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United States v. Bree

United States Court of Appeals, Fifth Circuit

June 19, 2019

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.[*]


         Kelvin Lewis Bree contends that the district court erred in mandating, as a special condition of supervised release, that he participate in a mental-health 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.


         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 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.


         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 plain-error hurdle is "difficult, as it should be."[3] But Bree does so here.


         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 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 ...

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