     Case: 17-30003      Document: 00514610798         Page: 1    Date Filed: 08/22/2018




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

                                                                                FILED
                                      No. 17-30003                        August 22, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff – Appellee

v.

VERONIQUE ALLEN,

              Defendant – Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Veronique Allen (“Allen”) appeals the imposition of a special condition of
supervised release requiring her to participate in a cognitive behavioral
therapeutic treatment program, arguing that, because the condition does not
reasonably relate to the statutory factors governing special conditions of
supervised release, the district court plainly erred. Because the district court
did not explain how the condition is reasonably related to one of the factors set
out by 18 U.S.C. § 3553(a), and it is not obvious from the record that there is a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30003
basis for the special condition, we vacate the challenged condition and remand
for proceedings consistent with this opinion.
                                       I.
      Allen   began   transporting    cocaine   in   the   mid-2000s    for   her
coconspirators, Donald Sampson (“Sampson”) and Christopher Taylor
(“Taylor”).   In furtherance of the conspiracy, she repeatedly transported
cocaine and proceeds from the sale of cocaine in a vehicle between Houston,
Texas, and Bogalusa, Louisiana. She ceased operating as a courier between
2009 and 2011 after Sampson moved from Houston to Bogalusa but resumed
when Sampson moved back to Houston in 2011.
      On April 10, 2012, law enforcement officers initiated a traffic stop on the
vehicle Allen was driving. Allen consented to a search of the vehicle, and the
officers discovered $20,320 concealed in a container of Gain laundry detergent.
On April 13, 2013, law enforcement officers again initiated a traffic stop on the
vehicle Allen was driving. Again, Allen consented to a search of the vehicle, at
which point the officers discovered 2,203 grams of cocaine concealed inside a
sealed container of Tide laundry detergent.
      On April 30, 2013, Allen was arrested. On February 20, 2014, Allen was
convicted in Louisiana state court for possession with the intent to distribute
cocaine and sentenced to eighteen years of imprisonment. Subsequent to a
writ of habeas corpus ad prosequendum, Allen was transferred to federal
custody on March 11, 2015. On June 15, 2016, Allen pleaded guilty to the
federal offense of conspiracy to possess with intent to distribute five or more
kilograms of cocaine hydrochloride, and the district court accepted her plea.
Following Allen’s guilty plea, she was interviewed by a probation officer for the
purposes of preparing her Pre-Sentence Investigation Report (“PSR”).
      According to the PSR, Allen’s parents divorced when she was in third
grade, and she thereafter remained in her mother’s care. After her parents
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                                       No. 17-30003
were divorced, Allen’s mother “was involved in two relationships that were
abusive,” and Allen witnessed some of the abuse. Allen also became aware at
some point that “her sister was being molested by one of her step-brothers.”
She also reported being married to a man in 2006, whom she described as
“verbally and emotionally abusive.” 1
       Allen reported “having no history of mental health or emotional
problems” and was not, at the time of the interview, “taking any prescription
medication for mental health or emotional concerns.” She also reported “no
history of substance abuse problems and no history of substance abuse
treatment.” In the PSR, the probation officer recommended that Allen be
required to undergo “cognitive programming,” as a special condition of Allen’s
supervised release as follows:
       [T]he defendant shall participate in an approved cognitive
       behavioral therapeutic treatment program and abide by all
       supplemental conditions of treatment. The defendant shall
       contribute to the cost of this program to the extent that the
       defendant is deemed capable by the United States Probation
       Officer.
The PSR provided no explanation for this cognitive behavioral therapeutic
treatment (“CBT”) condition, and Allen did not object to the PSR.
       In her allocution, Allen apologized to her children, family, community,
and the court. She took full responsibility for her actions and remarked that




       1 Allen has three adult children in their early twenties, each of whom is in good health
and employed. Her oldest daughter is enlisted in the United States Air Force. She also has
one minor child, who is in good health and resides with his father. Allen has a good
relationship with all of her children and both of her parents. She was employed by Kids
Footlocker in Houston from January 2003 to January 2013, as a store manager. From April
11, 2013, until her arrest, Allen was employed by Citi Trends as a store manager. Allen
graduated high school in 1990 and has been enrolled several times in various higher
education and vocational institutions; from 2011 until her arrest, she was enrolled in Lone
Star College in Houston.
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                                       No. 17-30003
she had “come to terms with [her] faults,” had “made very poor decisions,” and
was “ashamed of the decisions.”
       On December 21, 2016, the district court reluctantly imposed a sentence
of 120 months of imprisonment—the mandatory minimum—to be followed by
five years of supervised release. 2          In imposing the special conditions of
supervised release, the district court ordered that Allen “participate in an
approved cognitive behavioral treatment program.” The district court made no
findings as to why such a treatment program was necessary. Allen did not
object to the special condition.
       Allen timely appealed, challenging the inclusion of the CBT special
condition in her sentence.
                                             II.
       This Court “typically reviews the imposition of a special condition of
supervised release for abuse of discretion.” 3 But because Allen failed to object
either to the inclusion of the CBT special condition in the PSR or to its
imposition at sentencing, we review for plain error, which requires
“considerable deference to the district court.” 4
       Plain error exists if (1) there is an error, (2) the error is plain, and (3) the
error affects the defendant’s substantial rights. 5 If these three prongs are
satisfied, we have “the discretion to remedy the error—discretion which ought
to be exercised only if the error seriously affects the fairness, integrity or public


       2  Allen became eligible for release from state incarceration in March 2018 based on
good time behavior credit. The federal sentence was imposed to run concurrent to the state
sentence, with credit for time served dating to her arrest on April 30, 2013.
        3 United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016) (citing United States v.

Rodriguez, 558 F.3d 408, 411 (5th Cir. 2009)).
        4 United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007); see FED. R. CRIM. PROC.

52(b) (“A plain error that affects substantial rights may be considered even though it was not
brought to the court’s attention.”).
        5 Gordon, 838 F.3d at 604 (quoting United States v. Garcia-Carrillo, 749 F.3d 376, 378

(5th Cir. 2014) (per curiam)).
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                                       No. 17-30003
reputation of judicial proceedings.” 6 The exercise of discretion at the fourth
prong requires a “case-specific and fact-intensive inquiry,” as “[t]here may be
instances where countervailing factors” convince this Court that the fairness,
integrity and public reputation of the proceedings “will be preserved absent
correction.” 7
                                            III.
       Allen argues first that the district court erred by failing to explain how
the CBT condition was reasonably related to the statutory factors articulated
in 18 U.S.C. § 3583(d)(1). Second, she argues that because “there is absolutely
no evidence that [she] suffers from any psychological or psychiatric issues
needing mental-health treatment of any sort, let alone[] ‘cognitive behavioral
therapy,’” there is no reasonable relationship between the CBT condition and
the statutory factors.
       The government counters that, though the district court gave no reasons
for imposing the CBT condition, its reasoning can be inferred from the record
in two ways. First, the government argues that the CBT condition addresses
recidivism concerns because of Allen’s behavior during the duration of the
conspiracy, which included a return to trafficking after a two-year break.
Second, the government contends that the CBT condition addresses Allen’s
rehabilitative needs, which the government argues are “evidenced by her
statements in the PSR and to the district court, to which she expressed her
shame at her past decisions, her desire to be a better person, and her
commitment to do everything in her power to make that happen.”




       6 Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks and
alterations omitted).
       7 Rosales-Mirales v. United States, --- U.S. ---, 138 S. Ct. 1897, 1909 (2018) (quoting

Puckett, 556 U.S. at 142)).
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                                        No. 17-30003
       District courts have broad discretion to impose special conditions of
supervised release, 8 so long as they are “reasonably related” to the factors set
forth in § 3553(a)(1), (a)(2)(b), (a)(2)(c), and (a)(2)(d):
       (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. 9
But supervised release conditions must not involve any “greater deprivation of
liberty that is reasonably necessary” to achieve the purposes of the latter three
factors. 10 Finally, the conditions must be consistent with “any pertinent policy
statement” issued by the Sentencing Commission. 11
       “Congress requires the sentencing court to state ‘the reasons for its
imposition of the particular sentence.’” 12            Generally, “[w]here the district
court’s rationale is unclear, it is incumbent upon us to vacate, though not
necessarily to reverse.” 13 But in some cases, where the district court fails to
give reasons, this Court may affirm the imposition of a supervised release
condition if the district court’s reasoning can be inferred from an examination
of the record. 14



       8  United States v. Fernandez, 776 F.3d 344, 346 (5th Cir. 2015).
       9  United States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (internal quotation marks
and alterations omitted); see 18 U.S.C. § 3583(d); 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D).
        10 18 U.S.C. § 3583(d)(2); see Paul, 274 F.3d at 165; U.S.S.G. § 5D1.3(b).
        11 18 U.S.C. § 3583(d)(3).
        12 United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (quoting 18

U.S.C. § 3553(c)).
        13 Id. (internal quotation marks omitted).
        14 Id. (citing United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir. 2009)); see

United States v. Guerra, 856 F.3d 368, 370–71 (5th Cir. 2017) (discerning the district court’s
intentions as to the details of the mental health and drug treatment programs imposed as a
special condition of defendant-appellant’s supervised release by reviewing the PSR and
defense counsel’s representations to the court).
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                                      No. 17-30003
       This Court has clarified that, when reviewing the imposition of a special
condition for plain error, a district court plainly errs when it fails to explain
the reasoning for imposing a special condition, and the special condition is not
reasonably related to the statutory factors. 15 And an appellant’s substantial
rights are affected if, had the error not occurred, the appellant “would not have
been subjected to the unwarranted special condition because no record
evidence reveals any justification for the condition.” 16 In cases concerning a
special condition implicating the privacy concerns and potential stigma
surrounding medical treatment, we have exercised our discretion to remedy a
district court’s plain error. 17
       Here, the district court erred, its error was plain, and the error affected
Allen’s substantial rights. 18 In imposing the CBT condition in Allen’s sentence,
the district court gave no explanation for its doing so. 19 Moreover, the record
is bereft of evidence by which we can infer the district court’s reasoning: Allen
had a criminal history level of zero prior to the imposition of sentence, and, at
allocution, she showed both remorse for her actions and a determination to
make better decisions in the future. 20 Therefore, the district court committed
plain error that affected Allen’s substantial rights, satisfying the first three
prongs of the plain-error analysis. 21 Moreover, we are persuaded that, because



       15 United States v. Prieto, 801 F.3d 547, 553 (5th Cir. 2015).
       16 Id. (internal citations omitted).
       17 E.g. Gordon, 838 F.3d at 605; United States v. Garcia, 638 Fed. App’x 343, 346–47

(5th Cir. 2016). Although unpublished opinions are not precedential, they are persuasive.
See Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
       18 See Prieto, 801 F.3d at 553.
       19 See Salazar, 743 F.3d at 451; Prieto, 801 F.3d at 553.
       20 See Salazar, 743 F.3d at 451 (citing Perazza-Mercado, 553 F.3d at 76).
       21 See Gordon, 838 F.3d at 604 (quoting Garcia-Carrillo, 749 F.3d at 378). Indeed,

Allen does not appear to be the classic candidate who might benefit from CBT, given her
family support system and criminal history. See United States v. Siegel, 753 F.3d 705, 716
(7th Cir. 2014). The Seventh Circuit has described CBT as not “just for the mentally ill” but
rather as an “effective tool to help anyone learn how to better manage stressful life
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                                       No. 17-30003
the treatment required to fulfill a CBT condition potentially carries
unwarranted stigma, it is appropriate for us to exercise our discretion under
the fourth prong of the plain-error analysis. 22
                                             IV.
       For these reasons, we VACATE the condition of Allen’s supervised
release requiring her to participate in cognitive behavioral therapeutic
treatment. We REMAND for the district court to reconsider whether to impose
the condition and to give reasons if it elects to do so.




situations.” See id. It is appropriate, particularly, in the context of a history of substance
abuse and recidivism. See id.
       Recently, this Court, in United States v. Beraud, an unpublished opinion, affirmed the
imposition of a CBT condition even where there was no evidence that the appellant suffered
from psychological or psychiatric issues. --- Fed. App’x ---, 2018 WL3409603, at *3 (5th Cir.
July 11, 2018). The facts of this case are easily distinguishable from those in Beraud.
Importantly, the district court in Beraud articulated a reason for the imposition of CBT—to
improve social decision making—that was reasonably related to “at least one” of the statutory
factors considered in imposing special conditions. Id. Moreover, unlike Allen, the appellant
in Beraud had a lengthy history of “substance abuse, domestic violence, and criminal
behavior demonstrat[ing] anti-social behavior and characteristics that could be effectively
addressed by CBT,” from which the district court’s reasoning could have been inferred even
had the district court failed to give a reason. See id.
       22 See, e.g., Gordon, 838 F.3d at 605; Garcia, 638 Fed. App’x at 346–47.

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