### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 41081

UNITED STATES OF AMERICA,
Plaintiff

− Appellee ,

v ersus MARIO ALBERTO GARRIDO,
Defendant

− Appellant

.

Appea ls from the United States District Court for the South ern District of Texas No. 7:16

- CR

- 1173

- 1

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges

. PER CURIAM: *
Mario Garrido appeals two special conditions of his term of supervised release (“SR”). W e modify the sentence and affirm it as modified.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 16, 2018

Lyle W. Cayce Clerk Case: 17-41081 Document: 00514684252 Page: 1 Date Filed: 10/16/2018No. 17

- 41081

2 I. Police stopped Garrido for a traffic violation. When a d rug - sniffing dog indicated that the car contained drugs , the officers searched the trunk and found five packages of cocaine. Garrido gave consent to search the rest of the car, and police found anot her fourteen packages with cocaine. Garrido pleaded guilty of possession with intent to distribute five or more kilo grams of cocaine in viola tion of 21 U.S.C

. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2

. The district court sentenced him to the statutory minimum of 120 months in prison, five years of SR , and a $100 special assessment. The first special condition requires Garrido to “participate in a mental health program as deemed necessary and approved by the probation officer” and pay the costs of the program “ based on [his] ability to pay as deter mined by the probation officer.” The second requires participation “ in a pro gram, inpatient or outpatient, for the treatment of drug and/or alcohol addi c tion, depende ncy or abuse

. . . as instructed and deemed necessary by the pro ba tion officer. ” 1 Garrido challenges both conditions as not supported by the record

. II. Garrido did not object to the substance

- abuse

- treatment conditions in the district court , so we review for plain error. United St ates v. Alvarez , 880 F.3d 236, 239 (5th Cir. 2018) (per curiam)

. To prevail, Garrido must show that (1) there was an error not intentionally relinquished or abandoned ; (2) the

error was plain; and (3) the error affects his substantial rights. See Rosale s Mireles v. United States , 138 S. Ct. 1897, 1904 (2018). I f he meets th at burden, we have discre tion to correct the error , but only if “ allowing th[e] error to stand seri ously affects the fairness, integrity, or public reputa tion of judicial

1 Garrido’s brief acknowledges that no issue exists as to whether the district court impermissibly delegated its Article III sentencing authority to the probation officer. Case: 17-41081 Document: 00514684252 Page: 2 Date Filed: 10/16/2018No. 17

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3 proceedings.” United States v. Duke , 788 F.3d 392, 396 (5th Cir. 2015) (per curiam). Sentencing courts have broad discretion to impose special conditions of SR, but th at discretion is limited by three requirements. 18 U.S.C. § 3583(d); Alvarez , 880 F.3d at 239. First, a special condition must be reasonably related to “ (1) the nature and circumstances of the offense and the history and char

acteristics of the defendant s”; (2) the need for the sentence adequate ly to deter crime ; (3) the need to protect th e public ; or (4) provid ing the defendant “with needed” treatmen t “in the most effective manner. ” 18 U.S.C. § 3553(a)(1) , (2)(B)

– (D). Second, a special condition must “involve[] no greater deprivation of lib

erty than is reasonably necessary” to advanc e the goals of deterrence, public protection, or needed corrective treatment. 18 U.S.C. § 3583(d)(2). In other words, a special condition must be “narrowly tailored” so as not to deprive the defendant of more liberty than necessary to serve the goals in § 3553(a)

. Duke , 788 F.3d at 398. Third, a special condition must be “consistent with any pertinent policy statements” in the United States Sentencing Guidelines. 18 U.S.C. § 3583(d)(3). Two apply here. The g uidelines permit special condition s requi r ing participation in an approved “mental health program” if “the court has reason to believe that the defendant is in need of psychological or psychiatric treatment.” U.S.S.G. M ANUAL § 5D1.3(d)(5 ) ( U.S. S ENTENCING C OMM ’ N 2016). The g uidelines also allo w special condition s requiring participation in a pro

gram “for substance abuse” if the “court has reason to believe that the defen

dant is an abuser of narcotics, other controlled substances, or alcohol.” I d. § 5D1.3(d)(4). Besides the se three require ments, the sentencing court must “state the Case: 17-41081 Document: 00514684252 Page: 3 Date Filed: 10/16/2018No. 17

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4 reasons for its imposition of the particular sentence.” United States v. Salazar , 743 F.3d 445, 451 (5th Cir. 2014) (internal quotation marks omitted) (citing 18 U.S.C. § 3553(c)). If the reasons are unclear, t he reviewing court may try to infer the m from the record. See i d

. III. A district court commits plain error by imposing a mental

- health

- treat

ment special condition o f SR where there is an “absence of any record evidence indicating that [the defendant] has a questionable mental health his tory or a particular diagnosis requiring mental health treatment.” United States v. Gor

don , 838 F.3d 597, 604 (5th Cir. 2016). Th at is because , absent evidence that the defendant “has ever been diagnosed with or trea ted for a men tal health

con dition,” Alvarez , 880 F.3d at 240 (5th Cir. 2018) (empha ses added), a mental

- health

- treatment special condition does not meet the three statutory requirements

. 2 The district court did not announce its reason s for imposing its well

intended mental

- health

- treatment special condition. We thus look to the rec

ord for evi dence support ing it

. See Salazar , 743 F.3d at 451. There is no evidence that Garrido has been diagnosed with or treated for

a mental health condition

. Al l of the information about his menta l condition comes from the PSR, which states that Garrido (1) self

- reported “ experienc[ing] mild depression while in custody” and (2) attended counseling as a child in school because of behavioral issues. He also report ed that he has experienced

some fainting spells and hair loss. E vidence of self

- reported depression,

2 See Alvarez , 880 F.3d at 240 (vacating a mental

- health

- treatment condition as plainly erroneous where the record showed that the defendant had suffered trauma and abuse but did not indicate diagnosis of or treatment for a mental health condition); Gordon , 838 F.3d at 604

– 05 (holding that evidence of a history of anger and violence untied to a spe

cific mental health condition could not support a mental

- health

- treatment special condition). Case: 17-41081 Document: 00514684252 Page: 4 Date Filed: 10/16/2018No. 17

- 41081

5 behavioral troubles as a school child, and physical symptoms that may or may not relate to Garrido’s mental health is not the kind of direct evidence that the caselaw require s to show a rea sonable relation to the factors in § 3553(a). Garrido has demonstrated that t h e error affects his substantial rights

. It “require[s] him to attend multiple sets of treatment” and creates “an unwar

r anted perception that he requires mental health treatment.” Gordon , 838 F.3d at 605. The government concedes both of these effects. Prong three of plain

- error review is satisfied. What remains is whether the error “ seriously affects the fairness, int eg rity or public reputation of judicial proceedings,” United States v. Olano , 507 U.S. 725, 732 (1993 ) (internal quotation marks omitted ), such that we should exercise our discretion to vacate the special condition. “[W]e do not view the fourth prong as automatic if the other three prongs are met.” United States v. Escalante

- Reyes , 689 F.3d 415, 425 (5th Cir. 2012) (en banc). Instead, “we look to the degree of the error and the particular facts of the case to determine whether to exercise our discretion .” United States v. Avalos

– Martinez , 700 F.3d 148, 154 (5th Cir. 2012) (per curiam) (internal quotation marks omitted). We have consistently vacated plainly erroneous men tal

- health special conditions where “ there was no indication from the PSR or discussion at the

sen tencing hearings that the district court was considering imposing a mental health special condition. ” Alvarez , 880 F.3d at 242; see also, e.g. , Gordon , 838 F.3d at 604

– 05. That is the situation here. It is also appropriate for us t o correct a judgment imposing a special condition that is insufficiently supported by the record. 3

3 See Gordon , 83 8 F.3d at 605; Garcia , 638 F. App’x at 346 (vacating where it was “not obvious from the record that there [was] a basis for the mental health condition”). Case: 17-41081 Document: 00514684252 Page: 5 Date Filed: 10/16/2018No. 17

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6 The g overnment urges us to uphold the special condition on the ground that “Garrido’s extremely recidivistic history demonstrates his gross disrespect for the law and the danger he poses to the public.” That approach is invalid in the wake of Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1910 n.5 (2018), which disallows criminal history as a factor in exercising discretion under the fourth prong. And aside from criminal history, the cir cum stances here are much like those in which we have vacated mental

- health special conditions. See Alvarez , 880 F.3d at 242; Gor don , 838 F.3d at 604

– 05; Garcia , 638 F. App’x at 347. Accordingly, we exercise our discretion to vacate the mental

- health
spe cial condition.
IV. T he district court , with the best of intentions, said it would rec ommend that the BOP place Garrido in a facility with services for drug or alco hol abuse, referencing that Garrido claimed “that he was using drugs when he was very young.” The cour t observed that the PSR “says that he was snorting cocaine when he was 12 years old.” Still, the court was uncertain as to present drug use, concluding by encour ag ing Garrido to “get[] rid of the drug habit, if there is one , while in custody.” Even so, based on these impressions , the cou r t found it “appropri ate” to rec ommend placement in a facility where Garrido could receive treat ment for drug or alc ohol abuse, bu t it did not specif ically state why it was imposing the special condition. The referenced statement about Garrido ’s snorting cocaine as a twelve

year - old is not in the record. The court may have mistak enly derived it from the clause that Garrido has been “scouting, transporting, and storing nar

cotics” since he was twelve . T here is no evidence that Gar rido has ever used drugs, much less abused them. In fact, he has “denied the use of or experi men tation with alcohol or any illicit substance,” and noth ing in the record suggest s Case: 17-41081 Document: 00514684252 Page: 6 Date Filed: 10/16/2018No. 17

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7 that he is lying. He has never been indic ted for an alcohol

- or drug

- related offense. The g over nment points to an incident in which Garrido was pulled over for broken headlamps , and a police officer smelled “a strong odor of mar i

juana” emanating from the vehicle. Garrido denied that he had used mar i

juana, saying that the passengers had smoked it earlier that evening. Th at incident resulted in a charge for possession of a pr ohibited weapon , not drug use or possession. This court has vacated a special condition requiring drug

- abuse treat

ment where there was no evidence suggesting that the defendant had abused drugs. See U nited States v. Mahanera , 611 F. App’x 201 (5th Cir. 2015) (per curiam)

. As in that case, “ there is no indication that [Garrido’s] crime was driven by the use of addictive substances, that he is likely to commit crimes due to the use of addic tive substances in the future, or that he needs help to avoid dr ugs or alcohol. ” Id. at 204. Given the lack of record evidence demon

strating past drug or alco hol abuse, the special condition does not “reasonably relate to” the factors in § 3553(a)(2)

. As with the mental

- health

- treatment special condition, this error preju diced Garrido in that he was “subjected to [an] unwarranted special condition, because no rec ord evi dence reveals any justification for the condition.” United States v. Prieto , 801 F.3d 547 , 553 (5th Cir. 2015) (per curiam). We turn once ag ain to the fourth prong of plain

- error review. “Sen tences based upon erroneous and material information or as sump tions violate due
pro cess.” United States v. Tobias , 662 F.2d 381, 388 (5th Cir. Unit B Nov. 1981) (citing Townsend v. Burke , 334 U.S. 7 36, 740 (1948)). T he district court relied on a mistaken reading of the record that Gar rido had snorted cocaine as a twelve

- year old. That misinformation was mate rial: T he court cited it as a part of imposing a special condition on SR . We exercise ou r discretion to vacate Case: 17-41081 Document: 00514684252 Page: 7 Date Filed: 10/16/2018No. 17

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8 the special condition.
T he judgment of sentence is MODIFIED by striking both special con ditions from the order of SR. In all other respects, the judgment is AFFIRMED. Case: 17-41081 Document: 00514684252 Page: 8 Date Filed: 10/16/2018