proceed good morning mate please the court the issue in this appeal is whether the district court committed reversible plane air by requiring this alberich to participate in mental and mental health program as a special condition of supervised release the court committed plain air because it did not provide sufficient reasons for imposing the program an issue that i do not believe is in dispute here today and because the record does not contain sufficient information from which at this court could infer that the program is necessary and not more burdensome the necessary to promote the goals of sentencing the district court did order that the condition right this isn't like some of those many appeals we've been having lately where it's the probation officer gets to determine kuranda and then those some of those get reversed and some of them that get modified and that sort of thing the district court said you must see this so we don't have that issue a delegation is correct no delegation issue the district court did impose mental health treatment as a condition of supervised release along with two other conditions one was that miss alvarez seek drug and alcohol counseling and the other was that she participated in a program to receive her ged those are not contested on appeal congress has limited the discretion of courts to impose conditions of supervised release by statute at eighteen united states code thirty five eighty three d and specifically it has limited the court's discretion to impose those conditions where they are reasonably related to the factors set forth in thirty five fifty three a one a to b c and d and where they involve no greater deprivation of liberty than is reasonably necessary to meet the goals of sentencing and where they are consistent with the policy statement set out by this insane commission in this case i'd like to give the court a spectrum three cases that this court has decided in the last year going on almost two years with regard to plane air and the appeal of a mental health condition and those cases other side of garcia and far away from terrell and i say that judge specifically because in garcia mr garcia had priors that this court said did not suggest the need for mental health say anything about needing mental health did it correct in fact it said that she reported no history of mental health treatment or emotional issues and the investigation turned out no history of cases judge much like cruden in the third circuit where there is an absolute there's the records devoid of evidence and the court should remand the case with an order to make a the condition do we have discretion or this is a plain air situation to have the court have a do over i understand that you would we do don't we yes you do and that's what we did in garcia didn't yes she did judge and the reason i believe that you did so there is because the record was unclear here i believe the record is clear that there is no evidence from which the court could impose a mental health condition specifically the evidence actually has several instances where the court could  have brought up the issue of mental health for example on the creature release at the record on appeal page twenty two the pretrial conditions do not indicate that she should seek mental health treatment or even have an evaluation although there's a space there in the condition where the court could impose that condition at rearrangement and at the first sentencing hearing and at the second sentencing hearing miss alvarez was asked by the court whether or not she had any mental health conditions that prohibited her from going forward in the proceeding and she said no at the final sentencing hearing this is record on appeal one forty seven the court specifically asked whether her mental health condition had changed during the course of proceedings and she said no getting back to the three cases i discussed that's important because as this court s would be sufficient to support a mental health condition and we have no evidence in this case that miss alvarez ever saw drugs like xanax value him so much or that she was ever prescribed drugs they're used to treat mental health conditions seems to me in looking at the transcript there may be more there than i saw nothing in the p s or but her counsel who were you counsel at the sentencing no judge that her counsel said alvarez's suffered extreme abuse and trauma in a very short life i'm not suggesting a light went off in the judge's mind at that but it seems to me the concern may well have ben there's a lot in her background that could create psychological other problems and but she didn't center for evaluations the center for treatment ordered treatment what do you make of the possible effect of counselor self counsel saying that alvarez had suffered a lot of mental trauma the judge that was in the context of a plea for mercy the defense attorney was asking for and the defense attorney was asking for a probated sentence and for education as a condition of treatment and there is record evidence that she suffered physical abuse and physical trauma her second the father of her youngest child who was currently incarcerated for capital murder miss alvarez his friend reported to the probation officer that she'd seen miss out whereas with a black eye that's not evidence of mental abuse or mental trauma and there's no evidence about how miss alvarez reacted to that physical abuse in the physical trauma what's the right way to do this if the district court had been concerned that this record had not been sufficiently developed but there's a lot in of the matter worried about the psychology of this woman from over could she have been sent by the district judge for a violation before making this sort of ruling i believe that that's possible i also believe judge that had there been notice in the pre sentence report that this would be a possible condition that we this would have been addressed at sentencing act in the pre sentence report there's actually notice about the educational condition and the alcohol and abuse condition but there is absolutely no notice of a possible mental health condition and isn't that normal that that would be in the p s are the ones we see if they need it i mean if there's some suggestion of it it's often in their i believe so judge it's also sometimes in the confidential sentencing recommendation that a judge receives that sentencing recommendation is under seal in this case and it's not been unsealed to my knowledge there is no mention of mental health condition in that in that document and getting back to your point judge southwick i don't doubt that the judge was attempting to address what she believed was a neat there is evidence that miss or not a need for give me for saying that what may have been one of her concerns the judge's concerns however if we look to the prudent case in the third cert third circuit and if i may just read the last paragraph where the judge specifically stated on the record that she was him that he was imposing that condition for the benefit of the of the defendant the court said we repeat that this conclusion is no reflection on the fairness integrity and reputation of the district court in this case no one has question that the district courts motivation in imposing the mental health condition was to help cruden the defendant break the cycle of or citizen into which he seems to have fallen indeed we are hesitant to thwart the district court's attempt to rehabilitate prudence but we conclude that the law compels us to do so and the law here compels the same result on plain air review where there is no need no evidence of a need for a mental health treatment the court cannot impose it it affects a defendant substantial rights because knowledge of treatment may be imposed on them it also is a permanent indication in the record that the defendant requires medical mental health treatment and it affects the fourth prong because it implicates significant privacy and autonomy concerns imposes  financial cost not just on the defendant but the state as well and lastly there's a potential stigma that's attached to court ordered mental health treatment i think there's a fourth factor as well and that is that in the policy factor in today's mental health environment insurance companies now will have access to this type of information and this will follow miss alvarez throughout her life when she's seeking what is now government required mental medical insurance so are we at liberty to go back and look at the published case and i've i believe that where the court fails to articulate the rationale that plane air has been committed in the case should be reversed vacated and this is one of those cases like in kara via where they were just doing these as a matter of course or do you think the court actually personally thought there's a problem here because she's got a child  got all these issues it's unclear from the record judge i do know did know that the mental health condition was sandwiched between the educational condition and the alcohol and drug abuse condition so i didn't know unclear whether this is something that the judge does in most cases or many cases but this jurisdiction was not just doing this all the time you don't know i do know that of the cases i've discussed i believe one or two of them are out of the same district court  you talked about that these special conditions in some places like the western district was doing certain conditions over and over again and now they're not i don't think but you don't know about this whether this is just kind of are asking the court to vacate the condition requiring mental health treatment and to remain and in order that the condition be excised from the judgment please the court loretta berry for the united states there is no clear and obvious error and the mental health special condition because the collective facts in both the p s r and in the sentencing transcript s that the district court complied with the statutory considerations of thirty five eighty three d those considerations are first her history and circumstances that's the first where did the district court say i'm doing these collective facts and i'm finding that this is appropriate in this context but where is that in the court and it's not say it explicitly but as this court has held in many published opinions where it can be of inferred from the record that you can't infer special conditions after the fact from the record peter sellers are can infer that at pages one fifty nine and one seventy one your honor that the court was concerned with the factors of deterrents and protection of the public and that distinguishes the facts of this case from garcia and prudent because here there was a constant dialogue between the district court and this defendant about the facts of her offense and she was unwilling to truthfully debrief so much so that at pages one fifty nine to one seventy one the court stated i believe that your incredible your very dishonest of the details of the joint transportation offense she initially denied knowing that there was an alien in the trunk of her car she was unable to appreciate the ramifications of her offense she lied to the district court about where her children were while she was committing the so you're saying that based upon dishonesty the we can infer that it's appropriate to order a mental health condition i'm saying that one of the factors of consideration is deterrence and protection of the public deterrence would go toward her and a bill of the to appreciate the law and the ramifications what's mental health trying to treatment have to do with that it would enable her perhaps to discuss to understand the ramifications of her offense to understand that putting someone in a trial is that now a record at all or you just sit in it and pages one fifty nine to one that a mental health treatment  her with deterrence that was a concern that the court had about rehabilitating her the way we want to said mental health treatment will help in that the court doesn't have to articulate that now that it's more deadly in writing about that mental health treatment helping with anything correct but as this court has held where the court where the fifth circuit can infer what the reasons were that were supported under plain error of you again your honor under  perhaps if it had been brought to the court's attention the court might have articulated on the record very clearly but it wasn't brought to her attention now the facts here consistent with the goal of supervised release which this court has held in heredia whole being and in that the general goal of supervised release is rehabilitation and this are you saying for everybody that they could benefit from mental health to get rehabilitated better no i'm saying that that that someone in this case where history and circumstances that were described by her own defense counsel to the court as being my client is suffered extreme abuse and trauma and so in what i had a really rough life needs to get mental health counseling i mean in that order to i think that's an excellent point you on the p s r over that is in the p s are your i know that she has severe trauma and needs counseling well certainly the court can rely on what her own defense counsel is telling the court at the sentencing hearing which is exactly what say to answer that question about why it's not a matter of course and white's not boilerplate is because the district court spent so much time at the sentencing hearing discussing with her the facts of her offense and discussing whether she was able to of whatever else had occurred that it would be helpful for to was just said at the hearing to the judge that would be helpful for the woman to go through drug and alcohol treatment yes it did is mental health something that was added with his board a plate or otherwise in the actual written senates yes never having been mentioned and the other special conditions had been mentioned oh no it was it was it was all the court's not and not forced to rely on the facts in the p s r the court can conduct its own independent i guess investigation of the facts in front of it and then talking to the fended at the sentencing hearing is i think when it really became clear that this this defendant was completely unable to appreciate what she had done put the community at risk didn't appreciate that fact she's getting a relatively short sen of eighteen months she's getting out in six months from the date of sentencing and and the facts of her past based on what her counsel said the facts of deterrence and protection gave the court at least reason to believe that perhaps th defendant based on what her counsel said could benefit from at least a an evaluation when we're talking about mental health treatment you know it could even be something like speaking with a social worker or something to that effect prudent in those cases there was absolutely no sentencing discussion back and forth between the district court and the defendant who was in front of him at the time there's certainly no liberty deprivation in this case your honour's because the discretionary factor but that doesn't absolutely cure the problem well if there's any are you are you referring to a potential stigma that is that what you're referring to the fact that you  be the fact that you can ask for to be changed does not say that it's ok then that's true but congress created that remedy within the statute to recognize that it could be modified and i think in this situation the district court considered all of the facts in the record and was not bound by what was in the p s r but did not say that it considered the facts related to this point that it wasn't raised before the court the court did not have no one objected but the court had  separate and apart from whether anybody objected to say i believe the special conditions are appropriate in this case because of x y z that's a normal syncing and i think the court did do that and i think the court exercised her duty of pages one fifty nine a once o we beaten this horse quite a bit so i'm not going to argue with you further whether the court said i believe this condition is appropriate for x y z reasons i think it can be inferred from from the record your honor with the for us cannot demonstrate that this condition seriously affect the integrity and public reputation of the proceedings even under the language of the eskil want a majority there's no grave injustice no no grave miscarriage of justice here because of the horrific facts of the p s r that her counsel pointed out the district court at sentencing position that there is some new standard called shock the conscience  we would on as a matter of orderliness that's what the bar post opinion held yesterday and we held that we explain orderliness yes that is true with respect to any potential stigma i believe that is balanced by the general goal of rehabilitation under the general goals of supervised release that have been set forth by congress again under the fourth prong i respectfully request that the are you asking for us to remain for recent sing if you were not successful or are you very do you not want to do over if we are not successful i would respectfully request the court i mean for a senate saying if we're not successful but again i do not believe that what case would you cite that that was appropriate and we did that in the in the garcia case and there's no further questions i respectfully request that the court of from the judgment thank you argument is that this is a very important area of these special conditions and we have not totally clear law but but it's certainly of fairly directive that special condition should have an explanation from the district judge  and should be based on some sort of evidence in the record mental health condition is in a special category maybe maybe not what is the narrowest way from your viewpoint for you to  when you find it just for the absence of any articulation and then go through the four you know plain error standards but they might do so in part as the last thing that you or your friend on the other side was referring a fourth factor player so is that is this a special category of condition that makes it more difficult for us to refer to you were arguing that the ramifications of the mental health condition is that why is this in a category by itself a special special condition i believe yes judge mental health is a very serious issue and the congress requires courts to articulate a rationale specifically with respect to something like mental health which is a discretionary condition of probation that eighteen thirty five sixty three  that there should be a basis for a need is what the statute requires and here there is no basis for need this court has found in the past that prior prescriptions for drugs that are prescribed to treat mental health conditions is sufficient to meet the need but we don't have that here and so i think that if we focus of the court were to focus on the language of the statute and the need for medical treatment mental health treatment psychiatric treatment psychological treatment then courts would be careful to send defendants for evaluations include the suggested condition in the p s r so that it can be fully joined at sentencing well defense counsel needs to articulate a reason and so although we are this is on plane air review it was there was no notice if you look at the last two pages of the sentencing transcript it appears that miss alvarez and her counsel were more concerned about whether she'd be able to remain free pending designation to care for her children than anything else there's two pages of the back and forth over whether she could do that and so yes this  is before the court on plane air refute this court has seen cases like this before but never were client a defendant has no criminal history and there's no evidence of a need thank you all right thank you thank you