United States v. Wesberry , 709 F. App'x 895 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-7000
v. (D.C. No. 6:14-CR-00019-RAW-1)
(E.D. Okla.)
ROY LYNN WESBERRY,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
When sentencing Defendant Roy Wesberry, the United States District Court for
the Eastern District of Oklahoma imposed the following special condition of supervised
release:
The defendant shall participate in a mental health treatment program
approved by the United States Probation Office. The defendant shall
comply with all treatment directives, including the taking of prescription
medications as directed by a mental health professional, and shall remain in
mental health treatment until released by the treatment staff and the United
States Probation Officer and remain in the treatment facility until
successfully discharged.
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
R. Vol. 1 at 995. Defendant appeals. He did not challenge the condition in district court,
but he now argues that the condition is unreasonable because it bears no relation to the
goals of the United States Sentencing Guidelines and is thus an unlawful restraint on his
liberty. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that
Defendant is not entitled to relief on plain-error review because imposition of the
condition was not clearly contrary to governing precedent.
In October 2014 a jury found Defendant guilty on one count of conspiracy to
commit bank fraud, see 18 U.S.C. § 1349, and four counts of bank fraud, see 18 U.S.C.
§ 1344. The convictions arose out of actions involving the First National Bank of Davis,
Oklahoma. Working with the bank’s president, Defendant took out a series of large loans
in the names of others to borrow beyond the lending limit for a single individual and to
deceive both the bank and regulators. On August 12, 2015, he was sentenced to 87
months’ imprisonment and three years of supervised release. On appeal we affirmed his
convictions on all counts but remanded for resentencing because of a Guidelines error.
See United States v. Wesberry, 656 F. App’x 895, 900 (10th Cir. 2016). On December
20, 2016, the district court resentenced Defendant to 60 months’ imprisonment and three
years of supervised release.
As part of Defendant’s original sentence, the district court imposed the special
condition requiring him to participate in a mental-health treatment program that could
include in-patient treatment. In imposing this condition, the district court relied on “the
information contained in the presentence report regarding mental health issues.” R., Vol.
I at 965. At resentencing, the district court did not revisit its original imposition of the
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special condition and adopted the factual findings of the revised presentence report
(PSR).
Both Defendant’s original and final PSRs describe Defendant’s medical condition:
He was diagnosed with depression and was prescribed Valium, Lamotrigine, and
Buproban for the condition; and he was prescribed Oxycodone and Tramadol (Defendant
does not dispute that both drugs are opioids) to treat residual pain from various injuries,
most notably a broken neck and facial burn he suffered while working. The final PSR—
but not the original—stated that it “anticipates recommending the Court impose special
conditions of supervised release to include . . . mental health aftercare” based on
“information provided in the [PSR] regarding the nature of the offense and mental health
issues.” Revised PSR ¶ 60, Dist. Ct. Doc. 141.
Defendant concedes that he failed to challenge the condition in district court, so
we review only for plain error. See United States v. Mike, 632 F.3d 686, 691 (10th Cir.
2011). As we have explained:
We will grant relief under the plain-error standard only if (1) the district
court committed an error, (2) the error is clear at the time of the appeal, (3)
the error affects substantial rights and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. An error
is clear when it is contrary to well-settled law. For us to characterize a
proposition of law as well-settled, we normally require precedent directly in
point from the Supreme Court or our circuit or a consensus in the other
circuits.
United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016) (citations omitted).
The considerations that govern what conditions of supervised release may be
imposed on a defendant are set forth in 18 U.S.C. § 3583(d), which incorporates by
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reference portions of 18 U.S.C. § 3553(a). As we have summarized the matter, the
conditions of release must:
(1) be reasonably related to the nature and circumstances of the offense, the
defendant’s history and characteristics, the deterrence of criminal conduct,
the protection of the public from further crimes of the defendant, or the
defendant’s educational, vocational, medical, or other correctional needs;
(2) involve no greater deprivation of liberty than is reasonably necessary to
achieve the purposes of deterring criminal activity, protecting the public,
and promoting the defendant’s rehabilitation; and (3) be consistent with any
pertinent policy statements issued by the Sentencing Commission.
United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). The Guidelines’ policy
statement recommends requiring participation in a mental-health program if a court has
reason to believe the defendant is in need of psychological or psychiatric treatment, see
USSG § 5D1.3(d)(5), but that reason “must be supported by particularized findings by
the district court.” Bear, 769 F.3d at 1230 (holding that commission of a sex crime is
“generally” enough to “require an initial mental health assessment and treatment
consistent with that assessment”).
Defendant argues that not only does an in-patient treatment requirement have no
reasonable relation to Defendant’s crime (bank fraud), it also has no reasonable relation
to a court’s objective of providing a defendant “[w]ith needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner.”
18 U.S.C. § 3553(a)(2)(D). In his view the district court failed to give a particularized
explanation for why medical care was “needed” since it relied solely on the PSR’s
conclusion, which itself provided no support for requiring in-patient treatment.
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We are not persuaded. The PSR noted Defendant’s diagnosed depression and his
various prescribed medications. This medical history is a far cry from the situations in
the two unpublished opinions relied on by Defendant to argue error. In United States v.
Hopson, 203 F. App’x 230, 232 (10th Cir. 2006), the defendant had “no history of
alcohol or drug abuse” and the “Probation Officer ha[d] uncovered no additional
information to suggest that the defendant is in need of treatment for substance abuse.”
And in United States v. Majors, 426 F. App’x 665, 668–69 (10th Cir. 2011), the
probation officer noted that the defendant “has never had a mental illness and never been
suicidal” and experienced only a brief period of “situational depression” eight years
earlier when he participated in marital counseling. In contrast, the district court’s
decision here was driven by the Probation Office’s particularized findings about
Defendant’s mental-health condition and use of prescription medications. Because there
is no “well-settled” law supporting Defendant’s challenge to the special condition, he is
not entitled to relief in this appeal. Smith, 815 F.3d at 675.
This is not to say that Defendant is wholly without remedies. We note that
18 U.S.C. § 3583(e)(2) permits the district court to “modify, reduce, or enlarge the
conditions of supervised release, at any time prior to the expiration or termination of the
term of supervised release, pursuant to the provisions of the Federal Rules of Criminal
Procedure.” The courts have generally permitted imposition of harsher conditions,
however, only when there have been “new or unforeseen circumstances,” United States v.
Smith, 445 F.3d 713, 717 (3d Cir. 2006), and that requirement may also apply when
making the conditions more lenient, see United States v. Roberts, 229 F. Appx. 172, 177
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(3d Cir. 2007). Nonetheless, on or before the time Defendant is released from prison and
the imposition of conditions of supervised release is imminent, there may be new
information regarding his mental health that could justify a modification of the present
condition. (Or the condition could be revised to make clear that the court is not
improperly delegating authority to the probation office. See Mike, 632 F.3d at 695–96.)
Such an as-applied request for modification is not foreclosed by our decision today. See
United States v. LeCompte, 800 F.3d 1209, 1213–16 (10th Cir. 2015) (permitting as-
applied challenge in context of revocation of supervised release).
We AFFIRM Defendant’s sentence.
Entered for the Court
Harris L Hartz
Circuit Judge
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