United States v. Toscano

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 12, 2023
• Docket: 22-40370
• Status: Unpublished

Opinion

Case: 22-40370 Document: 00516748645 Page: 1 Date Filed: 05/12/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED May 12, 2023 No. 22-40370 Lyle W. Cayce Summary Calendar Clerk ____________

United States of America,

Plaintiff—Appellee,

versus

Nancy Garcia Toscano,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:20-CR-1062-1 ______________________________

Before Wiener, Elrod, and Engelhardt, Circuit Judges. Per Curiam: * Plaintiff-Appellee Nancy Garcia Toscano appeals the sentence she received for possession of methamphetamine with intent to distribute. Toscano asserts that the district court erred by imposing a condition of supervised release requiring mental health treatment because the condition

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40370 Document: 00516748645 Page: 2 Date Filed: 05/12/2023

No. 22-40370

was not reasonably related to her history and characteristics. For the following reasons, we AFFIRM. We usually review the imposition of a special condition of supervised release for abuse of discretion. See United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016). However, because Garcia Toscano failed to object to this condition during the district court proceedings, plain error review applies. See United States v. Huerta, 994 F.3d 711, 715 (5th Cir. 2021); United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Garcia Toscano must show, inter alia, an error that is clear or obvious. See Puckett v. United States, 556 U.S. 129, 135 (2009). Although the record contains no evidence that Garcia Toscano was diagnosed with or treated for a mental health issue, there was other evidence to give the district court a reason to believe she suffered from a mental health condition, see United States v. Alvarez, 880 F.3d 236, 240 (5th Cir. 2018). Moreover, there was evidence that reflected “a questionable mental health history.” United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016). The cases Garcia Toscano cites are distinguishable on the facts. To the extent Garcia Toscano relies on the lack of a referral to treatment by the psychiatrist she saw while in custody, there are not enough facts in the record about her encounter with the psychiatrist to support a conclusion that her history did not reflect a need for treatment. For all these reasons, the imposition of a mental-health treatment condition was not clear or obvious error, if error at all. See Puckett, 556 U.S. at 135. The judgment of the district court is AFFIRMED.