     Case: 11-10337     Document: 00511641936         Page: 1     Date Filed: 10/24/2011




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

                                                                            FILED
                                                                         October 24, 2011
                                     No. 11-10337
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

RICHARD LEON GOYETTE, also known as Michael Jurek,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:09-CR-11-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges
PER CURIAM:*
        Richard Leon Goyette, federal prisoner # 48199-051, pleaded guilty to
threats and false information and threats and hoaxes, in violation of 18 U.S.C.
§§ 844(e) and 1038(a)(1). He was sentenced to a total of 46 months in prison and
three years of supervised release and is serving his term of imprisonment. The
instant appeal challenges the district court’s refusal to modify his terms of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10337    Document: 00511641936     Page: 2   Date Filed: 10/24/2011

                                   No. 11-10337

supervised release. Because Goyette’s motion was filed prematurely, the district
court did not err in denying it.
      Relevant to this appeal, the following special conditions of supervised
release were imposed: (1) the defendant shall immediately pay restitution in the
amount of $87,734.40; (2) the defendant shall pay a fine of $5,000; (3) the
defendant shall provide to the probation officer any requested financial
information; (4) the defendant shall refrain from incurring new credit charges
or opening additional lines of credit without approval of the probation officer;
(5) the defendant shall provide to the probation officer complete access to all
business and personal financial information; (6) the defendant shall maintain
not more than one business and/or personal checking account, and shall not
open, maintain, be a signatory on, or otherwise use any other financial
institution account without prior approval of the probation officer; (7) the
defendant shall not transfer, sell, give away, or otherwise convey any asset with
a value of $500 or more without the approval of the probation officer; and (8) the
defendant shall participate in mental health treatment services and shall
contribute $5.00 per month for the cost thereof.
      Goyette failed to perfect a timely appeal, when the judgment embodying
these conditions was entered. Instead, he filed a motion to modify the conditions
of supervised release, which contends, inter alia, that he has satisfied the
restitution and fine order and that there was no evidence of mental illness to
support the condition of supervised release that he undergo mental health
treatment. See Letter from Assistant United States Attorney Richard B. Vance
reflecting that Goyette had satisfied his restitution, fine, and surcharge
obligations. The district court denied the motion without written reasons.
      A district court’s ruling on a request to modify the terms of supervised
release is reviewed for abuse of discretion. See United States v. Insaulgarat,
289 F. App’x 738, 740-41 (5th Cir. 2008) (holding that the district court’s denial



                                        2
   Case: 11-10337   Document: 00511641936      Page: 3   Date Filed: 10/24/2011

                                  No. 11-10337

of Insaulgarat’s request for a modification did not constitute an abuse of
discretion without deciding if a stricter standard applied).
      Goyette argues that because he satisfied the restitution and fine order, he
should be relieved from various financial conditions of supervised release. He
also contends that the “district court abused both its authority and discretion”
by requiring as a special condition of supervised release that he undergo mental
health treatment.    Goyette asserts that the “ambiguous language” of the
condition “indicates a probation officer, rather than the court, will decide
implementation of this special condition.” He maintains that it “is an Article III
constitutional violation for any entity other than a court to order and implement
a special condition involving forced treatment.” Goyette contends that he was
denied due process to challenge this special condition during sentencing.
      This court has routinely addressed the validity of conditions of supervised
release on direct appeal. See, e.g., United States v. Warden, 291 F.3d 363, 365
(5th Cir. 2002); United States v. Paul, 274 F.3d 155, 164-66 (5th Cir. 2001);
United States v. Mills, 959 F.2d 516, 519 (1992) (evaluating a condition imposing
an occupational restriction). This court has also entertained challenges by those
who are currently on supervised release. See Insaulgarat, 289 F. App’x at
739-41.
      Because Goyette is still serving his term of imprisonment and has not been
subjected to the conditions of supervised release, any challenge to the conditions
of supervised release is arguably premature. See BOP Inmate Locator (reflecting
a projected release date of June 5, 2012). “A claim is not ripe for review if it
rests upon contingent future events that may not occur as anticipated, or indeed
may not occur at all.” United States v. Carmichael, 343 F.3d 756, 761, 762 (5th
Cir. 2003) (internal quotation marks and footnote omitted) (finding that whether
defendants would be required to submit to DNA testing on supervised release
was a “a matter of conjecture” and declining to consider challenge to condition
of supervised release requiring collection of DNA sample). The Carmichael court

                                        3
  Case: 11-10337      Document: 00511641936     Page: 4   Date Filed: 10/24/2011

                                 No. 11-10337

distinguished cases that considered challenges to conditions of supervised
release on direct appeal; in those cases, the challenged conditions were not
contingent on future events. Id. at 762 n.25.
      Whether Goyette will be subjected to the financial conditions of his
supervised release, which he has arguably satisfied, and whether he will be
required to undergo mental health treatment are at this point entirely
speculative. Accordingly, we affirm the judgment of the district court without
prejudice to Goyette’s right to refile the motion after the commencement of his
supervised release.                                                 AFFIRMED.




                                       4
