     Case: 18-40360         Document: 00515002494         Page: 1     Date Filed: 06/19/2019




              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                        No. 18-40360                   United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                          June 19, 2019
UNITED STATES OF AMERICA,
                                                                         Lyle W. Cayce
                Plaintiff–Appellee,                                           Clerk


v.

KELVIN LEWIS BREE,

                Defendant–Appellant.


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



Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
Judge. *

DON R. WILLETT, Circuit Judge:
      Kelvin Lewis Bree contends that the district court erred in mandating,
as a special condition of supervised release, that he participate in a mental-
health treatment program “because of [his] substance problems.” We agree
that the mental-health special condition is unsupported by the record and
constitutes reversible plain error. We MODIFY the sentence by striking the
mental-health condition and AFFIRM the sentence as modified.




      *   District Judge of the Northern District of Mississippi, sitting by designation.
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                                No. 18-40360
                                      I
     In October 2017, a Border Patrol agent stopped then-57-year-old Bree at
the Sarita checkpoint on the U.S.–Mexico border. The agent’s canine
companion sniffed out several bundles of marijuana and cocaine hidden
beneath a seat in Bree’s truck. Bree was promptly charged with two counts of
drug possession with intent to distribute. As part of a plea agreement, Bree
pleaded guilty to the first count, and the second count was waived by
government motion.
      Bree’s presentence report (PSR) covered his rather extensive criminal
history. Under “Mental and Emotional Health,” the PSR noted:
      In addition to mental and emotional health problems pertaining to
      drug and/or alcohol abuse noted in the next paragraph, the
      defendant reported a suicide attempt. The defendant stated that
      at approximately age 18 or 19, he was in an unhealthy relationship
      with the mother of his oldest child and recalled taking more than
      the prescribed amount of an unknown medication. When asked if
      he was trying to cause himself harm at the time, the defendant
      stated that he probably was. Bree went on to say that he was
      “young and being stupid.”
The PSR also reported that Bree began consuming alcohol and experimenting
with drugs at age 14. He stopped using marijuana around 1981 and stopped
drinking alcohol in 1992. He also used cocaine daily from 1988 until 1998 but
quit after participating in a substance abuse program while incarcerated. In a
sealed appendix, the PSR recommended “mental health treatment” and
“substance abuse treatment.”
      The district court sentenced Bree to 70 months imprisonment and 4
years supervised release. As part of his supervised release, the court imposed
special conditions requiring “mental health treatment because of [Bree’s]
substance problems, and substance abuse treatment as to in-abstinence.” Both
special conditions required Bree to participate in and pay for a treatment
program, under the supervision of a probation officer. The mental-health
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                                     No. 18-40360
condition further required Bree to purchase and take any medications
prescribed by a physician while being treated. Bree timely appealed,
challenging only the mental-health condition.

                                            II
      Because Bree failed to object to his sentence in the trial court, we review
for plain error. 1 To prevail, Bree must demonstrate that (1) the district court
erred, (2) the error was plain, (3) the plain error affected his substantial rights,
and (4) allowing the plain error to stand would “seriously affect the fairness,
integrity, or public reputation of judicial proceedings.” 2 Clearing the plain-
error hurdle is “difficult, as it should be.” 3 But Bree does so here.
                                            A
      Sentencing courts possess “broad discretion to impose special conditions
of supervised release.” 4 This discretion, though, is limited by two laws.
      First, under 18 U.S.C. § 3583(d), special conditions must be “reasonably
related” to one of the following four factors, found in 18 U.S.C. § 3553(a):
      (1) the nature and characteristics of the offense and the history and
      characteristics of the defendant; (2) the need for the sentence
      imposed to afford adequate deterrence to criminal conduct; (3) the
      need for the sentence imposed to protect the public from further
      crimes of the defendant; and (4) 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.

      Second, a special condition must “involve[] no greater deprivation of
liberty than is reasonably necessary” to advance the last three § 3553(a) factors
and must be “consistent with any pertinent policy statements issued by the



      1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam).
      2 Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up).
      3 Id.
      4 Alvarez, 880 F.3d at 239.

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                                      No. 18-40360
Sentencing Commission.” 5 The Commission has recognized that imposing a
special condition requiring mental-health treatment is appropriate when “the
court has reason to believe that the defendant is in need of psychological or
psychiatric treatment.” 6
      We begin with the district court’s stated reasons. Section 3553(a)
requires a sentencing court to “state in open court the reasons for its imposition
of the particular sentence.” 7 Four years ago in United States v. Caravayo, we
clarified that these reasons must be in the form of a “factual finding or
otherwise evident from the record.” 8 And they must show that the special
condition is “tailored to the individual defendant.” 9 If not, then we usually
recognize plain error and vacate the contested condition. 10 And if the court
doesn’t provide reasons. or if its reasons are unclear, we may independently
review the record for evidence that could justify a special condition. 11
      The district court pointed to Bree’s “substance problems” to justify the
mental-health treatment condition.” We start by evaluating this reason under
§ 3553(c).
      By itself, a history of substance abuse doesn’t justify imposing a mental-
health condition under § 3553(a). As we explained recently in United States v.
Gordon, a mental-health special condition should not be imposed absent
“record evidence indicating that [the defendant] has a questionable mental
health history or a particular diagnosis requiring mental health treatment.” 12
Basing such a condition on “substance problems” would not be “tailored,” but



      5 18 U.S.C. § 3583(d)(2), (d)(3).
      6 U.S.S.G. § 5D1.3(d)(5).
      7 18 U.S.C. § 3553(c).
      8 809 F.3d 269, 276 (5th Cir. 2015).
      9 Id.
      10 Id.; see also Alvarez, 880 F.3d at 240.
      11 See United States v. Salazar, 743 F.3d 445, 451-53 (5th Cir. 2014).
      12 838 F.3d 597, 604 (5th Cir. 2016); see also Alvarez, 880 F.3d at 240–41.

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                                      No. 18-40360
ill-fitting. 13 The district court’s stated reason doesn’t show why the mental-
health condition was “reasonably necessary” to deter crime, protect the public,
or provide needed treatment. 14 The trial court already imposed a special
condition of substance-abuse counseling for Bree’s “in-abstinence.” This is a
better way to address Bree’s “substance problems.”
       Because     the    district   court’s       stated    reasoning    was    scant,   we
independently review the record for sufficient evidence to support a mental-
health special condition. After all, the mere possibility that the court could
have imposed a less restrictive alternative based on its stated reasoning “is not
necessarily fatal” to a special condition. 15 Rather, the condition should appear
reasonably necessary based on record evidence. 16
       But this record cannot redeem the district court’s decision. The PSR
never stated that Bree had previously been diagnosed with a mental disorder. 17
And a suicide attempt 40 years before Bree’s offense doesn’t satisfy Gordon’s
history-of-mental-problems standard. 18
       The Government suggests that when Bree lost his job he may have fallen
into depression; if so, he’d need mental-health treatment. This doesn’t sway us.
Our precedent requires specific record facts demonstrating mental instability
before a mental-health special condition may be imposed. 19 Unadorned
speculation isn’t enough.




       13 Caravayo, 809 F.3d at 276.
       14 18 U.S.C. § 3583(d)(2).
       15 Caravayo, 809 F.3d at 276.
       16 Id.
       17 See Gordon, 838 F.3d at 604.
       18 Id. Even the unpublished outer limits of our jurisprudence require some discernible

trend of mental imbalance to warrant imposing a mental-health condition. United States v.
Rocha, 732 F. App’x 291, 296 (5th Cir. 2018) (holding record testimony of defendant’s
mentally suspect activity sufficient for a mental-health condition).
       19 Gordon, 838 F.3d at 604.

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                                     No. 18-40360
      The Government also tries to establish a parallel between the probation
officer’s PSR notes about Bree’s criminal history and the plaintiff’s alleged
mental lapses in our unpublished 2018 case, United States v. Rocha. 20 Yet the
PSR does not base its mental-health-treatment recommendation on Bree’s past
crimes. In any event, the probation officer’s recommendation is not a specific
record fact, but a conclusion drawn from the facts. And the officer’s conclusion
doesn’t jibe with Gordon’s clear requirement of an evinced pattern of “a
questionable mental health history or a particular diagnosis requiring mental
health treatment.” 21
      Absent additional evidence that Bree’s mental state is weakened, the
mental-health condition is overly burdensome and runs afoul of § 3583(d)(2)’s
prohibition against unduly restrictive special conditions. The district court
plainly erred.
                                          B
      We next consider whether the district court’s plain error affected Bree’s
substantial rights. The challenged condition required Bree to “pay the cost” for
any mental-health treatment. Bree’s participation in a court-ordered mental-
health program also “may require a significant commitment of time” and
“creates a possibly unwarranted perception that [he] requires mental health
treatment.” 22 The district court’s error encroached unreasonably on Bree’s time
and financial resources, and possibly harmed his reputation.
      The Government argues that Bree probably wouldn’t end up paying for
mental-health treatment anyway since he’s a man of meager means. We do not
share the Government’s nonchalance. Whatever money Bree has, it is his. Nor




      20 732 F. App’x at 292.
      21 838 F.3d at 604.
      22 Alvarez, 880 F.3d at 241.

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                                      No. 18-40360
does the Government adequately rebut the violation of Bree’s other substantial
rights.
                                             C
      Even if a sentencing court’s plain error affects a defendant’s substantial
rights, we will only exercise our discretion to correct the error if it seriously
harms “the fairness, integrity, or public reputation of judicial proceedings.” 23
Initially, this seems like a close call. After all, we didn’t vacate the mental-
health conditions in United States v. Mendoza-Valasquez, explaining that the
defendant has “an extensive criminal history,” and the district court can
modify the condition later. 24
      But Mendoza-Velszquez is distinguishable from Bree’s situation. First,
Mendoza-Velasquez was decided under the now-overruled “shocks the
conscience” standard that we previously (and incorrectly) used as shorthand
for the fourth plain-error prong. 25 Second, the Supreme Court recently ruled in
Rosales-Mirales that criminal history simply isn’t relevant to that prong. 26
Third, we held in Alvarez that “the ability . . . to modify a special condition is
only one factor considered as we determine whether to exercise our
discretion.” 27 In other cases where the district court has imposed a plainly
erroneous mental-health condition, we exercised our discretion to strike the
contested condition simply because it touched on “significant autonomy and
privacy concerns.” 28 Those concerns are front and center in Bree’s case.




      23 Puckett, 556 U.S. at 135.
      24 847 F.3d 209, 213 (5th Cir. 2017).
      25 See id.; see also Rosales-Mirales v. United States, 138 S. Ct. 1897, 1906–07 (2018).
      26 Rosales-Mirales, 138 S. Ct. at 1910 n.5.
      27 Alvarez, 880 F.3d at 242.
      28 See id.; see also Gordon, 838 F.3d at 605.

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                                     No. 18-40360
                                           III
       The district court committed plain error. But because Bree’s challenge is
limited to a single special condition of his sentence, we decline to remand for
resentencing. In similar situations, we have instead modified the district
court’s sentence and affirmed the sentence as modified. 29 We do the same here.
       The judgment of sentence is MODIFIED by striking the mental-health
special condition. In all other respects, the judgment is AFFIRMED.




       29 E.g., United States v. De Jesus-Batres, 410 F.3d 154, 166 (5th Cir. 2005); United
States v. Fields, 247 F.3d 240, 240 (5th Cir. 2001) (per curiam).
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