     Case: 17-30764      Document: 00514550880         Page: 1    Date Filed: 07/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 17-30764                           FILED
                                                                         July 11, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff – Appellee

v.

EDDIE BERAUD, JR., also known as Eddie Berard,

              Defendant – Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CR-148


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Eddie Beraud, Jr. (“Beraud”), appeals the imposition of a special
condition of supervised released requiring him 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 release, the district court plainly erred. Because the condition is




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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reasonably related to one of the factors set out by 18 U.S.C. § 3553(a), the
district court did not commit plain error, and we AFFIRM.
                                         I.
      In 2014, federal agents with the Federal Bureau of Investigation, the
Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Drug Enforcement
Administration, and members of the New Orleans Police Department-led-
Multi-City Gang Unit launched an investigation into acts of violence and
narcotics trafficking linked to the New Orleans street gang known as the Mid-
City Killers (“MCK”). Among others, the investigation identified Beraud and
Henry Frazier, Jr. (“Frazier”), as associates, though not members, of MCK.
Beraud has a history of criminal convictions spanning twenty-three years,
including, among others, the illegal carrying of a weapon, possession of cocaine,
domestic assault, and aggravated battery.
      In October of 2014, Beraud and Frazier agreed to break into the home of
C.L. 1 in New Orleans, Louisiana, intending to steal multiple pounds of
marijuana and valuables they believed to be inside. Beraud targeted C.L.’s
house in particular to steal marijuana and as “payback to get his stuff back.” 2
Beraud and Frazier scouted the location and determined that the best way to
enter C.L.’s home would be through a rear window. On October 23, 2014,
Frazier broke the window and hid the shards of glass under the house, leaving
behind his fingerprints on the pieces. On October 24, Beraud, Frazier, and an
unnamed individual known to the U.S. Attorney (“Individual A”) proceeded to
the back of the house wearing ski masks and wielding firearms. Beraud and




      1 The government identifies C.L. and his wife only by their initials.
      2 Though Beraud stipulated to this motivation in the limited factual basis he
submitted with his guilty plea, the record sheds no further light on the origins of the
antagonism between Beraud and C.L.
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Individual A entered the house, while Frazier remained outside, as did two
other individuals who acted as lookouts during the burglary.
      While Beraud and Individual A searched the home, C.L.’s wife, I.L.,
entered the front door. Beraud and Individual A pointed their guns at her, zip-
tied her, and covered her face to prevent her from identifying them. They
demanded that I.L. direct them to the valuables in the house. With I.L.’s key,
Individual A let Frazier into the house, and the three armed men continued to
search the home, taking jewelry and a drug press. During their search, C.L.
also returned to the house. Beraud, Frazier, and their companion moved I.L.
to a bedroom to conceal her. One of the men fired a single shot at C.L., missing
him, and the trio fled out of the back door of the house carrying the jewelry and
drug press.
      Pursuant to an investigation, Frazier and Beraud were named in a two-
count Bill of Information filed in the Eastern District of Louisiana. Count one
charged Frazier and Beraud with conspiring to use, carry, and brandish
firearms during and in relation to a drug trafficking crime. Count two charged
them with conspiring to take and obtain personal property consisting of illegal
drugs and proceeds of trafficking by means of actual and threatened force,
violence, and fear of injury. On May 31, 2017, Beraud pleaded guilty to both
counts and the district court accepted his plea. In his written plea agreement,
Beraud agreed to waive his “right to appeal or contest his guilty plea,
conviction, sentence, fine, [and] supervised release” unless the district court
imposed “any . . . sentence in excess of the statutory maximum.” During his
sentencing, the district court did not specifically ask whether Beraud
understood “the terms of any plea-agreement provision waiving the right to




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                                          No. 17-30764
appeal,” 3 but it did inquire as to whether Beraud understood the terms of his
plea agreement and whether he had discussed the case with his lawyer.
      The      district   court   sentenced        Beraud   to     eighty-six   months    of
imprisonment and three years of supervised release. The supervised release
included several special conditions; the only one Beraud challenges is the
cognitive behavioral therapy (“CBT”) condition.                     In the Pre-Sentence
Investigation Report (“PSR”), the probation officer recommended that Beraud
be required to undergo “cognitive programming,” as follows:
      The 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 district court adopted the suggestion and ordered Beraud to “participate
in an approved cognitive behavioral therapeutic treatment program.” The
treatment program, the district court stated, would “help [Beraud] with social
decision making.” Beraud did not object to the inclusion of the CBT condition
in the PSR, nor did he object to its imposition at sentencing.
      Beraud timely appealed, challenging the inclusion of the CBT special
condition as a plain error on the part of the district court.
                                             II.
      As a preliminary matter, the government argues that the express
language in Beraud’s plea agreement waives his ability to appeal the
reasonableness of imposing CBT as a condition of supervised release. But in
the plea agreement, Beraud explicitly preserved the right to appeal a sentence
“in excess of the statutory maximum.”




      3   FED. R. CRIM. PROC. 11(b)(N).
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       Special conditions of supervised release are considered part of a
defendant’s sentence. 4 As for whether the appeal waiver bars the instant
appeal of the CBT condition, we pretermit the issue because, as described
below, the district court committed no plain error. 5
                                            III.
       The parties’ substantive disagreement concerns, as mentioned above,
whether the imposition of the CBT condition amounted to plain error
warranting vacatur. This Court “typically reviews the imposition of a special
condition of supervised release for abuse of discretion.” 6 But because Beraud
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.” 7
       Plain error exists if (1) there is an error, (2) the error is plain, and (3) the
error affects the defendant’s substantial rights. 8 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




       4  See United States v. Higgins, 739 F.3d 733, 739 (5th Cir. 2014) (“Because Higgins’s
challenge to the conditions of [supervised release] in the written judgment is an appeal of his
sentence . . . , it is covered by the waiver of appeal unless it constitutes a ‘punishment
imposed in excess of the statutory maximum’ as provided in the appeal waiver.”).
        5 See United States v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006) (concluding that this

Court’s jurisdiction is not dependent on the existence of a valid appeal waiver); see also
Higgins, 739 F.3d at 739 (“[A]n appeal regarding the conditions of [supervised release] must
be reviewed under 18 U.S.C. § 3583.”).
        6 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)).
        7 United States v. Peltier, 505 F.3d 389, 391–92 (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.”).
        8 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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reputation of judicial proceedings.” 9 “Meeting all four prongs is difficult, ‘as it
should be.’” 10
                                         IV.
      Beraud 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, he argues that because “there is absolutely
no evidence that Mr. Beraud 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 the reason given by the district court for
imposing the CBT condition—to improve Beraud’s “social decision making”—
was reasonably related to Beraud’s characteristics, the nature of his offense,
and the need to protect the public from further offenses.
      District courts have broad discretion to impose special conditions of
supervised release 11 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. 12




      9   Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks and
alterations omitted).
        10 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).
        11 United States v. Fernandez, 776 F.3d 344, 346 (5th Cir. 2015).
        12 United States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (internal quotation

marks and alterations omitted); see also 18 U.S.C. § 3583(d); 18 U.S.C. §§ 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D).
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Additionally, supervised release conditions must not involve any “greater
deprivation of liberty that is reasonably necessary” to achieve the purposes of
the latter three factors. 13 Finally, the conditions must be consistent with “any
pertinent policy statement” issued by the Sentencing Commission. 14
      Though this Circuit has never specifically addressed CBT as an
appropriate condition for the district court to impose, the Seventh Circuit, in
United States v. Siegel, recognized it to be beneficial in appropriate
circumstances. 15 That court concluded that the imposition of CBT was proper
in light of the defendant’s history of substance abuse. 16 It explained that
“[c]ognitive behavioral therapy isn’t just for the mentally ill; it can be an
effective tool to help anyone learn how to better manage stressful life
situations.” 17
      Here, the district court’s reason for imposing the condition—to improve
Beraud’s social decision making—is reasonably related to at least one of the
four statutory factors courts consider in imposing special conditions. 18 The
nature of the home invasion, as well as Beraud’s lengthy history of substance
abuse, domestic violence, and criminal behavior demonstrates anti-social
behavior and characteristics that could be effectively addressed by CBT. 19 The
imposition of CBT, then, is related to both “the nature and circumstances of
the offense and the history and characteristics” of Beraud. 20




      13 18 U.S.C. § 3583(d)(2); see Paul, 274 F.3d at 165; U.S.S.G. § 5D1.3(b).
      14 18 U.S.C. § 3583(d)(3).
      15 See United States v. Siegel, 753 F.3d 705, 716 (7th Cir. 2014).
      16 Id.
      17 Id.
      18 See 18 U.S.C. § 3553(a)(1), (a)(2)(D).
      19 See Siegel, 753 F.3d at 716.
      20 See 18 U.SC. § 3553(a)(1).

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       The facts in this case are not comparable to those in our unpublished
opinions in either United States v. Mahanera 21 or United States v. Garcia, 22 as
Beraud urges. In those cases, the district court gave no cogent explanation
why the challenged mental health treatment condition was imposed. 23 Here,
the district court gave a reason—if somewhat perfunctory—for the imposition
of the CBT condition: to “help the defendant with social decision making.” 24
Because the CBT condition is reasonably related to one of the factors set out
by 18 U.S.C. § 3553(a) and other circuit law supports the imposition of the
condition, any error by the district court was not clear or obvious. 25 Therefore,
the district court committed no plain error. 26
                                             V.
       For these reasons, we AFFIRM the district court’s judgment.




       21  611 Fed. App’x 201 (5th Cir. 2015).
       22  638 Fed. App’x 343 (5th Cir. 2016).
        23 In Mahanera, the defendant pleaded guilty to one count of trafficking in and

attempting to traffic in counterfeit goods. The district court there imposed special conditions
requiring the defendant: (1) to “participate in a program of testing and/or treatment for
alcohol and/or drug abuse as directed by the probation office”; and (2) to “not possess, ingest,
or otherwise use a synthetic cannabinoid or other synthetic narcotic unless prescribed by a
licensed medical practitioner.” 611 Fed. App’x at 202. Because the district court gave no
explanation for the imposition of these conditions and because the record reflected no
evidence of drug abuse, this Court vacated the challenged conditions and remanded the case
to the district court. Id. at 203–04.
        In Garcia, the district court imposed a mental health treatment, explaining only that
“I considered all of the [§ 3553(a) factors] and think this would be the best possible deterrent
and [will best] protect the public.” 638 Fed. App’x at 345 (second alteration in original). On
appeal, this Court vacated the condition, reasoning that a mere recitation of the factors did
not explain how the condition was reasonably related to them and that the record revealed
no evidence supporting a mental health treatment condition. Id. at 346.
        24 See Mahanera, 611 Fed. App’x at 202; Garcia, 638 Fed. App’x at 346.
        25 See Paul, 274 F.3d at 164–65; Siegel, 753 F.3d at 716.
        26 See Gordon, 838 F.3d at 604.

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