     Case: 15-40252      Document: 00513364440         Page: 1    Date Filed: 02/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40252
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 1, 2016
                                                                           Lyle W. Cayce
              Plaintiff–Appellee,                                               Clerk

v.

RUBEN GARCIA,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-810


Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       Ruben Garcia appeals the district court’s sentence requiring him to
obtain mental health treatment as a special condition of supervised release.
We vacate the challenged condition and remand for proceedings consistent
with this opinion.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40252
                                        I
      Garcia pleaded guilty to transporting undocumented aliens in violation
of 8 U.S.C. § 1324 and was sentenced to sixteen months of imprisonment,
within the range recommended by the United States Sentencing Guidelines,
followed by a three-year term of supervised release. The district court imposed
special conditions of supervised release that included the requirements that
Garcia obtain drug treatment, participate in anger management counseling,
and participate in a mental health program. It is the condition of mental
health treatment that Garcia appeals.
      Prior to sentencing, the United States Probation Office prepared a
pre-sentence report (PSR) detailing Garcia’s criminal history and personal
background. The PSR indicated that Garcia had past convictions for theft,
resisting arrest, and possession of cocaine. It further detailed numerous prior
arrests for theft, driving while intoxicated, driving without a license, assault,
failure to identify, and domestic violence. The PSR concluded that Garcia
“reported no history of mental or emotional health related problems and this
investigation has revealed no information to indicate otherwise.” Despite this
conclusion, the Probation Office suggested in a subsequent confidential
sentencing recommendation that the court require mental health counseling
“due to the nature of some of the defendant’s prior offenses.”
      At Garcia’s sentencing hearing, the court adopted the PSR’s factual
findings. The court stated that it used “the factors in 3553(a) to come up with
a place in the Guidelines. . . . I considered all of them and think this would be
the best possible deterrent and [will best] protect the public.” Garcia did not
object to the mental health treatment requirement.
      Relevant to this appeal, the court’s subsequent written judgment stated
the following:


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                                          No. 15-40252
       [T]he defendant is required to participate in a mental health
       treatment 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.
       Garcia has appealed. He contends that the district court committed
reversible plain error because it failed to explain how the mental health
condition was reasonably related to the pertinent statutory factors, and argues
that no justification for the condition can be inferred from the record. He asks
this court to vacate and remand to allow the district court to reconsider the
condition “in light of any facts not already contained in the record.”
                                                 II
       As Garcia failed to challenge the condition in the district court, our
review is limited to plain error. 1 Garcia must show “(1) there is error . . . ; (2) it
is plain; and (3) it affects [his] substantial rights.” 2 Even if Garcia meets this
burden, we have discretion to correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” 3
       Though a district court may impose any condition of supervised release
it considers to be appropriate, three limitations curtail this discretion. 4 First,
a condition must be “reasonably related” to one of four 5 statutory factors
enumerated 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

       1   United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       2   Id. at 392.
       3   Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
       4   United States v. Fields, 777 F.3d 799, 802-03 & n.12 (5th Cir. 2015).
       5United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011) (“A condition of supervised
release must be related to any of these factors, though not necessarily all of them.”).
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                                          No. 15-40252
       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. 6
Second, a condition cannot “impose any ‘greater deprivation of liberty than is
reasonably necessary’” for the purposes of the latter three factors. 7 Finally, it
must be consistent with pertinent policy statements issued by the United
States Sentencing Commission, one of which is relevant here. 8 According to
the Commission, mental health treatment is justified “[i]f the court has reason
to believe that the defendant is in need of psychological or psychiatric
treatment.” 9
       A district court is required by statute to provide reasons justifying the
imposition of special conditions. 10 In United States v. Salazar, we held that a
district court “abuse[s] its discretion by not explaining how [a special condition]
is reasonably related to the statutory factors.” 11 When a court so errs, a
sentence may nevertheless be upheld if the “court’s reasoning can be inferred



       6 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)).
       7   Id. (quoting 18 U.S.C. § 3583(d)(2)).
       8   Id. (citing 18 U.S.C. § 3583(d)(3)).
       9   U.S.S.G. § 5D1.3.
       10 See 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular sentence.”); see also United States v.
Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citing United States v. Warren, 186 F.3d 358, 366
(3d Cir. 1999)).
       11 Salazar, 743 F.3d at 451; see also United States v. Gilman, 478 F.3d 440, 446 (1st
Cir. 2007) (“While we have on occasion gone to significant lengths in inferring the reasoning
behind, and thus in affirming, some less-than-explicit explanations by district courts, there
are limits.” (citations omitted)); United States v. Davis, 452 F.3d 991, 995-96 (8th Cir. 2006)
(“Judges have broad discretion to tailor conditions of supervised release . . . . The public
expects the courts to exercise that discretion, not impose a special condition as a matter of
course.”); Warren, 186 F.3d at 366 (“[C]ourts of appeals have consistently required district
courts to set forth factual findings to justify special probation conditions.”).
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                                        No. 15-40252
after an examination of the record.” 12 But when the “district court’s rationale
is unclear, ‘it is incumbent upon us to vacate, though not necessarily to
reverse.’” 13
       We conclude that Garcia has met his burden to show error. The district
court’s reiteration of two of the § 3553(a) factors, deterrence and protection of
the public—did not adequately explain how the mental health condition
reasonably related to the cited statutory factors.
       It is not obvious from the record that there is a basis for the mental
health condition. The Probation Office stated that its recommendation was
based on “the nature of some of [Garcia’s] prior offenses.” But there is no
explanation of how his prior offenses reflect or suggest the need for mental
health treatment. “[T]his error is plain because Salazar does not leave it open
to reasonable dispute.” 14
       The imposition of the mental health treatment condition affects Garcia’s
substantial rights. The treatment is to be provided at his expense, if he is able
to afford it, and the condition constitutes an indication in a public record that
his mental condition is such that he requires mental health treatment.
       The fourth prong of plain-error review requires us to consider whether
we should exercise our discretion to remedy the error. The Government argues
that we should not because Garcia may petition the court to modify the
condition pursuant to 18 U.S.C. § 3583(e)(2). In United States v. Prieto, we
declined to exercise our discretion, noting that “a defendant faces an uphill
battle when he seeks to convince us that a modifiable condition ‘seriously


       12 Salazar, 743 F.3d at 451 (quoting United States v. Perazza–Mercado, 553 F.3d 65,
76 (1st Cir. 2009)).
       13   Id. (quoting Gilman, 478 F.3d at 446).
       14United States v. Prieto, 801 F.3d 547, 553 (5th Cir. 2015) (per curiam) (citing
Salazar, 743 F.3d at 451).
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                                           No. 15-40252
affect[s] the fairness, integrity or public reputation of judicial proceedings.’” 15
But this bar is not insuperable, 16 and we have exercised our discretion when
the particular facts of a case warrant relief. 17 In the present case, there are
significant autonomy and privacy concerns inherent in mental health
treatment, as well as the financial cost to Garcia and the state. 18 There is also
a potential stigma in being required by a court to submit to mental health
treatment.
                                       *        *         *
       For the foregoing reasons, we VACATE the condition of Garcia’s
supervised release requiring him to participate in mental health treatment.
We REMAND for the district court to reconsider whether to impose the
condition.




       15Id. at 554 (alteration in original) (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)).
       16 Id. (“[T]he modifiable nature of a special condition is not dispositive . . . .”). We of
course chose not to exercise our discretion in Prieto. See Prieto, 801 F.3d at 554-55. But
unlike Prieto, Garcia had no notice that the PSR recommended the challenged special
condition. Id. at 554. And Garcia’s criminal history, as opposed to Prieto’s, gives no
indication that mental health treatment, separate and apart from drug treatment and anger
management counseling, would be necessary or beneficial. Id. Moreover, the privacy and
financial concerns arising from a mental health treatment condition arguably create a
greater injustice than a condition banning the possession of sexually explicit materials, the
special condition at issue in Prieto. Id. at 5493.
       17 See, e.g., United States v. Mahanera, 611 F. App’x 201, 205 (5th Cir. 2015) (per
curiam); United States v. Flores-Guzman, 121 F. App’x 557, 558 (5th Cir. 2005) (per curiam);
see also United States v. Davis, 452 F.3d 991, 995-96 (8th Cir. 2006); United States v. Warren,
186 F.3d 358, 362, 366-67 (3d Cir. 1999).
       18 United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (“[I]mposition of a
condition of supervised release creates significant costs for the probation system . . . .”).
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