IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40078

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

MARIA DEL ROSARIO ALVAREZ, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:

 Maria Del Rosario Alvarez appeals the district court’s sentence 

requiring her to obtain mental health treatment as a special condition of 

supervised release. Because the district court committed reversible error in 

imposing this special condition without the statutorily required factual 

findings, we VACATE the challenged condition and REMAND for proceedings 

consistent with this opinion.

I.

A border patrol agent stopped Maria Del Rosario Alvarez at a border 

patrol checkpoint. Alvarez’s sister, her sister’s infant, and Agustin HernandezSanchez were all passengers in the car. The agent asked if they were United 

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2018

Lyle W. Cayce

Clerk

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States citizens, and they all answered yes. The agent then asked for 

identification, and everyone except Hernandez-Sanchez handed the agent 

United States birth certificates. The agent then asked Alvarez to park in the 

secondary inspection area.

In the secondary inspection area, Hernandez-Sanchez admitted he was 

illegally present in the United States. Then, Alvarez and Hernandez-Sanchez 

were arrested. During a search of the car, agents found Alejandro MartinezCristobal hiding in the trunk of the car. Martinez-Cristobal was also illegally

present in the United States. Alvarez never told agents that there was a 

person in the trunk, and when agents eventually found Martinez-Cristobal, it 

was 94 degrees in the trunk.

Prior to the sentencing hearing, the United States Probation Office 

prepared a presentence report (PSR) detailing Alvarez’s personal background. 

It reported that Alvarez had no prior criminal history but that she had a 

history of alcohol use, recommending that the court “consider imposing an 

education and drug treatment and/or surveillance special condition.” Notably, 

however, the PSR stated that Alvarez “reported no history of mental or 

emotional health related problems and [its] investigation [had] revealed no 

information to indicate otherwise.” 

Alvarez pleaded guilty to transportation of an undocumented alien, in 

violation of 18 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 

1324(a)(1)(B)(ii). During the sentencing hearing, Alvarez’s counsel asked the 

district court to consider a departure for aberrant behavior and stated that 

Alvarez had “suffered extreme abuse and trauma in her very short life.” 

The district court sentenced Alvarez to 18 months of imprisonment to be 

followed by two years of supervised release. The district court then ordered 

“[s]tandard terms of supervision, along with drug and alcohol treatment, 

mental health, and that [Alvarez] enroll in a program—educational program 

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designed to receive a high school diploma or its equivalency.” During the 

sentencing hearing, Alvarez did not object to the imposition of a mental health 

treatment program as a special condition of supervised release. 

Regarding this special condition, the judgment stated:

The defendant is required to participate in a mental health 

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.

Alvarez timely filed a notice of appeal. 

II.

On appeal, Alvarez argues that the district court committed reversible 

error by imposing the mental health special condition. Alvarez concedes that 

because she failed to object to the special condition in the district court, our 

review is limited to plain error. To prevail, Alvarez must show: 

First, there must be an error or defect—some sort of “[d]eviation from a 

legal rule”—that has not been intentionally relinquished or abandoned, 

i.e., affirmatively waived, by the appellant. Second, the legal error must 

be clear or obvious, rather than subject to reasonable dispute. Third, the 

error must have affected the appellant’s substantial rights, which in the 

ordinary case means he must demonstrate that it “affected the outcome 

of the district court proceedings.” Fourth and finally, if the above three 

prongs are satisfied, the court of appeals has the discretion to remedy 

the error—discretion which ought to be exercised only if the error 

“seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.”

United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir. 2015) (quoting Puckett 

v. United States, 556 U.S. 129, 135 (2009)). 

III.

District courts have broad discretion to impose special conditions of 

supervised release. United States v. Fernandez, 776 F.3d 344, 346 (5th Cir. 

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2015). Pursuant to 18 U.S.C. § 3583(d), conditions of supervised release must 

be “reasonably related” to one of the four statutory factors 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 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.

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)). A special 

condition cannot involve a “greater deprivation of liberty than is reasonably 

necessary for the purposes” of the last three statutory factors and must be 

“consistent with any pertinent policy statements issued by the Sentencing 

Commission.” 18 U.S.C. § 3583(d)(2), (d)(3). According to the United States 

Sentencing Commission, mental health treatment is appropriate “[i]f the court 

has reason to believe that the defendant is in need of psychological or 

psychiatric treatment.” U.S.S.G. § 5D1.3(d)(5).

The sentencing court must “state in open court the reasons for its 

imposition of the particular sentence.” 18 U.S.C. § 3553(c). “[C]ourts of appeal 

have consistently required district courts to set forth factual findings to justify 

special probation conditions.” United States v. Salazar, 743 F.3d 445, 451 (5th 

Cir. 2014) (quoting United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)). 

Even without factual finding by the district court, we may still affirm a special 

condition if we can infer the district court’s reasoning after an examination of 

the record. United States v. Caravayo, 809 F.2d 269, 275 (5th Cir. 2015) 

(vacating and remanding for resentencing because the record did not contain 

support for the imposition of the special condition). However, if the district 

court’s reasoning is unclear after our review of the record, the special condition 

must be vacated as an abuse of discretion. Id.

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We conclude that Alvarez has met her burden to show reversible error. 

It is undisputed that the district court did not attempt to explain how the 

mental health special condition reasonably related to any of the statutory 

factors. See United States v. Garcia, 638 F. App’x 343, 346 (5th Cir. 2016)1

(vacating a special condition on plain error review because the district court’s 

“reiteration” of two statutory factors “did not adequately explain how the 

mental health condition reasonably related to the cited statutory factors”). The 

government urges us to infer the district court’s reasoning, but on this record, 

we cannot surmise how the mental health special condition is clearly related 

to the statutory factors. The PSR did not report mental or emotional health 

related problems. While the PSR recommended that the district court consider 

imposing education and drug treatment special conditions, which were also 

imposed, the PSR did not recommend a mental health special condition. 

There is no evidence in this record suggesting that Alvarez needs mental 

health treatment. By contrast, when a defendant was experiencing anxiety 

and had been prescribed medication for anxiety, we determined that it was not 

plain error when the district court imposed, without explanation, a mental 

health treatment as a special condition of supervised release. See United 

States v. Terrell, 677 F. App’x 938, 940 (5th Cir. 2017). Here, however, there 

is no evidence that Alvarez has ever been diagnosed with or treated for a 

mental health condition. Moreover, we see no evidence in the record to suggest 

that the district court “had reason to believe” that Alvarez suffered from a 

mental health condition. See United States v. Heredia-Holguin, 679 F. App’x 

306, 311–12 (5th Cir. 2017) (citing cases in which, under plain error review, we 

upheld special conditions that required defendants to abstain from alcohol 

 

1 Pursuant to Fifth Circuit Rule 47.5.4, unpublished opinions issued on or after 

January 1, 1996 generally are not precedent, although they may be cited as persuasive 

authority pursuant to Fed. R. App. P. 32.1(a).

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when the district court “had reason to believe that [the defendant] abuses 

controlled substances”). 

The government argues that the district court believed that Alvarez 

would benefit from mental health treatment based on the nature and 

circumstances of her personal history, as reported in her PSR. According to 

the government, the record supports this inference. The record does indicate 

that Alvarez has experienced trauma in her life, including the murder of the 

father of her first two children. The PSR also reports that Alvarez was the 

victim of abuse in a prior relationship. In particular, the government 

emphasizes Alvarez’s counsel’s statement that Alvarez “has suffered extreme 

abuse and trauma in her very short life.” 

Many defendants, unfortunately, suffer from abuse and trauma. “But 

special conditions must be tailored to the individual defendant. . . .” Caravayo, 

809 F.3d at 276. Here, “the record does not clearly contain any discussion, 

factual finding, or other support for [this] special condition.” Id. The evidence 

of abuse and trauma here is not enough for us to infer the district court’s 

rationale in imposing this mental health special condition. A contrary ruling 

here would suggest that a district court can impose a mental health program 

as a special condition—without explanation—on any defendant with a history 

of trauma and abuse. 

Because the district court made no specific factual finding to establish 

that this special condition was reasonably related to one of the four factors 

under § 3553(a), and because the record does not clearly substantiate such a 

relationship, we conclude that Alvarez has met her burden to show error. 

Moreover, the district court’s error here is plain, that is, not open to reasonable 

debate. District courts must “set forth factual findings to justify special 

probation conditions.” Id. at 275. Here, the district court failed to do so, and 

this error is not open to reasonable debate.

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We further conclude that the district court’s error affected Alvarez’s 

substantial rights. Alvarez is required to pay for the mental health program, 

if she can afford it, and such a program may require a significant commitment 

of time. Moreover, this special condition creates a possibly unwarranted 

perception that Alvarez requires mental health treatment. See United States 

v. Gordon, 838 F.3d 597, 605 (5th Cir. 2016) (vacating a mental health special 

condition under plain error review).

Determining that Alvarez has established the first three prongs of plain 

error review, we must consider whether we should exercise our discretion to 

remedy this error. The government contends that the imposition of this 

condition does not seriously affect the fairness, integrity, or public reputation 

of judicial proceedings and urges us not to exercise our discretion in Alvarez’s 

case. It is true that Alvarez may seek modification of this condition during her 

supervised release. 18 U.S.C. § 3583(e)(2). In United States v. MendozaVelasquez, we declined to exercise our fourth-prong discretion when the mental 

health condition was modifiable. United States v. Mendoza-Velasquez, 847 

F.3d 209, 213 (5th Cir. 2017). However, in that case, the defendant had “an 

extensive criminal history” that counseled us against “rectifying any 

error.” Id. Here, according to this record, Alvarez has no criminal history at 

all. 

Moreover, “the fourth prong is meant to be applied on a case-specific and 

fact-intensive basis.” Prieto, 801 F.3d at 554 (quoting United States v. John, 

597 F.3d 263, 286 (5th Cir. 2010)). As the Supreme Court has emphasized, a 

“per se approach to plain-error review is flawed.” Id. (quoting Puckett, 556 U.S. 

at 142). Therefore, the ability of a defendant to modify a special condition is 

only one factor considered as we determine whether to exercise our discretion. 

In this particular case, there was no indication from the PSR or discussion at 

the sentencing hearings that the district court was considering imposing a 

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mental health special condition. Also, as discussed, this type of special 

condition implicates significant autonomy and privacy concerns.

For the foregoing reasons, we VACATE the condition of Alvarez’s 

supervised release requiring her to participate in mental health treatment. We 

REMAND for the district court to reconsider whether to impose this special 

condition.

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REAVLEY, Circuit Judge, dissenting:

This experienced judge gave special time and attention to the 

conduct and history of the defendant and decided that mental health 

assistance would benefit her, and would meet some if not all of the statutory 

factors stated above. I would require no more because I read the record to 

support this.

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