case, “there is no indication that [Garrido’s] 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.” Id. at 204. Given the lack of record evidence demon-
strating past drug or alcohol abuse, the special condition does not “reasonably
relate to” the factors in § 3553(a)(2). As with the mental-health-treatment
special condition, this error prejudiced Garrido in that he was “subjected to
[an] unwarranted special condition, because no record evidence reveals any
justification for the condition.” United States v. Prieto, 801 F.3d 547, 553 (5th
Cir. 2015) (per curiam).

      We turn once again to the fourth prong of plain-error review. “Sentences
based upon erroneous and material information or assumptions violate due
process.” United States v. Tobias, 662 F.2d 381, 388 (5th Cir. Unit B Nov. 1981)
(citing Townsend v. Burke, 334 U.S. 736, 740 (1948)). The district court relied
on a mistaken reading of the record that Garrido had snorted cocaine as a
twelve-year old. That misinformation was material: The court cited it as a
part of imposing a special condition on SR. We exercise our discretion to vacate

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                                  No. 17-41081
the special condition.

      The judgment of sentence is MODIFIED by striking both special con-
ditions from the order of SR. In all other respects, the judgment is AFFIRMED.




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