IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40360

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

KELVIN LEWIS BREE, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District

Judge.*

DON R. WILLETT, Circuit Judge:

Kelvin Lewis Bree contends that the district court erred in mandating, 

as a special condition of supervised release, that he participate in a mentalhealth treatment program “because of [his] substance problems.” We agree 

that the mental-health special condition is unsupported by the record and 

constitutes reversible plain error. We MODIFY the sentence by striking the 

mental-health condition and AFFIRM the sentence as modified.

 

* District Judge of the Northern District of Mississippi, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

June 19, 2019

Lyle W. Cayce

Clerk

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I

In October 2017, a Border Patrol agent stopped then-57-year-old Bree at 

the Sarita checkpoint on the U.S.–Mexico border. The agent’s canine 

companion sniffed out several bundles of marijuana and cocaine hidden 

beneath a seat in Bree’s truck. Bree was promptly charged with two counts of 

drug possession with intent to distribute. As part of a plea agreement, Bree 

pleaded guilty to the first count, and the second count was waived by 

government motion.

Bree’s presentence report (PSR) covered his rather extensive criminal 

history. Under “Mental and Emotional Health,” the PSR noted:

In addition to mental and emotional health problems pertaining to 

drug and/or alcohol abuse noted in the next paragraph, the 

defendant reported a suicide attempt. The defendant stated that 

at approximately age 18 or 19, he was in an unhealthy relationship 

with the mother of his oldest child and recalled taking more than 

the prescribed amount of an unknown medication. When asked if 

he was trying to cause himself harm at the time, the defendant 

stated that he probably was. Bree went on to say that he was 

“young and being stupid.”

The PSR also reported that Bree began consuming alcohol and experimenting 

with drugs at age 14. He stopped using marijuana around 1981 and stopped

drinking alcohol in 1992. He also used cocaine daily from 1988 until 1998 but 

quit after participating in a substance abuse program while incarcerated. In a 

sealed appendix, the PSR recommended “mental health treatment” and 

“substance abuse treatment.”

The district court sentenced Bree to 70 months imprisonment and 4 

years supervised release. As part of his supervised release, the court imposed 

special conditions requiring “mental health treatment because of [Bree’s]

substance problems, and substance abuse treatment as to in-abstinence.” Both 

special conditions required Bree to participate in and pay for a treatment 

program, under the supervision of a probation officer. The mental-health 

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condition further required Bree to purchase and take any medications 

prescribed by a physician while being treated. Bree timely appealed, 

challenging only the mental-health condition.

II

Because Bree failed to object to his sentence in the trial court, we review 

for plain error.1 To prevail, Bree must demonstrate that (1) the district court 

erred, (2) the error was plain, (3) the plain error affected his substantial rights, 

and (4) allowing the plain error to stand would “seriously affect the fairness, 

integrity, or public reputation of judicial proceedings.”2 Clearing the plainerror hurdle is “difficult, as it should be.”3 But Bree does so here. 

A

Sentencing courts possess “broad discretion to impose special conditions 

of supervised release.”4 This discretion, though, is limited by two laws. 

First, under 18 U.S.C. § 3583(d), special conditions must be “reasonably 

related” to one of the following four factors, found 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 need for the sentence 

imposed to afford adequate deterrence to criminal conduct; (3) the 

need for the sentence imposed to protect the public from further 

crimes of the defendant; and (4) the need for the sentence imposed 

to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most 

effective manner.

Second, a special condition must “involve[] no greater deprivation of 

liberty than is reasonably necessary” to advance the last three § 3553(a) factors 

and must be “consistent with any pertinent policy statements issued by the

 

1 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (per curiam).

2 Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up).

3 Id. 4 Alvarez, 880 F.3d at 239.

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Sentencing Commission.”5 The Commission has recognized that imposing a 

special condition requiring mental-health treatment is appropriate when “the 

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

psychiatric treatment.”6

We begin with the district court’s stated reasons. Section 3553(a) 

requires a sentencing court to “state in open court the reasons for its imposition 

of the particular sentence.”7 Four years ago in United States v. Caravayo, we 

clarified that these reasons must be in the form of a “factual finding or 

otherwise evident from the record.”8 And they must show that the special 

condition is “tailored to the individual defendant.”9 If not, then we usually 

recognize plain error and vacate the contested condition.10 And if the court

doesn’t provide reasons. or if its reasons are unclear, we may independently

review the record for evidence that could justify a special condition.11

The district court pointed to Bree’s “substance problems” to justify the 

mental-health treatment condition.” We start by evaluating this reason under 

§ 3553(c).

By itself, a history of substance abuse doesn’t justify imposing a mentalhealth condition under § 3553(a). As we explained recently in United States v. 

Gordon, a mental-health special condition should not be imposed absent 

“record evidence indicating that [the defendant] has a questionable mental 

health history or a particular diagnosis requiring mental health treatment.”12

Basing such a condition on “substance problems” would not be “tailored,” but 

 

5 18 U.S.C. § 3583(d)(2), (d)(3).

6 U.S.S.G. § 5D1.3(d)(5).

7 18 U.S.C. § 3553(c).

8 809 F.3d 269, 276 (5th Cir. 2015).

9 Id. 10 Id.; see also Alvarez, 880 F.3d at 240.

11 See United States v. Salazar, 743 F.3d 445, 451-53 (5th Cir. 2014).

12 838 F.3d 597, 604 (5th Cir. 2016); see also Alvarez, 880 F.3d at 240–41.

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ill-fitting.13 The district court’s stated reason doesn’t show why the mentalhealth condition was “reasonably necessary” to deter crime, protect the public, 

or provide needed treatment.14 The trial court already imposed a special 

condition of substance-abuse counseling for Bree’s “in-abstinence.” This is a

better way to address Bree’s “substance problems.” 

Because the district court’s stated reasoning was scant, we 

independently review the record for sufficient evidence to support a mentalhealth special condition. After all, the mere possibility that the court could 

have imposed a less restrictive alternative based on its stated reasoning “is not 

necessarily fatal” to a special condition.15 Rather, the condition should appear 

reasonably necessary based on record evidence.16

But this record cannot redeem the district court’s decision. The PSR 

never stated that Bree had previously been diagnosed with a mental disorder.17

And a suicide attempt 40 years before Bree’s offense doesn’t satisfy Gordon’s 

history-of-mental-problems standard.18

The Government suggests that when Bree lost his job he may have fallen 

into depression; if so, he’d need mental-health treatment. This doesn’t sway us. 

Our precedent requires specific record facts demonstrating mental instability

before a mental-health special condition may be imposed.19 Unadorned 

speculation isn’t enough.

 

13 Caravayo, 809 F.3d at 276.

14 18 U.S.C. § 3583(d)(2).

15 Caravayo, 809 F.3d at 276.

16 Id. 17 See Gordon, 838 F.3d at 604.

18 Id. Even the unpublished outer limits of our jurisprudence require some discernible 

trend of mental imbalance to warrant imposing a mental-health condition. United States v. 

Rocha, 732 F. App’x 291, 296 (5th Cir. 2018) (holding record testimony of defendant’s 

mentally suspect activity sufficient for a mental-health condition).

19 Gordon, 838 F.3d at 604.

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The Government also tries to establish a parallel between the probation 

officer’s PSR notes about Bree’s criminal history and the plaintiff’s alleged 

mental lapses in our unpublished 2018 case, United States v. Rocha.20 Yet the

PSR does not base its mental-health-treatment recommendation on Bree’s past 

crimes. In any event, the probation officer’s recommendation is not a specific 

record fact, but a conclusion drawn from the facts. And the officer’s conclusion 

doesn’t jibe with Gordon’s clear requirement of an evinced pattern of “a 

questionable mental health history or a particular diagnosis requiring mental 

health treatment.”21

Absent additional evidence that Bree’s mental state is weakened, the 

mental-health condition is overly burdensome and runs afoul of § 3583(d)(2)’s 

prohibition against unduly restrictive special conditions. The district court 

plainly erred.

B

We next consider whether the district court’s plain error affected Bree’s 

substantial rights. The challenged condition required Bree to “pay the cost” for 

any mental-health treatment. Bree’s participation in a court-ordered mentalhealth program also “may require a significant commitment of time” and 

“creates a possibly unwarranted perception that [he] requires mental health 

treatment.”22 The district court’s error encroached unreasonably on Bree’s time 

and financial resources, and possibly harmed his reputation.

The Government argues that Bree probably wouldn’t end up paying for 

mental-health treatment anyway since he’s a man of meager means. We do not 

share the Government’s nonchalance. Whatever money Bree has, it is his. Nor 

 

20 732 F. App’x at 292.

21 838 F.3d at 604.

22 Alvarez, 880 F.3d at 241.

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does the Government adequately rebut the violation of Bree’s other substantial 

rights.

C

Even if a sentencing court’s plain error affects a defendant’s substantial 

rights, we will only exercise our discretion to correct the error if it seriously 

harms “the fairness, integrity, or public reputation of judicial proceedings.”23

Initially, this seems like a close call. After all, we didn’t vacate the mentalhealth conditions in United States v. Mendoza-Valasquez, explaining that the 

defendant has “an extensive criminal history,” and the district court can 

modify the condition later.24

But Mendoza-Velszquez is distinguishable from Bree’s situation. First, 

Mendoza-Velasquez was decided under the now-overruled “shocks the 

conscience” standard that we previously (and incorrectly) used as shorthand 

for the fourth plain-error prong.25 Second, the Supreme Court recently ruled in 

Rosales-Mirales that criminal history simply isn’t relevant to that prong.26

Third, we held in Alvarez that “the ability . . . to modify a special condition is 

only one factor considered as we determine whether to exercise our 

discretion.”27 In other cases where the district court has imposed a plainly 

erroneous mental-health condition, we exercised our discretion to strike the 

contested condition simply because it touched on “significant autonomy and 

privacy concerns.”28 Those concerns are front and center in Bree’s case.

 

23 Puckett, 556 U.S. at 135.

24 847 F.3d 209, 213 (5th Cir. 2017).

25 See id.; see also Rosales-Mirales v. United States, 138 S. Ct. 1897, 1906–07 (2018). 

26 Rosales-Mirales, 138 S. Ct. at 1910 n.5. 27 Alvarez, 880 F.3d at 242.

28 See id.; see also Gordon, 838 F.3d at 605.

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III

The district court committed plain error. But because Bree’s challenge is 

limited to a single special condition of his sentence, we decline to remand for 

resentencing. In similar situations, we have instead modified the district 

court’s sentence and affirmed the sentence as modified.29 We do the same here. 

The judgment of sentence is MODIFIED by striking the mental-health

special condition. In all other respects, the judgment is AFFIRMED.

 

29 E.g., United States v. De Jesus-Batres, 410 F.3d 154, 166 (5th Cir. 2005); United 

States v. Fields, 247 F.3d 240, 240 (5th Cir. 2001) (per curiam).

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