United States v. Jeffery Perry ( 2018 )

Case: 17-30843 Document: 00514668718 Page: 1 Date Filed: 10/04/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30843
FILED
October 4, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEFFERY D. PERRY,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CR-57-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Jeffery D. Perry appeals for the second time. In the first appeal, we
affirmed his drug, firearm, and carjacking convictions and rejected his
sentencing challenges. But the government also appealed, and we agreed with
its argument that the district court failed to properly apply a mandatory
minimum to one of his firearm convictions. So we remanded for correction of
that error. See United States v. Chapman, 851 F.3d 363 (5th Cir. 2017).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-30843 Document: 00514668718 Page: 2 Date Filed: 10/04/2018
No. 17-30843
In this appeal, Perry contends for the first time that the district court
committed plain error by imposing a special condition of supervised release
requiring him to participate in a mental health treatment program despite a
lack of evidence of his need for such treatment.
The Government has filed a motion for summary affirmance. It argues
that Perry’s appeal of the mental health special condition is foreclosed by the
“mandate rule” because he did not raise the issue in his initial appeal. See
generally United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004); United States
v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). We agree. When a case is
remanded to the district court for resentencing, “only those discrete, particular
issues identified by the appeals court for remand are properly before the
resentencing court.” Id. at 530. Although “exceptional circumstances” may
overcome the mandate rule, Lee, 358 F.3d at 320, the situation here strongly
favor its application. As Perry was sentenced to life plus 360 months, it is
unlikely he will ever serve supervised release. And a challenge to the special
condition would face the demanding plain error standard of review given
Perry’s failure to object to it in the district court.
The Government’s motion for summary affirmance is GRANTED. IT IS
FURTHER ORDERED that the Government’s alternative motion for a
fourteen-day extension of time to file a brief on the merits is DENIED as moot.
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