    Case: 17-20541   Document: 00515055128    Page: 1   Date Filed: 07/30/2019




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

                                                               FILED
                               No. 17-20541                July 30, 2019
                                                          Lyle W. Cayce
                                                               Clerk
UNITED STATES OF AMERICA,

                                        Plaintiff–Appellee,

versus

JUSTICE DANIEL;
LETRISHIA A. ANDREWS, also known as Letrishia Ann Andrews,
also known as Letrishia Andrews Daniel,

                                        Defendants–Appellants.

                               * * * * *


                               No. 17-20543


UNITED STATES OF AMERICA,

                                        Plaintiff–Appellee,

versus

FOLARIN H. ALABI,
also known as Folarin Henry Alabi, also known as Henry,

                                        Defendant–Appellant.


               Appeals from the United States District Court
                    for the Southern District of Texas
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                                  No. 17-20541
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

        Folarin Alabi, Justice Daniel, and Letrishia Andrews were convicted of
crimes related to their involvement in a marriage-fraud conspiracy. They
appeal, raising issues regarding their convictions and sentences. We affirm.

                                       I.
        Co-conspirators recruited U.S. citizens to marry Nigerian nationals so
that the Nigerians could obtain legal immigration status. U.S. Citizenship and
Immigration Services (“CIS”) uncovered the conspiracy and, together with the
Department of Homeland Security (“DHS”), investigated.

        CIS Officers Anna Lam and Marva Hebert reviewed the files for Daniel
and others and determined that their marriages to U.S. citizens were fraudu-
lent.    The investigation included examination of immigration petitions,
applications, documentation, pictures, when and with whom the alien entered
the United States, when the couple got married, when they applied for immi-
gration benefits, their ages, whether they were living together, and whether
the couple had children together or with someone else during the marriage.
DHS Agent Ramon Oyegbola conducted a second investigation and agreed that
the marriages were fraudulent, forming that judgment after surveilling the
suspected individuals’ residences, examining documents, and interviewing the
suspects and other connected people.

        Alabi was charged with two counts of aiding and abetting marriage fraud
in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 2. The count that proceeded
to trial charged that Alabi had aided and abetted the marriage of Daniel for
the purpose of evading U.S. immigration law. Daniel was charged with one
count of marriage fraud in violation of 8 U.S.C. § 1325(c).       Andrews was

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                                  No. 17-20541
charged with one count of aiding and abetting marriage fraud in violation of
8 U.S.C. § 1325(c) and 18 U.S.C. § 2, one count of theft of government money
in violation of 18 U.S.C. § 641, and two counts of making false statements
related to Supplemental Nutrition Assistance Program benefits in violation of
8 U.S.C. § 1001(a)(3). All three defendants were also charged with conspiracy
to commit marriage fraud in violation of 8 U.S.C. § 1325(c) and 18 U.S.C. § 371.

                                       II.
      After a joint trial, the jury convicted on all counts. The district court
sentenced Alabi to 18 months’ imprisonment and one year of supervised release
(“SR”); and Andrews to 24 months’ imprisonment, three years of SR, $5629 in
restitution, and a $500 special assessment, and imposed, among others, a spe-
cial condition of SR requiring her “not knowingly [to] purchase, possess, dis-
tribute, administer, or otherwise use any psychoactive substances, including
synthetic marijuana or bath salts, that impair a person’s physical or mental
functioning, whether or not intended for human consumption, except as with
the prior approval of the probation officer.”

      Alabi (1) challenges the sufficiency of the evidence to support the verdict
that he conspired to commit marriage fraud and aided and abetted marriage
fraud and (2) contends that the district court erred in denying his proposed
jury instruction “that would [have] require[d] the jury to find that [he] intended
to evade the immigration law at the time the marriage was entered.” Daniel
avers that the court erred in refusing to sever his case from Andrews’s.
Andrews maintains that the court erred in imposing the psychoactive-
substances special condition.




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                                 No. 17-20541
                                      III.
                                      A.
      Alabi asserts that “[t]he evidence was insufficient to prove that [he]
knowingly entered the conspiracy to commit immigration fraud or to aid and
abet immigration fraud.” He maintains that neither the testimony of Anisha
Gable, another co-conspirator, nor the immigration agents’ testimony, includ-
ing the evidence of red flags indicative of marriage fraud that were present in
Daniel’s marriage, supported that Alabi intended to join the conspiracy or
knew of Daniel’s and Andrews’s intent to evade the immigration laws by
marrying. Alabi attacks Gable’s testimony as uncorroborated and circum-
stantial and therefore insufficient to support the inference that he had the
requisite knowledge and intent to join the conspiracy.       He also rehashes
impeaching evidence against Gable.

      Alabi repeatedly mentions his view that absent evidence he received
money to introduce a U.S. citizen to a Nigerian for marriage purposes, the
requisite intent is not shown. Alabi further maintains that “[t]he indicators of
fraud discovered by investigators . . . were false statement and altered docu-
ments that were submitted after the marriage,” but “there was no evidence
that [he] had any involvement or knowledge” of those documents when the
marriage was entered into. He urges that “there was no evidence that [he] was
involved with submitting documents connected to any of the marriages in this
case or that [he] instructed or directed others about how to submit these
documents that were determined to be indicative of fraud.” Consequently,
“[t]he evidence was . . . insufficient to support an inference that Alabi knew
about the conspiracy and intentionally joined the conspiracy.”

      Regarding his conviction for aiding and abetting marriage fraud, Alabi
contends that the evidence was insufficient “because there was no evidence

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                                 No. 17-20541
that he actively participated in Daniel’s marriage for the purpose of evading
the immigration laws.” He denies that the evidence demonstrated “that he
shared Daniel[’s] intent to violate the immigration laws.”

                                       1.
      “We review challenges to the sufficiency of the evidence de novo” but are
“nevertheless highly deferential to the verdict.” United States v. Chapman,
851 F.3d 363, 376 (5th Cir. 2017) (internal quotation marks and citation
omitted). “[W]e consider all evidence presented and all inferences reasonably
drawn therefrom in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Vinagre-Hernandez,
925 F.3d 761, 764 (5th Cir. 2019) (internal quotation marks and citation
omitted). “[A] defendant seeking reversal on the basis of insufficient evidence
swims upstream.” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).

                                       2.
      “To prove a conspiracy under 18 U.S.C. § 371, the government ha[s] to
prove (1) an agreement between two or more persons to pursue an unlawful
objective; (2) the defendant’s knowledge of the unlawful objective and volun-
tary agreement to join the conspiracy; and (3) an overt act by one or more of
the members of the conspiracy in furtherance of the objective of the conspir-
acy.” United States v. Ongaga, 820 F.3d 152, 157 (5th Cir. 2016) (citation omit-
ted). “An agreement may be inferred from concert of action, voluntary partici-
pation may be inferred from a collocation of circumstances, and knowledge may
be inferred from surrounding circumstances.” United States v. Bieganowski,
313 F.3d 264, 277 (5th Cir. 2002) (cleaned up and citation omitted).

      Title 8 U.S.C. § 1325(c) states that “[a]ny individual who knowingly

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                                 No. 17-20541
enters into a marriage for the purpose of evading any provision of the immi-
gration laws shall be imprisoned for not more than 5 years, or fined not more
than $250,000, or both.” To prove marriage fraud, the government must show
“only that the defendant (1) knowingly entered into a marriage (2) for the pur-
pose of evading any provision of the immigration laws.” Ongaga, 820 F.3d
at 160.

      “The federal aiding and abetting statute, 18 U.S.C. § 2, states that a
person who . . . aids, abets, counsels, commands, induces or procures . . . the
commission of a federal offense is punishable as a principal.” Rosemond v.
United States, 572 U.S. 65, 70 (2014) (internal quotation marks omitted). “[A]
person is liable under § 2 for aiding and abetting a crime if (and only if) he
(1) takes an affirmative act in furtherance of that offense, (2) with the intent
of facilitating the offense’s commission.” Id. at 71. The statute “comprehends
all assistance rendered by words, acts, encouragement, support, or pres-
ence, . . . even if that aid relates to only one (or some) of a crime’s phases or
elements.” Id. at 73 (internal quotations marks and citation omitted).

                                       3.
      The evidence was sufficient to support the verdict that Alabi knowingly
entered the conspiracy to commit, and knowingly aided and abetted, marriage
fraud. As for the conspiracy to commit marriage fraud, Gable, referring to
herself and Alabi as “the arrangers,” testified that she and Alabi had arranged
about ten to fifteen marriages between U.S. citizens and Nigerian nationals.
Gable met Alabi when he and a third party visited Gable’s house to appraise
her for a sham marriage to a Nigerian, sometime after which they began work-
ing together. Alabi was the person who taught Gable how the marriage scheme
worked, instructing her how to answer potential questions immigration offi-
cials might ask during the interview process, where to obtain documents, and

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                                  No. 17-20541
how to find a judge for the marriages.

      Alabi would find the Nigerians, and Gable would recruit the U.S. citizens
to marry them. Gable would assist the sham couples in their fraud, showing
them where to get a marriage license in the courthouse, taking pictures of the
wedding, and obtaining copies of the marriage certificate. Alabi paid Gable to
take pictures of the weddings as documentation to be submitted as part of the
immigration process. Shakietha Joseph, a U.S. citizen who had previously
pleaded guilty of committing marriage fraud by marrying a Nigerian national
through the same conspiracy at issue here, corroborated that Alabi was active
in the marriage-fraud conspiracy and arranged fraudulent marriages.

      As for Alabi’s conviction of aiding and abetting marriage fraud, Gable
testified that she and Alabi had arranged Daniel’s and Andrews’s marriage to
each other. Alabi recruited Daniel, Daniel and Andrews met and agreed to get
married, and Daniel agreed to pay Andrews $5500 in return for getting his
U.S. citizenship. Daniel and Andrews married on June 14, 2013. They did not
cohabitate, but they did file the necessary immigration documents to obtain
U.S. resident status or citizenship and attended an immigration interview.

      Viewing this evidence and all inferences reasonably drawn therefrom in
the light most favorable to the verdict, a rational trier of fact could have found,
beyond a reasonable doubt, the essential elements of conspiracy to commit
marriage fraud and aiding and abetting Daniel’s marriage fraud. Faced with
that evidence, Alabi nevertheless contends that it is insufficient to support his
conviction. Each of his challenges fails.

      First, contrary to Alabi’s contention, because “all of the elements of mar-
riage fraud are satisfied when the defendant enters into the marriage,” he did
not have to be involved with or know about the fraudulent documents that the
sham couples submitted to immigration officials. Ongaga, 820 F.3d at 160.
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                                       No. 17-20541
       Second, neither Gable nor any other witness had to testify directly that
Alabi knew the sham couples intended to evade the immigration laws. The
jury was entitled to rely on circumstantial evidence. 1

       Third, Alabi’s attempt to undermine Gable’s credibility on appeal is un-
availing. This court “ha[s] repeatedly stated that the jury is the final arbiter
of the credibility of witnesses.” United States v. Seale, 600 F.3d 473, 496 n.12
(5th Cir. 2010) (citation omitted).          The jury convicted Alabi after hearing
Gable’s testimony and thus made its credibility determination.

                                              B.
       Alabi also contends that the district court erred in denying his proposed
jury instruction “that would [have] require[d] the jury to find that [he] intended
to evade the immigration laws at the time the marriage was entered into.” He
explains that “[b]ecause the offense of marriage fraud is complete upon entry
into the marriage, the intent to enter the marriage for the purpose of evading
the immigration laws must exist when the marriage is entered.” Therefore, he
protests that “[m]uch of the evidence at trial focused on the submission of
documents after the marriage to prove the intent of the parties at the time they
entered the marriage,” so by not giving Alabi’s proposed instruction, the court
“hindered [his] ability to present his defense to the charges that he did not
possess the requisite intent to violate the marriage fraud statute.”

       Alabi reiterates that “[t]he evidence against [him] was limited to the
uncorroborated accomplice testimony of . . . Gable” and documents submitted
after Daniel and Andrews entered the sham marriage. Therefore, the district
court’s alleged error in not giving his proposed jury instruction was not


       1 See United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014) (“Direct evidence of a
conspiracy is unnecessary; each element may be inferred from circumstantial evidence.”
(citation omitted)).
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                                  No. 17-20541
harmless, he says, because it “hindered [his] ability to mount a defense . . . and
created a risk that juror[s] would place undue weight on the evidence of events
after the marriages were entered into [to] determine whether Alabi had the
requisite intent to violate the statute.” Alabi states that the district court
erroneously denied his instruction that “was a correct statement of the law and
was relevant to the central issue” of the case, and thus “prejudiced [his] ability
to present his defense.”
                                        1.
      “We review a challenge to jury instructions for abuse of discretion, afford-
ing the trial court substantial latitude in describing the law to the jurors.”
United States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011) (internal
quotation marks and citation omitted). We examine “whether the charge, as a
whole, was a correct statement of the law and whether it clearly instructed the
jurors as to the principles of the law applicable to the factual issues confronting
them.” Id. (citation omitted). A district court reversibly errs in refusing to give
a defendant’s proposed instruction “where (1) the requested instruction is
substantially correct; (2) the requested issue is not substantially covered in the
charge; and (3) the instruction concerns an important point in the trial so that
the failure to give it seriously impaired the defendant’s ability to effectively
present a given defense.” Id. (internal quotation marks and citation omitted).

                                        2.
      Alabi fails to overcome his substantial burden to demonstrate that the
district court abused its discretion in denying his proposed jury instruction.
Contrary to Alabi’s contention, the court’s instructions, as a whole, were a
correct statement of the law and plainly instructed jurors regarding the
principles of the law applicable to the factual issues confronting them.

      Title 8 U.S.C. § 1325(c) requires the government, to convict of marriage

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                                       No. 17-20541
fraud, to prove beyond a reasonable doubt that the defendant “knowingly
enter[ed] into a marriage for the purpose of evading any provision of the immi-
gration laws.” The instructions charged the jury that to convict Alabi of con-
spiracy to commit marriage fraud and aiding and abetting marriage fraud, it
needed to find “that a noncitizen knowingly married a United States citizen;
and . . . that the marriage was knowingly entered into for the purpose of hav-
ing the noncitizen evade a provision of the immigration laws of the United
States.” The court also explained that “knowingly” “means that the act was
done voluntarily and intentionally, not because of mistake or accident.” The
instructions therefore “fairly and adequately cover[ed] the issues presented by
the case,” and the court properly declined to accept Alabi’s proposed instruction
because the charge was already included in the instructions. 2

       Alabi nevertheless asserts that we should reverse because the alleged
error “seriously impaired [his] ability to effectively present a given defense”
and was not harmless.          Ortiz-Mendez, 634 F.3d at 839 (citation omitted).
Alabi’s claims are unpersuasive. The instructions did not seriously impair his
ability to present his defense because they were a correct statement of the law
that clearly instructed the jurors on the principles of the law applicable to the
factual issues confronting them. There is no error, harmless or otherwise.

                                             IV.
       Daniel claims that the district court erred in refusing to sever his case
from his co-conspirator Andrews’s. He asserts that Andrews was “improperly
joined” and that the joint case “prevented him from calling [her] as a witness
in his trial because of her significant criminal history as well as her pending


       2 United States v. Dailey, 868 F.3d 322, 331–32 (5th Cir. 2017) (citation omitted); see
also Ortiz-Mendez, 634 F.3d at 838–40 (upholding a jury instruction similar to the one at
issue in this case).
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                                   No. 17-20541
charges.” Daniel explains that Andrews “could not testify because she had a
significant criminal history that would only be revealed if she testified.”

      Daniel states that the court’s refusal to sever prejudiced him because he
was unable to call Andrews as a witness. He contends that “instructions or
limitations” could not serve to provide “adequate protections” “because no in-
struction the district court could give the jury would replace [Andrews’s] testi-
mony at trial attesting to their relationship.” Daniel’s right to call witnesses
and present a defense, he avers, “clearly outweighs any government interest
in judicial economy.”

                                         A.
      A defendant asserting that “the district court committed reversible error
in denying his request to sever . . . faces a doubly high burden.” United States
v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018). “[W]e review the deci-
sion not to sever under the exceedingly deferential abuse of discretion stan-
dard.” Id. (internal quotation marks and citation omitted). Furthermore, “as
a substantive matter,” this court’s precedent “does not reflect a liberal attitude
toward severance.” Id. (internal quotation marks and citation omitted). “Sev-
erance is an exception,” id., justified “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence,” Zafiro v.
United States, 506 U.S. 534, 539 (1993). “To promote judicial economy and the
interests of justice, the federal system prefers joint trials of defendants who
are properly charged in joint indictments,” United States v. Daniels, 281 F.3d
168, 177 (5th Cir. 2002), “particularly in conspiracy cases,” United States v.
Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).

      “To surmount this heavy presumption,” Ledezma-Cepeda, 894 F.3d
at 690, “a defendant must show that: (1) the joint trial prejudiced him to such
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                                   No. 17-20541
an extent that the district court could not provide adequate protection; and
(2) the prejudice outweighed the government’s interest in economy of judicial
administration,” United States v. Snarr, 704 F.3d 368, 396 (5th Cir. 2013)
(internal quotation marks and citation omitted). “Generic allegations of preju-
dice will not suffice.” Ledezma-Cepeda, 894 F.3d at 690. The defendant must
show “specific compelling prejudice.” United States v. Lewis, 476 F.3d 369, 383
(5th Cir. 2007).

      “The defendant also must show that the district court’s instructions to
the jury did not adequately protect him or her from any prejudice resulting
from the joint trial.” United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012).
Even if “the risk of prejudice is high,” measures “less drastic” than severance,
“such as limiting instructions, often will suffice to cure any risk of prejudice.”
Zafiro, 506 U.S. at 539. “[I]n conspiracy cases we generally favor specific
instructions over severance,” Ledezma-Cepeda, 894 F.3d at 690, because “juries
are presumed to follow the instructions given to them by the district court,”
Owens, 683 F.3d at 100. Consequently, defendants “must identify specific
instances of prejudice unremedied by limiting instructions.” Ledezma-Cepeda,
894 F.3d at 690. “To obtain a severance based on the desire to have a co-
defendant testify in his defense, a defendant must establish: (1) a bona fide
need for the co-defendant’s testimony; (2) the substance [and] . . . (3) . . . excul-
patory effect of the testimony; and (4) that the co-defendant actually would
testify if the trial were severed.” Snarr, 704 F.3d at 397.

                                         B.
      Daniel is incorrect. He exaggerates the import of Andrews’s testimony,
misapprehends her ability to testify in light of her criminal history that would
go to credibility, erroneously states that her criminal history could be
introduced only if she testified, and fails to demonstrate that he was prejudiced

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                                  No. 17-20541
by the refusal to sever.

      Daniel fails to identify specific instances of prejudice unremedied by lim-
iting instructions, so he is unable to surmount his doubly high burden. Daniel
urged in the district court, and reasserts on appeal, that the court should have
severed his and Andrews’s cases because Andrews had been charged with
crimes Daniel had not been charged with and because Andrews’s “significant
criminal history . . . would only be revealed if she testified.” The court deter-
mined, however, that should the government properly admit Andrews’s crim-
inal history, “a strong limiting instruction” would “mak[e] clear to the jury that
it could only consider the prior convictions for the limited purposes allowed
under the rules [of evidence], curing any possible prejudice as a matter of law.”
The court “note[d] that the government intend[ed] to put on evidence of
Andrews’s prior convictions to show intent, knowledge, or absence of mistake,”
contradicting Daniel’s contention that the “only” way Andrews’s criminal
history would be revealed was “if she testified.”

      The district court also concluded that “Daniel [would not] be significantly
prejudiced if the severance [was] denied and Andrews refuses to testify” be-
cause Daniel and Andrews were going to testify to nearly identical facts about
the history of their relationship. Thus, Andrews’s decision not to testify “would
not leave [Daniel] without an effective defense.” He could “testify on his own
behalf” or “call other witnesses to . . . corroborat[e] details about his relation-
ship with Andrews.” Accordingly, “any prejudice to Daniel [was] insufficient
to overcome the strong presumption in favor of trying him alongside his alleged
coconspirator.” The court did not err.

      Furthermore, the district court properly charged the jury with limiting
instructions to cure any risk of prejudice, instructions that this court presumes
the jury followed:

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                                  No. 17-20541
      You must consider each count and the evidence pertaining to it
      separately. The fact that you may find one defendant guilty or not
      guilty of any of the counts charged may not control your verdict as
      to the other counts charged as to the other defendants. The fact
      that you may find one defendant guilty or not guilty as to one of
      the counts may not control your verdict on the other counts against
      that defendant.

The instructions also stated that “[f]or you to find one or more of the defendants
guilty of this crime, you must be convinced that the prosecution has proved
each of the following elements beyond a reasonable doubt as to that defendant.”
Daniel has not identified “specific instances of prejudice unremedied by lim-
iting instructions” and therefore is unable to surmount his doubly high burden.

                                        V.
      Andrews claims that the district court erred in imposing a special con-
dition of SR requiring her to “not knowingly purchase, possess, distribute,
administer, or otherwise use any psychoactive substances, including synthetic
marijuana or bath salts, that impair a person’s physical or mental functioning,
whether or not intended for human consumption, except as with the prior
approval of the probation officer.” She asserts that the special condition was
“[p]lainly [u]nreasonable” because (1) the district court did not state its reasons
for imposing the condition, (2) the “special condition is vague and overbroad”
and therefore “a greater deprivation of liberty than is necessary for Andrews
under the circumstances,” and (3) the “special condition is not reasonably
related to any of the pertinent sentencing factors.”

                                        A.
      Andrews did not object to the psychoactive-substances special condition.
We review unpreserved challenges to special conditions for plain error. United
States v. Scott, 821 F.3d 562, 570 (5th Cir. 2016). “Relief under the plain-error
standard will be difficult to get, as it should be.” United States v. Figueroa-
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                                     No. 17-20541
Coello, 920 F.3d 260, 264 (5th Cir. 2019) (per curiam).

      To establish plain error, an appellant must show (1) “an error or defect”
(2) that was “clear or obvious, rather than subject to reasonable dispute” and
(3) that “affected the appellant’s substantial rights.” United States v. Smith,
878 F.3d 498, 503 (5th Cir. 2017) (citation omitted). “This court then has dis-
cretion to correct the error if (4) it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Figueroa-Coello, 920 F.3d at 264.
“[A] defendant faces an uphill battle when he seeks to convince us that a modi-
fiable condition of [SR] satisfies the fourth prong’s requirements because the
modifiable nature of the condition works a less significant deprivation of lib-
erty than a condition which cannot be altered.” 3

                                           B.
      “[D]istrict courts have wide discretion in imposing terms and conditions
of [SR].” United States v. Caravayo, 809 F.3d 269, 276 (5th Cir. 2015) (per
curiam) (internal quotation marks and citation omitted). Subject to three re-
quirements, a court may impose any condition of SR “it considers to be appro-
priate.” 18 U.S.C. § 3583(d).

      First, a condition must be “reasonably related” to one of four factors:
(1) “the nature and circumstances of the offense and the history and charac-
teristics of the defendant”; (2) the “adequate deterrence [of] criminal conduct”;
(3) the “protect[ion] [of] the public from further crimes of the defendant”; and
(4) the “provi[sion] [of] needed educational or vocational training, medical care,
or other correctional treatment” to the defendant. Id. §§ 3583(d)(1), 3553(a)(1),
(2)(B)–(D); see also United States v. Weatherton, 567 F.3d 149, 153 & n.1 (5th



      3 United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir. 2017) (per curiam)
(cleaned up and citation omitted); see also 18 U.S.C. § 3583(e)(2).
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                                   No. 17-20541
Cir. 2009). Second, a condition cannot involve a “greater deprivation of liberty
than is reasonably necessary for the purposes” of the last three statutory fac-
tors. 18 U.S.C. § 3583(d)(2). Third, the condition must be “consistent with any
pertinent policy statements issued by the Sentencing Commission.”                 Id.
§ 3583(d)(3). Though a district court must “set forth factual findings to justify
special . . . conditions[,] . . . [e]ven without factual finding[s] . . . we may still
affirm a special condition if we can infer the district court’s reasoning after an
examination of the record.” United States v. Alvarez, 880 F.3d 236, 240 (5th
Cir. 2018) (per curiam) (internal quotation marks and citation omitted); see
also 18 U.S.C. § 3553(c).

                                         C.
      Andrews fails to demonstrate that the district court erred, plainly or
otherwise, in imposing the psychoactive-substances special condition. She first
maintains that the condition is invalid because the court imposed it “without
stating its reasons.” She claims that nothing in the record reveals “any justi-
fication or rationale for [imposing] the condition” and asserts that “it is not
entirely clear that the [c]ourt had a truly reasoned basis for its imposition of
[the] . . . special condition.” Consequently, the special condition is “a particu-
larly severe deprivation of [Andrews’s] liberty in light of [the] scant record.”

      Though Andrews correctly notes that the district court did not articulate
its factual findings, she ignores evidence from which this court may infer that
reasoning.   The presentence investigation report (“PSR”), which the court
adopted without change, reported that Andrews first used marihuana at fif-
teen years old, began to smoke two to three marihuana cigarettes a day at sev-
enteen, and had last used the drug in about December 2015. The PSR also
noted that Andrews had never participated in a substance-abuse program and
was willing to do so if given the opportunity, implying that she recognized she

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                                 No. 17-20541
had a drug problem.

      Based on these factors, the PSR recommended the special condition,
stating that it was justified “[b]ased on the defendant’s admitted history of
drug use and her willingness to discontinue the use of drugs” and that it “will
assist the defendant in being accountable as she transitions back into society.”
Consequently, there was sufficient evidence to infer the district court’s reason-
ing for imposing the special condition.

      Andrews attacks the special condition as “vague and overbroad.” She
complains that “[t]he phrase psychoactive substances neither is defined nor is
its meaning self-evident,” and thus the condition potentially prohibits her from
a wide swath of otherwise legal behavior, such as drinking coffee or eating
chocolate. She cites out-of-circuit cases analyzing special conditions involving
“mood-altering substances” to support her contention that the phrase “psycho-
active substances” is ill-defined and thus a greater deprivation of her liberty
than is necessary.

      Andrews overstates the vagueness of the special condition. The condi-
tion’s plain language gives explicit examples of substances the court meant,
including synthetic marihuana and bath salts. The court further narrowed the
special condition to only those psychoactive substances “that impair a person’s
physical or mental functioning,” thereby implicitly excluding mere mood-
altering substances like coffee or chocolate. The heading of the section in which
this condition was included was “Substance Abuse Treatment, Testing, and
Abstinence,” adding additional context by which Andrews could reasonably
discern the types of substances covered by the special condition. Even if she
was confused about what the special condition encompasses, she would be free
to contact her probation officer to inquire about the propriety of specific
substances or to get permission for prohibited substances.

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                                  No. 17-20541
      Andrews’s reliance on the out-of-circuit cases analyzing mood-altering
substances is misplaced. The Seventh Circuit, on which Andrews relies in part,
has noted that “[a] better definition for ‘mood altering substances’ . . . would be
‘psychoactive substances that impair physical or mental functioning,’” substan-
tially mirroring the language of the special condition at issue here. United
States v. Kappes, 782 F.3d 828, 853 (7th Cir. 2015) (citation omitted).

      Andrews last contends that the “special condition is not reasonably
related to any of the pertinent sentencing factors.” She reasons that her of-
fense did not involve substance abuse and was not caused by it, that the record
does not contain “medically-grounded findings” that indicate that monitoring
her use of psychoactive substances generally “will reasonably deter future
fraudulent behavior,” and that the special condition is not “related to the need
to provide [her] with effective correctional treatment.”

      Andrews thus focuses her challenge on whether the special condition is
reasonably related to one of the four § 3553(a) factors, but her contentions are
meritless. The condition is at least reasonably related to “the nature and cir-
cumstances of the offense and the history and characteristics of the defendant.”
18 U.S.C. § 3553(a)(1). As the PSR reported, Andrews had a history of drug
abuse, was willing to participate in a substance-abuse program, and impliedly
recognized that she had a drug problem. In light of the personal history and
characteristics, prohibiting Andrews from knowingly purchasing, possessing,
distributing, administering, or otherwise using any psychoactive substances
was reasonable and not plain error.

      AFFIRMED.




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