     Case: 17-40344      Document: 00514502857         Page: 1    Date Filed: 06/06/2018




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

                                                                                FILED
                                      No. 17-40344                           June 6, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

RICARDO ROCHA,

              Defendant – Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-442-1


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ricardo Rocha appeals the district court’s requirement that, as a special
condition of supervised release, Rocha participate in a mental health treatment
program. He argues that the district court erred in imposing this special
condition of supervised release because it is not reasonably related to the
statutory sentencing factors under 18 U.S.C. §§ 3583(d)(1) and 3553(a), such
that it imposes a greater deprivation of liberty than necessary to achieve the
statutory sentencing goals. For the reasons explained below, we 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    I. Background
       Rocha pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 Following the guilty plea,
probation prepared a presentence report (“PSR”) to determine Rocha’s
sentence. Relevant to this appeal, the PSR recommended that, as special
conditions of supervised release, Rocha be required to submit to a mental
health treatment program and anger management counseling.                         Probation
justified its imposition of the mental health treatment special condition,
stating,
              [Rocha] reported no history of mental or emotional
              health related problems. [Rocha]’s wife, Elizabeth
              Rocha, indicated that although [Rocha] has never been
              diagnosed with any mental health issues, she believes
              he may suffer from bi-polar disorder as there is a
              history in his family. Additionally, Mrs. Rocha related
              [Rocha] has episodes wherein he changes moods
              without reason. It is noted [Rocha]’s criminal history
              involves several arrests which involved assaultive
              behavior. [Rocha] would benefit greatly from mental
              health evaluation and treatment while of [sic]
              supervised release.
Probation justified the anger management counseling with nearly identical
language to the criminal history concern related to the mental health
treatment special condition, stating, “[Rocha]’s criminal history involves
several arrests which involved assaultive behavior. [Rocha] would benefit
greatly from anger management treatment while of [sic] supervised release.”
       The PSR reported Rocha’s lengthy criminal history, including
convictions 2 and other instances of criminal conduct where there was no final


       1 At the time of his arrest, Rocha was on supervised release following a guilty plea to
felony conspiracy to distribute cocaine.
       2 Rocha was adjudicated guilty for engaging in delinquent conduct, related to a charge
of felony aggravated assault by use of a deadly weapon (juvenile offense). He pleaded guilty
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adjudication. 3 Rocha denied being a gang member, but he had previously
identified as a member of Hermano de Pistoleros Latino and was classified as
a suspected member. Rocha objected to the PSR on grounds not relevant here.
       At the sentencing hearing, the judge detailed Rocha’s litany of offenses,
stating, “[Y]ou have a long and horrible record here.” She stated that Rocha
was “getting real close” to being a danger to the community due to his weapons
and drug use.         The judge expressed concern about Rocha’s path with
criminality, saying that her sentencing decision would focus on “punishment
and rehabilitation” after considering the 18 U.S.C. § 3553(a) factors. During
sentencing, she imposed, inter alia, supervised release special conditions
involving “mental health treatment in general” and anger management,
stating that “it’s very well documented on why we need that kind of assistance.”
Rocha’s attorney responded to the imposition of the special conditions, stating,
              With that said, Judge, I’m sorry to interrupt the Court.
              We don’t know that. He’s never been diagnosed. But
              there appears to be maybe a possibility of a mental
              condition that needs to be addressed. And I brought it
              up here at [GEO Correctional Facility] and obviously
              they say, you need to wait until you go to the Court
              and he’s actually in [Bureau of Prisons] custody. So,
              that may also be something that needs to be
              addressed.



to (1) misdemeanor assault causing bodily injury while in the custody of the Texas Youth
Commission; (2) felony possession of a controlled substance (cocaine); (3) misdemeanor
possession of marijuana; and (4) felony conspiracy to distribute cocaine.
       3 Rocha’s other criminal conduct includes one or more instances of the following:
(1) misdemeanor possession of marijuana (juvenile); (2) felony deadly conduct by discharging
a firearm (juvenile); (3) felony aggravated assault with a deadly weapon (juvenile);
(4) misdemeanor terroristic threat (juvenile); (5) misdemeanor evading arrest/detention
(juvenile); (6) misdemeanor escape from custody (juvenile); (7) misdemeanor failure to
identify a fugitive with intent to give false information (juvenile); (8) felony possession of a
controlled substance; (9) felony assault causing serious bodily injury; (10) misdemeanor
assault causing bodily injury to a family member; and (11) misdemeanor possession of
marijuana.
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In response, the judge stated,
            Okay. I’ll do that while you’re at the BOP, also. But,
            right now, with regard to supervised release, it’s
            mental health because we need to figure out -- I hope
            we figure it out before you get released -- that will be
            my goal. . . . [W]e need to get you evaluated from a
            mental health professional so that we can figure out if
            you have a diagnosis.
The judge subsequently addressed Rocha, stating,
            Your wife seems to think that you’re bi-polar. That
            may be the drug usage also, but there may be other
            issues that have not been diagnosed and maybe that is
            why you have a lot of -- had these issues from when
            you were a young child. So, we’re going to do mental
            health, anger management, but it’s imperative that
            while you are doing the drug treatment that you get
            your initialed consultation evaluation on the mental
            health so that we can do those things together. And
            then after that it will be the continued mental health
            treatment and anger management counseling.
Rocha’s attorney did not comment further on the imposition of the mental
health treatment special condition.
      Rocha appeals only the imposition of the mental health treatment special
condition of supervised release. The parties also dispute the standard of review
to be applied here. We determine the standard of review before turning to the
merits of this case.
                          II. Standard of Review
      We review conditions of supervised release for abuse of discretion.
United States v. Huor, 852 F.3d 392, 397 (5th Cir. 2017). However, when a
defendant does not object to the special conditions at the sentencing hearing,
plain error review applies.      Id. at 398.   Rocha argues that his attorney’s
statements at the sentencing hearing in response to the judge’s imposition of



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the mental health treatment special condition amounted to an objection to
preserve the error for appeal.
       We disagree. “A party must raise a claim of error with the district court
in such a manner so that the district court may correct itself and thus, obviate
the need for our review.” United States v. Gutierrez, 635 F.3d 148, 155 (5th
Cir. 2011) (quoting United States v. Mondragon–Santiago, 564 F.3d 357, 361
(5th Cir. 2009)). While Rocha’s attorney stated that “[w]e don’t know [if Rocha
has a mental health problem]” because “[h]e’s never been diagnosed,” she
immediately suggested that Rocha be evaluated for mental health issues when
he is in custody. The judge acknowledged the attorney’s request for mental
health counseling while in custody before reiterating her statements regarding
the importance of mental health counseling while on supervised release. The
judge agreed with Rocha’s attorney that Rocha did not have a currently
diagnosed condition, but noted that a mental health evaluation during
supervised release would help to determine Rocha’s mental health. In the
context of the hearing as a whole, it is clear that Rocha’s attorney was
concerned about Rocha’s mental health and, in her statements, was simply
trying to assure that Rocha would receive mental health treatment, at the
least, while in custody. 4 It is wholly unclear that Rocha’s attorney objected to
mental health treatment during supervised release. The sentencing judge had
no indication from the attorney’s statement that she should reconsider
imposing the mental health treatment special condition of supervised release.
To the contrary, the gist of the exchange would lead the district judge to think



       4 The government makes a related argument that Rocha’s attorney invited the error
by suggesting Rocha be evaluated for mental health issues. See United States v. Salazar, 751
F.3d 326, 332 (5th Cir. 2014) (“A defendant ‘may not complain on appeal of errors that he
himself invited or provoked the district court to commit.’” (ellipses and modification omitted)
(quoting United States v. Wells, 519 U.S. 482, 487–88 (1997))). Because we conclude that the
Government prevails even under plain error review, we need not address this argument.
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that Rocha’s attorney agreed with her, and Rocha’s attorney did not make any
further objections.
       Because Rocha did not preserve this issue on appeal, we review for plain
error. We find plain error only if the party challenging the sentence shows:
“(1) there is an error, (2) the error is plain, (3) the error affects substantial
rights and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Gordon, 838 F.3d 597, 604
(5th Cir. 2016) (alterations omitted) (quoting United States v. Garcia–Carrillo,
749 F.3d 376, 378 (5th Cir. 2014) (per curiam)).
                                   III.   Discussion
       “The district court has wide discretion to impose upon a defendant a term
of supervised release as part of its sentencing decision.” Id. However, special
conditions of supervised release must be “reasonably related” to at least one of
the following factors: (1) “the nature and circumstances of the offense and the
history and characteristics of the defendant”; (2) “afford[ing] adequate
deterrence to criminal conduct”; (3) “protect[ing] the public from further crimes
of the defendant”; and (4) “provid[ing] the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the
most effective manner.” 18 U.S.C. §§ 3553(a)(1), (2)(B)–(D), 3583(d)(1); see also
United States v. Weatherton, 567 F.3d 149, 153 & n.1 (5th Cir 2015). Even if
the special conditions can be justified under the § 3553(a) considerations, they
can “involve no greater deprivation of liberty than is reasonably necessary for
the purposes [of § 3553(a)(2)(B–D)].” 5 § 3583(d)(2). If the district court, based
upon the record, has a basis to believe treatment is necessary, then such a



       5The special conditions also must be “consistent with any pertinent policy statements
issued by the Sentencing Commission.” § 3583(d)(3). Rocha does not argue that his special
condition is inconsistent with Sentencing Commission policy statements. Therefore, this
argument is waived. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017).
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condition can be imposed. United States v. Alvarez, 880 F.3d 236, 240 (5th Cir.
2018) (per curiam); U.S.S.G. § 5D1.3(d)(5) (“If the court has reason to believe
that the defendant is in need of psychological or psychiatric treatment [the
following condition is recommended]—a condition requiring that the defendant
participate in a mental health program . . . .”).
      After noting that a mental health condition could be appropriate in
specified circumstances, the majority opinion in Alvarez concluded that the
district court erred in imposing the special condition where the district court
made no “specific factual finding” in support of the condition. Alvarez, 880 F.3d
at 240–241. Unlike that case, here the district court clearly articulated concern
regarding Rocha’s mental health (as did Rocha’s attorney) both prior to and
concurrent with sentencing him to the mental health treatment special
condition. In the context of the proceeding as a whole, the court appears to
have reasonably believed that mental health treatment would help to
rehabilitate Rocha. See United States v. Guerra, 856 F.3d 368, 369–70 (5th
Cir. 2017) (affirming as modified the imposition of a mental health condition
of supervised release, noting the defendant’s history of mental health issues
and the fact that, “[a]t sentencing, [the defendant’s] counsel likewise pointed
out his ‘mental health issues.’”).
      Second, in contrast to Alvarez, the PSR here did recommend mental
health treatment as a special condition of supervised release. See id at 369.
      Third, also unlike Alvarez, while Rocha has never been diagnosed with a
mental health condition, here, record evidence gave the court “reason to
believe” that Rocha may suffer from a mental health condition. See id. (noting
that “providing appropriate treatment for prisoners with known mental
problems is . . . a core duty of judges”); Gordon, 838 F.3d at 600, 604 (indicating
that the absence of record evidence of a questionable mental health history or
diagnosis as a factor in finding plain error).        Rocha’s wife had expressed

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concern that he was bipolar due to a history in his family. She noted that he
“has episodes wherein he changes moods without reason.” Further, unlike the
defendant in Alvarez, who had “no criminal history at all,” 880 F.3d at 241,
Rocha had extensive criminal history from a young age at the time of his
offense here. This was of prime concern to the court when considering Rocha’s
mental health. Therefore, the record here provides significantly more support
than the record in Alvarez for the imposition of mental health treatment
special conditions of supervised release.
      Rocha cites to our decision in Gordon for the proposition that a violent
criminal history cannot justify mental health treatment special conditions but
can only justify anger management special conditions of supervised release. In
Gordon, the parties agreed that the record did not support the imposition of
the mental health treatment special condition because it was in response to
the defendant’s history of anger and violence, which was addressed by the
anger management counseling special condition. 838 F.3d at 604. We agreed.
Id. at 604–05. However, this case is not Gordon. Here, the district court stated
that the mental health treatment special conditions were not solely for the
purpose of correcting a history of violent offenses; the purpose was to ensure
that, (1) should Rocha’s wife’s concerns be valid, Rocha is diagnosed with a
mental health condition, and (2) Rocha’s mental health needs are met given
his history of substance abuse and drug offenses, along with the violent
offenses. Anger management alone could not address each of those issues.
Because the special conditions serve different purposes, combining mental
health treatment with anger management counseling as special conditions of
supervised release is not plain error. See Gordon, 838 F.3d at 604–05.
      As a final note, we emphasize that the mental health treatment special
condition is modifiable while Rocha is on supervised release. 18 U.S.C. §
3583(e)(2); see United States v. Mendoza-Velasquez, 847 F.3d 209, 213–14 (5th

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Cir. 2017) (per curiam). The sentencing judge here was especially concerned
with ensuring that, if Rocha does have a mental health condition, that it is
diagnosed and then treated. If testing reveals that Rocha does not have a
mental health condition, he may move to modify at that time.
     AFFIRMED.




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