                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                November 15, 2010
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                            __________________________             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-1465
 v.                                          (D.Ct. No. 1:08-CR-00523-PAB-1)
                                                         (D. Colo.)
 NATHAN DANIEL LARSON,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



      Appellant Nathan Daniel Larson pled guilty to one count of making threats

against the President of the United States in violation of 18 U.S.C. § 871(a). The

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court sentenced him to a term of sixteen months imprisonment, followed

by three years supervised release with a special condition Mr. Larson participate

in a mental health treatment program, including taking all medications prescribed

by his treating psychiatrist. Mr. Larson appeals the imposition of the special

condition, contending the district court committed plain error by requiring he take

any prescribed medications. We exercise jurisdiction under 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291 and affirm.



                       I. Factual and Procedural Background

      Following Mr. Larson’s arrest and indictment for threatening the President,

his federal public defender successfully moved the district court for a psychiatric

evaluation. Two psychiatric reports – one prepared by a psychiatric doctor

retained by Mr. Larson’s attorney and another by a forensic psychologist retained

by the Federal Bureau of Prisons – concluded Mr. Larson was sane at the time he

sent the threat and competent to assist at his trial. These reports also described in

detail his psychiatric and prescriptive history.



      Following receipt of these reports, the district court held a hearing on Mr.

Larson’s motion to proceed pro se and granted the motion after finding his waiver

of the right to counsel was knowing and voluntary. However, it ordered his

attorney to attend all future proceedings and offer guidance to his former client.

                                          -2-
      Thereafter, Mr. Larson pled guilty to the offense of threatening the

President in violation of 18 U.S.C. § 871(a). Prior to sentencing, a probation

officer prepared a presentence report based on the United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”), calculating Mr. Larson’s total offense

level at twelve and his criminal history category at II, for a total recommended

sentencing range of twelve to eighteen months imprisonment followed by a three-

year term of supervised release. Both the presentence report and attached

psychiatric reports, as previously mentioned, discussed Mr. Larson’s past

psychiatric and prescriptive history, including his history of taking various

identified medications for his mental health issues, including impulse control

problems. His psychiatric history also indicated that while no drugs were totally

effective and he experienced certain negative or common side effects: (1) his

mental health problems were generally improved or controlled with medication;

(2) each time he reported negative side effects from certain medications, his

medication was changed; and (3) he eventually was prescribed at least two

identified medications which seemed to cause improvement without adverse or

negative side effects. Additional information, including information obtained

from Mr. Larson’s mother, established Mr. Larson previously committed personal

and physical attacks against others, including a family member, and that he posed

a danger to himself and others, and during and after these incidents he was treated

with prescriptive medications for the purpose of countering poor impulse control.

                                         -3-
Based on Mr. Larson’s history and characteristics, as well as the circumstances of

his instant offense, the probation officer recommended special conditions as part

of his supervised release, including that he participate in a program of mental

health treatment and “take all medications that are prescribed by his treating

psychiatrist.”



      Mr. Larson objected to the special conditions of mental health treatment

and compelled medications, stating: (1) “psychiatrists have trouble understanding

or predicting the exact effect that their prescribed drugs will have on any given

individual”; (2) past recommended treatments proved to be quackery, including

when “[a]ncient doctors used to try to exorcise evil spirits from the mentally ill,

or drill holes in their heads to allow the spirits to escape” and Sigmund Freud

prescribed cocaine to his patients; and (3) he questioned the long-term effects and

ethics related to mental-health drugs commonly prescribed today, especially when

considering the potential side effects. In addition to lodging these objections and

with the help of his advisory attorney, Mr. Larson also filed a motion for a

downward departure or, alternatively, a motion under 18 U.S.C. § 3553 for a

below-Guidelines-range sentence.



      At the beginning of his sentencing hearing, the district court inquired as to

whether Mr. Larson had “additional comments about the motion for a variant

                                          -4-
sentence or ... further comment on some of the sentencing aspects that you

complained about ....” Mr. Larson responded by stating, “I would just like to

withdraw my objections to the conditions of probation or supervised release.” He

also informed the district court he “intend[ed] to abide by the terms of supervised

release and not commit more crimes.” The district court denied Mr. Larson’s

request for a variant sentence and indicated its intent to sentence him to a within-

Guidelines-range sentence. During his allocution before the district court prior to

imposition of the sentence, Mr. Larson, with the assistance of his attorney,

successfully requested a continuance; his hearing was continued seven days, at

which time the district court again asked if Mr. Larson had anything else to offer,

to which he said “no.”



      Prior to imposing his sentence, the district court stated, “no finding is

necessary concerning the remaining objections to the Presentence Report because

.... [n]either the government nor the defendant has challenged any other aspect of

the Presentence Report; therefore, the remaining factual statements and guideline

applications are adopted without objection ....” It also explicitly discussed the

applicable 18 U.S.C. § 3553 sentencing factors, including the issue of recidivism

as well as Mr. Larson’s personal characteristics and history, which showed his

inability to control his impulses and other self-control problems, not limited to his

threats against authority figures; prior personal and physical attacks against

                                         -5-
others, including a family member; and the danger he posed to himself and others.

It then imposed a sentence of sixteen months imprisonment with a three-year term

of supervised release. It also imposed the special condition Mr. Larson “remain

medication compliant and shall take all medications that are prescribed by his

treating psychiatrist” and stated that it believed if he focused on his mental health

treatment, controlled his impulses, and obtained employment, he would be

successful in the future. Mr. Larson did not make a contemporaneous objection to

his sentence, supervised release, or any of the conditions of his supervised

release.



                                    II. Discussion

      Mr. Larson, through appointed counsel, now appeals the special condition

of his supervised release ordering him to take any medications prescribed by his

treating psychiatrist, contending the district court committed plain error by

imposing such a requirement without explanation, resulting in a violation of his

protected personal liberty interests. In making this contention, he asserts

“[s]tatutory text, this court’s case law, and leading opinions from other circuits

required the [district] court to make specific factual findings justifying the

condition ....” In support, he relies not only on the supervised release provisions

in 18 U.S.C. § 3583(d) and the sentencing factors in 18 U.S.C. § 3553 but the

Supreme Court’s decision in Riggins v. Nevada, 504 U.S. 127, 137 (1992); our

                                          -6-
decisions in United States v. Hahn, 551 F.3d 977, 982 (10 th Cir. 2008), cert.

denied, 129 S. Ct. 1687 (2009), and United States v. Kravchuk, 335 F.3d 1147,

1159 (10 th Cir. 2003); and various other circuit court decisions.



      In response, the government opposes the appeal, arguing the district court

was not required under Federal Rule of Criminal Procedure 32 to provide an

explanation for imposition of such a special condition given Mr. Larson’s

withdrawal of his objection to the special condition and his uncontroverted

psychiatric history. It further notes the district court in the instant case

considered at length the presentence report’s undisputed evidence of Mr. Larson’s

personal, medical, and psychiatric history which supported such a special

condition and that the court provided a sufficient general statement of its

reasoning when it relied on such history and expressly found Mr. Larson’s mental

health issues required medication to help him control his impulses. It also points

out that in the cases on which Mr. Larson relies, the defendants, unlike Mr.

Larson, continued to object to the special condition of medication compliance,

thereby requiring the district court to provide an explanation for imposing such a

special condition.



      We begin by acknowledging “[d]istrict courts have broad discretion to

prescribe conditions on supervised release, pursuant to 18 U.S.C. § 3583(d) and

                                          -7-
other applicable laws,” and we generally review the imposition of such conditions

for an abuse of discretion. United States v. Wayne, 591 F.3d 1326, 1331 (10 th Cir.

2010). However, in this case, the parties agree Mr. Larson failed to object to the

contested special condition so that our standard of review is for plain error. Plain

error occurs when: (1) there is an error; (2) which is plain; (3) affects the

defendant’s substantial rights; and (4) seriously affects the fairness, integrity, or

public reputation of the judicial proceeding. See United States v. Barwig, 568

F.3d 852, 855 (10 th Cir. 2009). Under a plain error review, the burden is on the

appellant to establish all four elements. See United States v. Dominguez Benitez,

542 U.S. 74, 82 (2004). These elements are conjunctive, and only “[i]f all four

prongs are satisfied, ... may [we] then exercise our discretion to notice the

forfeited error.” United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10 th Cir.

2004) (internal quotation marks omitted).



      To establish an error is “plain” under the second prong of the plain error

review, Mr. Larson must establish it is clear or obvious. United States v. Olano,

507 U.S. 725, 734 (1993). To establish the alleged error affected a substantial

right under the third prong, Mr. Larson must show the error was “prejudicial,” so

that the error “must have affected the outcome of the district court proceedings.”

Id. Stated another way, he must show “a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.”

                                          -8-
Dominguez Benitez, 542 U.S. at 81-82 (internal quotation marks omitted). As to

the fourth prong, in order to show the error seriously affected the fairness,

integrity, or public reputation of the judicial proceeding, Mr. Larson must

demonstrate the district court’s limited explanation was “particularly egregious”

and a failure to correct it would result in a “miscarriage of justice.” See United

States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10 th Cir. 2005) (en banc). One can

establish such an error by demonstrating “a strong possibility of receiving a

significantly lower sentence,” United States v. Meacham, 567 F.3d 1184, 1190

(10 th Cir. 2009) (internal quotation marks omitted), which, in this case, would

equate to a less restrictive special condition or removal of such a condition.



      Having determined our standard of review, we turn to the legal principles

for imposing special conditions for supervised release. The statute on which Mr.

Larson primarily relies, 18 U.S.C. § 3583(d), states a court may order a condition

of supervised release: (1) if the condition is “reasonably related” to the

sentencing factors in 18 U.S.C. § 3553(a)(1) and (2); (2) involves “no greater

deprivation of liberty than is reasonably necessary”; and (3) “is consistent with

any pertinent policy statements issued by the Sentencing Commission pursuant to

28 U.S.C. § 994(a).” Section 3583(d) also authorizes the court to impose any

discretionary condition set forth in § 3563(b)(9), which allows the court to require

a defendant to “undergo available medical, psychiatric, or psychological

                                          -9-
treatment.” The § 3553(a) sentencing factors referenced in § 3583(d) require, in

part, consideration of the defendant’s history and characteristics; the need for

adequate deterrence; protection of the public from further crimes; and “medical

care, or other correctional treatment in the most effective manner” for the

defendant. The Guidelines similarly provide a district court may impose special

conditions of supervised release “to the extent” they are reasonably related to the

§ 3553(a) sentencing factors. See U.S.S.G. § 5D1.3(b).



      In addition to these provisions, the Supreme Court has held that under the

Due Process Clauses of the Fifth and Fourteenth Amendments, individuals have a

“constitutionally protected liberty interest in avoiding involuntary administration

of antipsychotic drugs – an interest that only an essential or overriding state

interest might overcome.” Sell v. United States, 539 U.S. 166, 178-79 (2003)

(internal quotation marks omitted). Such overriding interests include situations

where the defendant is a danger to himself or others and such treatment is in the

inmate’s medical interest. See Riggins, 504 U.S. at 134-35 (relying on

Washington v. Harper, 494 U.S. 210, 227 (1990)).



      With respect to the findings or explanation a district court must articulate

in imposing a special condition concerning antipsychotic drugs, we recognize

Federal Rule of Criminal Procedure 32(i)(3)(A) and (B) generally states the

                                         -10-
district court “may accept any undisputed portion of the presentence report as a

finding of fact” and only requires that it rule on “any disputed portion of the

presentence report or other controverted matter.” However, where a defendant

has objected to the imposition of an involuntary medication order, the Supreme

Court has held such a special condition is constitutionally impermissible “absent a

finding of overriding justification and a determination of medical

appropriateness.” Riggins, 504 U.S. at 135. Similarly, where a defendant objects

to a presentence report’s recommendation for a special condition, we have held

the “district court is required to give reasons on the record for the imposition of

special conditions of supervised release,” but, in so doing, it “need only provide a

generalized statement of its reasoning.” Hahn, 551 F.3d at 982-83 (internal

quotation marks omitted).



      In this case, Mr. Larson explicitly withdrew his objection to the

presentence report, including the recommendation for a special condition of

supervised release requiring him to take prescribed medications during such

release. As a result, the district court could accept the undisputed portions of the

presentence report and attached psychiatric reports concerning Mr. Larson’s

mental health issues, need for mental health treatment, and use of medications to

assist with those issues.




                                         -11-
      As to the government’s argument Federal Rule of Criminal Procedure 32

requires no explanation for the imposition of such a condition where, like here,

the defendant did not object to the imposition of such a special condition, we

need not address its argument on appeal. This is because the district court in this

instance provided a general statement for the purpose of addressing the overriding

justification for such a special condition and its determination concerning its

medical appropriateness. The district court did this when it explicitly outlined

some of the serious mental health issues Mr. Larson experienced, including his

inability to control his impulses, which the record demonstrates occurred without

proper prescriptive medication, and other related self-control problems, such as

his threats against authority figures, personal and physical attacks against others,

and the danger he posed to himself and others. In so doing, it is evident the

district court carefully considered Mr. Larson’s psychiatric and prescriptive

history before imposing the special condition requiring compliance in taking

prescribed medications. As a result, in applying the first two prongs of our plain

error standard of review, we perceive no error that is plain or otherwise clear or

obvious. 1



      Even if plain error existed with regard to the brevity in which the district

      1
        While we need not address the other conjunctive prongs of our plain error
review, we do so for Mr. Larson’s benefit to fully address the serious claims
associated with his appeal.

                                         -12-
court justified the imposition of such a special condition, Mr. Larson has not

shown, under the third prong of our review, “a reasonable probability that, but for

the error claimed, the result of the proceeding would have been different.” United

States v. Mendoza, 543 F.3d 1186, 1194 (10 th Cir. 2008) (internal quotation marks

omitted). This is because nothing in the record or Mr. Larson’s argument

indicates a more thorough explanation or a remand for a more thorough

explanation would change the outcome of the proceeding concerning the district

court’s imposition of such a condition. As to the fourth prong, the record

contains uncontroverted evidence to show the requisite overriding justification

and medical appropriateness for imposition of the contested special condition, and

Mr. Larson has not shown the district court’s explanation was particularly

egregious, a failure to correct it would result in a miscarriage of justice, or, but

for the error alleged, there was a strong possibility the district court would have

declined imposing the special condition. In sum, the lack of a more thorough

explanation did not seriously affect the fairness, integrity, or public reputation of

Mr. Larson’s judicial proceeding.



      With regard to the cases on which Mr. Larson relies, the government

correctly contends the facts are distinguishable from the circumstances here, and

therefore, no remand is necessary. In Riggins, on which Mr. Larson relies, the

Supreme Court held the forced administration of antipsychotic medication during

                                         -13-
a defendant’s trial denied him the right to a “full and fair trial” under the Sixth

and Fourteenth Amendments. 504 U.S. at 133-38. However, the Court noted the

constitutional interests of an individual under a penal confinement differed, and,

as previously noted, it held “due process allows a mentally ill inmate to be treated

involuntarily with antipsychotic drugs where there is a determination that ‘the

inmate is dangerous to himself or others and the treatment is in the inmate's

medical interest.’” Id. at 134-35 (quoting Washington, 494 U.S. at 227). In this

instance, the special condition imposed did not occur during Mr. Larson’s trial

but during a portion of his penal sentence – his supervised release. As a result,

the district court in this case was not constitutionally prohibited from ordering the

treatment with drugs based on what it believed to be in Mr. Larson’s medical

interest, especially given the danger it noted he posed to himself and others.



      As to this circuit’s decisions on which Mr. Larson relies, in Hahn, the

defendant objected to imposition of special conditions of supervised release, so

that, unlike here, the standard of review was for an abuse of discretion. See 551

F.3d at 982. But, like here, we held the district court’s explanation of the special

conditions relating to the defendant’s history and characteristics and need to

protect the public from further crimes was sufficient to avoid remand. See id. at

982-83. In Kravchuk, we reviewed for an abuse of discretion the district court’s

imposition of conditions associated with the defendant’s supervised release and

                                          -14-
remanded because the district court failed to provide any reasons for such special

conditions. See 335 F.3d at 1159-60. In contrast, in this case, Mr. Larson

withdrew his objection to the special condition, resulting in our application of the

plain error review, and the district court provided an express general statement of

its reasoning for imposition of such a special condition.



      As to the other circuit court cases on which Mr. Larson relies, they are not

only nonprecedential but distinguishable given the defendants, unlike Mr. Larson,

did not withdraw their objections to the special conditions imposed so that the

review was for an abuse of discretion, and the district courts, in imposing those

special conditions, unlike here, failed to provide a general or otherwise adequate

explanation or finding for the special condition imposed, and/or the record did not

support imposition of such a condition. See United States v. Cope, 527 F.3d 944,

948-49, 955 (9 th Cir. 2008) (holding development of “medically informed records”

and “on-the-record medically-grounded findings” are required where defendant

objected to special condition of compelled medication for which he did not

receive notice); United States v. Weber, 451 F.3d 552, 557-58, 560 (9 th Cir. 2006)

(determining objection to special condition for plethysmograph testing and

compelled medication requires the government to show condition is reasonably

necessary to promote § 3553(a) goal and for the district court to perform a

“thorough inquiry”); United States v. Myers, 426 F.3d 117, 124, 126-27 (2d Cir.

                                         -15-
2005) (applying abuse of discretion review and holding record failed to support

special condition limiting father from visiting son); United States v. Williams, 356

F.3d 1045, 1056-57 (9 th Cir. 2004) (concluding district court abused its discretion

in ruling on defendant’s objection when imposing mandatory medication special

condition because it failed to make findings on a medically-informed record);

United States v. Warren, 186 F.3d 358, 366-67 (3d Cir. 1999) (holding district

court must make explicit factual findings or record must contain evidence to

support special condition to restrict travel outside United States).



                                  III. Conclusion

      For the above reasons, we AFFIRM Mr. Larson’s sentence, including the

three-year term of supervised release with the special condition requiring

medication compliancy.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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