     Case: 16-40386      Document: 00513857416         Page: 1    Date Filed: 01/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-40386                              FILED
                                                                         January 31, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

               Plaintiff - Appellee

v.

DAVID TERRELL,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-709-1


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
           Appellant Terrell challenges only the mental health treatment
requirement during supervised release after he serves his term for being a
felon in possession of a firearm.            He claims no such requirement was
warranted. He also asserts an impermissible conflict between the court’s oral
pronouncement of the sentence and the written judgment’s boilerplate terms
concerning this requirement. For the reasons stated below, we MODIFY the
judgment to conform with the oral pronouncement and so modified, AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40386
      David Terrell pled guilty to being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). The district
court sentenced Terrell to 24 months of imprisonment and three years of
supervised release. The Presentence Report (“PSR”) shows that when Terrell
was arrested for driving while intoxicated, he was found in possession of an
empty hydrocodone pill bottle, an empty Soma pill bottle, and 32 tablets of
Valium. The PSR also provides that “The defendant reported no prior history
of mental or emotional health related problems; however, since his arrest for
the instant offense, the defendant has experience anxiety related to his present
legal problems and is prescribed Xanax to address these symptom.”
      The district court sentenced Terrell by oral pronouncement and stated
that “[b]ased on the information in the presentence report I’m going to impose
some special conditions. One is that you participate . . . in a mental health
program, as directed by the probation officer.” Terrell did not object.
      The written judgment included a special condition that he “participate
in a mental health program as deemed necessary and approved by his probation
officer.” (emphasis added).
      Terrell first argues that the condition requiring him to participate in a
mental health program is not reasonably related to any of the statutory factors
articulated in 18 U.S.C. § 3583(d)(1) and was not justified by the district court.
      This court usually reviews the imposition of a special condition of
supervised release for abuse of discretion. United States v. Gordon, 838 F.3d
597, 604 (5th Cir. 2016). Because Terrell failed to object in the district court,
plain error review applies. Id. Under plain error review, there is “considerable
deference” to the district court’s imposition of a special condition. United
States v. Winding, 817 F.3d 910, 915 (5th Cir. 2016) (citation omitted). Plain
error occurs when (1) there is an error, (2) the error is plain, (3) the error affects


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                                 No. 16-40386
substantial rights and (4) the error seriously affects the fairness, integrity or
public reputation of the judicial proceedings. Gordon, 838 F.3d at 604.
      District courts have broad discretion to impose special conditions of
supervised release. United States v. Fernandez, 776 F.3d 344, 346 (5th Cir.
2015). Under 18 U.S.C. § 3583(d), the imposed conditions imposed should
reasonably relate to the following statutory factors:
            (1) the nature and circumstances of the offense and the
      history and characteristics of the defendant,
           (2) the need to afford adequate deterrence to criminal
      conduct,
           (3) the need to protect the public from further crimes of the
      defendant, and
           (4) the need to provide the defendant with needed training,
      medical care, or other correctional treatment in the most effective
      manner.
United States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (citations omitted).
This court may affirm a special condition “where the [district] court’s reasoning
can be inferred after an examination of the record.” United States v. Caravayo,
809 F.3d 269, 275 (5th Cir. 2015) (internal quotation marks and citations
omitted).
      Record evidence shows that Terrell was prescribed Xanax for anxiety
and had a prior conviction for making a terroristic threat. He was also arrested
while in possession of Valium pills. This court takes judicial notice that Xanax
cannot be properly administered without adequate medical or psychiatric
supervision; it is far more consequential than over the counter medication. The
district court’s reasons, based on evidence in the PSR that Terrell did not
challenge, are inferable from and sufficient to justify the district court’s
imposition of the mental health condition. See, e.g., United States v. Rouland,
726 F.3d 728, 736 (5th Cir. 2013). The facts distinguish this case from United

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                                  No. 16-40386
States v. Garcia, 638 F.App’x. 343 (5th Cir. 2016), in which there was no
evidence at all suggesting a need for mental health treatment. There was no
plain error.
       Terrell’s second challenge is to the “impermissible delegation” to the
probation office of the need for mental health treatment, which Terrell implies
from the terms of the written judgment (but not the court’s oral
pronouncement). The oral pronouncement states that Terrell is to participate
in treatment “as directed by the probation officer.” Terrell cannot deny that
an “as directed” condition, which leaves to the officer the timing and details of
such treatment, is not an impermissible delegation of the court’s power.
United States v. Talbert, 501 F.3d 449, 452–53 (5th Cir. 2007).
        This court has recently decided that the written boilerplate mental
health treatment language used in Terrell’s case suffers from ambiguity as to
whether it improperly delegated responsibility to the probation officer to
determine the need for mental health treatment. United States v. Franklin,
838 F.3d 564, 568 (5th Cir. 2016). In the absence of an oral pronouncement by
the district court, we would be obliged to vacate and remand for clarification of
this provision. However, it is well settled that where the oral pronouncement
and the written judgment conflict, the oral pronouncement controls. United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). We are confident that the
district court’s oral pronouncement left no discretion with the probation office
about the need for such treatment, only about its timing and circumstances.
       The Southern District of Texas has experienced several instances in
which the same language was successfully challenged on appeal. See, e.g.,
United States v. Lopez-Muxtay, 344 F. App’x 964, 966 (5th Cir. 2009); United
States v. Lomas, 643 F. App’x 319, 325 (5th Cir. 2016). Some of the courts were
adopting outdated language from a 1996 district court order. General Order
No. H-1996-10. (“The defendant is required to participate in a mental health
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                                No. 16-40386
program as deemed necessary and approved by the probation officer.”). We
applaud that recently implemented procedures, including rewording of the
supervised release conditions, should avoid any future uncertainty and
conflict. General Order No. 2017-01 (S.D. Tex. Jan. 6, 2017).
      We remand with instructions that the district court conform the written
judgement to the oral pronouncement.      The Sentence, as so MODIFIED, is
AFFIRMED.




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