     Case: 17-40078   Document: 00514318675     Page: 1   Date Filed: 01/23/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-40078                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                       January 23, 2018
                                                                 Lyle W. Cayce
             Plaintiff – Appellee,                                    Clerk

v.

MARIA DEL ROSARIO ALVAREZ,

             Defendant – Appellant.




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


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
       Maria Del Rosario Alvarez appeals the district court’s sentence
requiring her to obtain mental health treatment as a special condition of
supervised release. Because the district court committed reversible error in
imposing this special condition without the statutorily required factual
findings, we VACATE the challenged condition and REMAND for proceedings
consistent with this opinion.
                                       I.
      A border patrol agent stopped Maria Del Rosario Alvarez at a border
patrol checkpoint. Alvarez’s sister, her sister’s infant, and Agustin Hernandez-
Sanchez were all passengers in the car. The agent asked if they were United
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                                    No. 17-40078
States citizens, and they all answered yes.          The agent then asked for
identification, and everyone except Hernandez-Sanchez handed the agent
United States birth certificates. The agent then asked Alvarez to park in the
secondary inspection area.
      In the secondary inspection area, Hernandez-Sanchez admitted he was
illegally present in the United States. Then, Alvarez and Hernandez-Sanchez
were arrested. During a search of the car, agents found Alejandro Martinez-
Cristobal hiding in the trunk of the car. Martinez-Cristobal was also illegally
present in the United States. Alvarez never told agents that there was a
person in the trunk, and when agents eventually found Martinez-Cristobal, it
was 94 degrees in the trunk.
      Prior to the sentencing hearing, the United States Probation Office
prepared a presentence report (PSR) detailing Alvarez’s personal background.
It reported that Alvarez had no prior criminal history but that she had a
history of alcohol use, recommending that the court “consider imposing an
education and drug treatment and/or surveillance special condition.” Notably,
however, the PSR stated that Alvarez “reported no history of mental or
emotional health related problems and [its] investigation [had] revealed no
information to indicate otherwise.”
      Alvarez pleaded guilty to transportation of an undocumented alien, in
violation   of   18   U.S.C.   §§   1324(a)(1)(A)(ii),   1324(a)(1)(A)(v)(II),   and
1324(a)(1)(B)(ii). During the sentencing hearing, Alvarez’s counsel asked the
district court to consider a departure for aberrant behavior and stated that
Alvarez had “suffered extreme abuse and trauma in her very short life.”
      The district court sentenced Alvarez to 18 months of imprisonment to be
followed by two years of supervised release. The district court then ordered
“[s]tandard terms of supervision, along with drug and alcohol treatment,
mental health, and that [Alvarez] enroll in a program—educational program
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                                  No. 17-40078
designed to receive a high school diploma or its equivalency.” During the
sentencing hearing, Alvarez did not object to the imposition of a mental health
treatment program as a special condition of supervised release.
      Regarding this special condition, the judgment stated:
           The defendant is required to participate in a mental health
           program. Further, the defendant shall participate and shall
           comply with all rules and regulations of the treatment agency until
           discharged by the Program Director with the approval of the
           probation officer. The defendant will incur costs associated with
           such program, based on ability to pay as determined by the
           probation officer.
Alvarez timely filed a notice of appeal.
                                        II.
      On appeal, Alvarez argues that the district court committed reversible
error by imposing the mental health special condition. Alvarez concedes that
because she failed to object to the special condition in the district court, our
review is limited to plain error. To prevail, Alvarez must show:
      First, there must be an error or defect—some sort of “[d]eviation from a
      legal rule”—that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived, by the appellant. Second, the legal error must
      be clear or obvious, rather than subject to reasonable dispute. Third, the
      error must have affected the appellant’s substantial rights, which in the
      ordinary case means he must demonstrate that it “affected the outcome
      of the district court proceedings.” Fourth and finally, if the above three
      prongs are satisfied, the court of appeals has the discretion to remedy
      the error—discretion which ought to be exercised only if the error
      “seriously affect[s] the fairness, integrity or public reputation of judicial
      proceedings.”

United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir. 2015) (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)).
                                       III.
      District courts have broad discretion to impose special conditions of
supervised release. United States v. Fernandez, 776 F.3d 344, 346 (5th Cir.

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2015). Pursuant to 18 U.S.C. § 3583(d), conditions of supervised release must
be “reasonably related” to one of the four statutory factors 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 deterrence of criminal conduct,
     (3) the protection of the public from further crimes of the defendant, and
     (4) the provision of needed educational or vocational training, medical
     care, or other correctional treatment to the defendant.
United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing
18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). A special
condition cannot involve a “greater deprivation of liberty than is reasonably
necessary for the purposes” of the last three statutory factors and must be
“consistent with any pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(2), (d)(3). According to the United States
Sentencing Commission, mental health treatment is appropriate “[i]f the court
has reason to believe that the defendant is in need of psychological or
psychiatric treatment.” U.S.S.G. § 5D1.3(d)(5).
      The sentencing court must “state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c). “[C]ourts of appeal
have consistently required district courts to set forth factual findings to justify
special probation conditions.” United States v. Salazar, 743 F.3d 445, 451 (5th
Cir. 2014) (quoting United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).
Even without factual finding by the district court, 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. Caravayo, 809 F.2d 269, 275 (5th Cir. 2015)
(vacating and remanding for resentencing because the record did not contain
support for the imposition of the special condition). However, if the district
court’s reasoning is unclear after our review of the record, the special condition
must be vacated as an abuse of discretion. Id.

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                                    No. 17-40078
      We conclude that Alvarez has met her burden to show reversible error.
It is undisputed that the district court did not attempt to explain how the
mental health special condition reasonably related to any of the statutory
factors. See United States v. Garcia, 638 F. App’x 343, 346 (5th Cir. 2016) 1
(vacating a special condition on plain error review because the district court’s
“reiteration” of two statutory factors “did not adequately explain how the
mental health condition reasonably related to the cited statutory factors”). The
government urges us to infer the district court’s reasoning, but on this record,
we cannot surmise how the mental health special condition is clearly related
to the statutory factors. The PSR did not report mental or emotional health
related problems. While the PSR recommended that the district court consider
imposing education and drug treatment special conditions, which were also
imposed, the PSR did not recommend a mental health special condition.
      There is no evidence in this record suggesting that Alvarez needs mental
health treatment. By contrast, when a defendant was experiencing anxiety
and had been prescribed medication for anxiety, we determined that it was not
plain error when the district court imposed, without explanation, a mental
health treatment as a special condition of supervised release. See United
States v. Terrell, 677 F. App’x 938, 940 (5th Cir. 2017). Here, however, there
is no evidence that Alvarez has ever been diagnosed with or treated for a
mental health condition. Moreover, we see no evidence in the record to suggest
that the district court “had reason to believe” that Alvarez suffered from a
mental health condition. See United States v. Heredia-Holguin, 679 F. App’x
306, 311–12 (5th Cir. 2017) (citing cases in which, under plain error review, we
upheld special conditions that required defendants to abstain from alcohol


      1  Pursuant to Fifth Circuit Rule 47.5.4, unpublished opinions issued on or after
January 1, 1996 generally are not precedent, although they may be cited as persuasive
authority pursuant to Fed. R. App. P. 32.1(a).
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                                  No. 17-40078
when the district court “had reason to believe that [the defendant] abuses
controlled substances”).
      The government argues that the district court believed that Alvarez
would benefit from mental health treatment based on the nature and
circumstances of her personal history, as reported in her PSR. According to
the government, the record supports this inference. The record does indicate
that Alvarez has experienced trauma in her life, including the murder of the
father of her first two children. The PSR also reports that Alvarez was the
victim of abuse in a prior relationship.         In particular, the government
emphasizes Alvarez’s counsel’s statement that Alvarez “has suffered extreme
abuse and trauma in her very short life.”
      Many defendants, unfortunately, suffer from abuse and trauma. “But
special conditions must be tailored to the individual defendant. . . .” Caravayo,
809 F.3d at 276. Here, “the record does not clearly contain any discussion,
factual finding, or other support for [this] special condition.” Id. The evidence
of abuse and trauma here is not enough for us to infer the district court’s
rationale in imposing this mental health special condition. A contrary ruling
here would suggest that a district court can impose a mental health program
as a special condition—without explanation—on any defendant with a history
of trauma and abuse.
      Because the district court made no specific factual finding to establish
that this special condition was reasonably related to one of the four factors
under § 3553(a), and because the record does not clearly substantiate such a
relationship, we conclude that Alvarez has met her burden to show error.
Moreover, the district court’s error here is plain, that is, not open to reasonable
debate.   District courts must “set forth factual findings to justify special
probation conditions.” Id. at 275. Here, the district court failed to do so, and
this error is not open to reasonable debate.
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                                  No. 17-40078
        We further conclude that the district court’s error affected Alvarez’s
substantial rights. Alvarez is required to pay for the mental health program,
if she can afford it, and such a program may require a significant commitment
of time.    Moreover, this special condition creates a possibly unwarranted
perception that Alvarez requires mental health treatment. See United States
v. Gordon, 838 F.3d 597, 605 (5th Cir. 2016) (vacating a mental health special
condition under plain error review).
        Determining that Alvarez has established the first three prongs of plain
error review, we must consider whether we should exercise our discretion to
remedy this error.      The government contends that the imposition of this
condition does not seriously affect the fairness, integrity, or public reputation
of judicial proceedings and urges us not to exercise our discretion in Alvarez’s
case. It is true that Alvarez may seek modification of this condition during her
supervised release. 18 U.S.C. § 3583(e)(2). In United States v. Mendoza-
Velasquez, we declined to exercise our fourth-prong discretion when the mental
health condition was modifiable. United States v. Mendoza-Velasquez, 847
F.3d 209, 213 (5th Cir. 2017). However, in that case, the defendant had “an
extensive criminal history” that counseled us against “rectifying any
error.” Id. Here, according to this record, Alvarez has no criminal history at
all.
        Moreover, “the fourth prong is meant to be applied on a case-specific and
fact-intensive basis.” Prieto, 801 F.3d at 554 (quoting United States v. John,
597 F.3d 263, 286 (5th Cir. 2010)). As the Supreme Court has emphasized, a
“per se approach to plain-error review is flawed.” Id. (quoting Puckett, 556 U.S.
at 142). Therefore, the ability of a defendant to modify a special condition is
only one factor considered as we determine whether to exercise our discretion.
In this particular case, there was no indication from the PSR or discussion at
the sentencing hearings that the district court was considering imposing a
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                                No. 17-40078
mental health special condition.    Also, as discussed, this type of special
condition implicates significant autonomy and privacy concerns.
      For the foregoing reasons, we VACATE the condition of Alvarez’s
supervised release requiring her to participate in mental health treatment. We
REMAND for the district court to reconsider whether to impose this special
condition.




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                               No. 17-40078


REAVLEY, Circuit Judge, dissenting:
            This experienced judge gave special time and attention to the
conduct and history of the defendant and decided that mental health
assistance would benefit her, and would meet some if not all of the statutory
factors stated above. I would require no more because I read the record to
support this.




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