IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41081

UNITED STATES OF AMERICA, 

 Plaintiff−Appellee,

versus

MARIO ALBERTO GARRIDO, 

 Defendant−Appellant.

Appeals from the United States District Court

for the Southern 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”). We modify the sentence and affirm it as modified. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2018

Lyle W. Cayce

Clerk

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I.

Police stopped Garrido for a traffic violation. When a drug-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 another fourteen packages with cocaine. Garrido pleaded 

guilty of possession with intent to distribute five or more kilograms of cocaine 

in violation 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 determined 

by the probation officer.” The second requires participation “in a program, 

inpatient or outpatient, for the treatment of drug and/or alcohol addiction, 

dependency or abuse . . . as instructed and deemed necessary by the probation 

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 States 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 RosalesMireles v. United States, 138 S. Ct. 1897, 1904 (2018). If he meets that burden, 

we have discretion to correct the error, but only if “allowing th[e] error to stand 

seriously affects the fairness, integrity, or public reputation 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.

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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 that 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 characteristics of the defendants”; (2) the need for the sentence adequately to deter 

crime; (3) the need to protect the public; or (4) providing the defendant “with 

needed” treatment “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 liberty than is reasonably necessary” to advance 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 guidelines permit special conditions requiring 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. MANUAL § 5D1.3(d)(5) (U.S. SENTENCING COMM’N 2016). 

The guidelines also allow special conditions requiring participation in a program “for substance abuse” if the “court has reason to believe that the defendant is an abuser of narcotics, other controlled substances, or alcohol.” Id.

§ 5D1.3(d)(4). 

Besides these three requirements, the sentencing court must “state the 

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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, the reviewing court may try 

to infer them from the record. See id.

III.

A district court commits plain error by imposing a mental-health-treatment special condition of SR where there is an “absence of any record evidence 

indicating that [the defendant] has a questionable mental health history or a 

particular diagnosis requiring mental health treatment.” United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016). That is because, absent evidence that 

the defendant “has ever been diagnosed with or treated for a mental health 

condition,” Alvarez, 880 F.3d at 240 (5th Cir. 2018) (emphases added), a 

mental-health-treatment special condition does not meet the three statutory 

requirements.2

The district court did not announce its reasons for imposing its wellintended mental-health-treatment special condition. We thus look to the record for evidence supporting 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. All of the information about his mental 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 reported that he has experienced 

some fainting spells and hair loss. Evidence 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 specific mental health condition could not support a mental-health-treatment special condition).

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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 requires to show a reasonable relation to the factors in § 3553(a). 

Garrido has demonstrated that the error affects his substantial rights. 

It “require[s] him to attend multiple sets of treatment” and creates “an unwarranted 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, integrity 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 mental-health special 

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

sentencing 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 to 

correct a judgment imposing a special condition that is insufficiently supported 

by the record.3 

 

3 See Gordon, 838 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”).

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The government 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 circumstances here are

much like those in which we have vacated mental-health special conditions. 

See Alvarez, 880 F.3d at 242; Gordon, 838 F.3d at 604–05; Garcia, 638 F. App’x 

at 347. Accordingly, we exercise our discretion to vacate the mental-health 

special condition. 

IV.

The district court, with the best of intentions, said it would recommend 

that the BOP place Garrido in a facility with services for drug or alcohol abuse, 

referencing that Garrido claimed “that he was using drugs when he was very 

young.” The court 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 encouraging Garrido to “get[] rid of the drug habit, if there 

is one, while in custody.” Even so, based on these impressions, the court found 

it “appropriate” to recommend placement in a facility where Garrido could 

receive treatment for drug or alcohol abuse, but it did not specifically state why 

it was imposing the special condition.

The referenced statement about Garrido’s snorting cocaine as a twelveyear-old is not in the record. The court may have mistakenly derived it from 

the clause that Garrido has been “scouting, transporting, and storing narcotics” since he was twelve. There is no evidence that Garrido has ever used 

drugs, much less abused them. In fact, he has “denied the use of or experimentation with alcohol or any illicit substance,” and nothing in the record suggests

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that he is lying. He has never been indicted for an alcohol- or drug-related 

offense. The government points to an incident in which Garrido was pulled 

over for broken headlamps, and a police officer smelled “a strong odor of marijuana” emanating from the vehicle. Garrido denied that he had used marijuana, saying that the passengers had smoked it earlier that evening. That

incident resulted in a charge for possession of a prohibited weapon, not drug 

use or possession. 

This court has vacated a special condition requiring drug-abuse treatment where there was no evidence suggesting that the defendant had abused 

drugs. See United 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 addictive substances in the future, or that he needs help to 

avoid drugs or alcohol.” Id. at 204. Given the lack of record evidence demonstrating past drug or alcohol 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 prejudiced Garrido in that he was “subjected to 

[an] unwarranted special condition, because no record evidence reveals any 

justification for the condition.” United States v. Prieto, 801 F.3d 547, 553 (5th 

Cir. 2015) (per curiam).

We turn once again to the fourth prong of plain-error review. “Sentences 

based upon erroneous and material information or assumptions violate due 

process.” United States v. Tobias, 662 F.2d 381, 388 (5th Cir. Unit B Nov. 1981) 

(citing Townsend v. Burke, 334 U.S. 736, 740 (1948)). The district court relied 

on a mistaken reading of the record that Garrido had snorted cocaine as a 

twelve-year old. That misinformation was material: The court cited it as a 

part of imposing a special condition on SR. We exercise our discretion to vacate 

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the special condition. 

The judgment of sentence is MODIFIED by striking both special conditions from the order of SR. In all other respects, the judgment is AFFIRMED.

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