United States v. Fonville

Appellate Case: 20-7033     Document: 010110659358       Date Filed: 03/18/2022    Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                          March 18, 2022
                          _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
  UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

  v.                                                          No. 20-7033
                                                   (D.C. No. 6:19-CR-00029-RAW-1)
  MARQUISE LEDON FONVILLE,                                    (E.D. Okla.)

        Defendant - Appellant.
                       _________________________________

                              ORDER AND JUDGMENT *
                          _________________________________

 Before HARTZ, HOLMES, and EID, Circuit Judges. **
                   _________________________________

       A jury convicted Marquise Ledon Fonville of possessing a firearm as a

 convicted felon. As part of Fonville’s sentence, the district court imposed a special

 condition of supervised release requiring Fonville to participate in a mental health

 treatment program and “comply with all treatment directives, including the taking of

 prescription medications as directed by a mental health professional.” App’x Vol. I

 at 93. At sentencing, Fonville did not object to the condition. On appeal, Fonville



       *
          This order and judgment is not binding precedent, except under the doctrines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.
        **
           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.
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 argues that the district court plainly erred by imposing the condition to the extent that

 it will require him to take medication prescribed in the course of future treatment.

 Rejecting the government’s suggestion that the case is not ripe for review, we agree

 with Fonville. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the portion

 of the special condition requiring Fonville to take medication as part of complying

 with treatment directives and remand for further proceedings.

                                            I.

       The following account is based on trial testimony. In February 2019, a man

 with a firearm forced his way into an apartment in Eufaula, Oklahoma. Inside the

 apartment was a woman, her boyfriend, and their daughters, aged two and four. The

 man fired a shot and took the woman’s younger daughter at gunpoint. The boyfriend

 shot at the man repeatedly as he exited the apartment through a window with the

 daughter. Police officers found a man, later identified as Fonville, lying on the

 ground outside the apartment building with a gun and a screaming child who was

 identified as the woman’s younger daughter. The officers recovered the infant and

 Fonville’s firearm.

       In July 2019, a federal grand jury returned a superseding indictment charging

 Fonville with one count of possessing a firearm as a convicted felon. See 18 U.S.C.

 §§ 922(g)(1), 924(a)(2). At trial, the parties stipulated that the firearm recovered

 from Fonville had traveled in interstate commerce and that Fonville knew he had a

 previous felony conviction. The jury convicted Fonville in September 2019.

       According to the Presentence Investigation Report (PSR):

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        The defendant reported a history of mental health issues, and currently
        complains of nightmares and “emotional issues”. He is not currently
        prescribed any psychotropic medication. However, he reported that while
        he was incarcerated in the Federal Bureau of Prisons, he received weekly
        mental health treatment and was prescribed medication. However, the
        defendant could not relate any diagnoses, nor could he recall the names
        of his prescriptions.

 App’x Vol. II at 15. The district court overruled Fonville’s objections to the PSR and

 adopted it as the factual basis for sentencing. The court sentenced Fonville to 120

 months’ imprisonment, the statutory maximum. See 18 U.S.C. § 924(a)(2). As a

 special condition of supervised release, the court ordered that:

        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. The defendant
        shall remain in mental health treatment until released by the treatment
        staff and remain in the treatment program until successfully discharged.

 App’x Vol. I at 93 (emphasis added). The court gave no specific explanation for

 imposing the special condition’s medication requirement. At sentencing, Fonville

 did not object to it. Fonville timely appealed.

                                              II.

        Fonville argues that the special condition of supervised release requiring him to

 take medication is a significant constraint on his liberty that cannot withstand plain error

 review. He requests that we “strike the requirement that [he] take any prescribed

 medication from the special condition.” Aplt. Br. at 5. The government counters that

 Fonville’s challenge is not ripe for review and also fails on the merits because the PSR

 adequately supported the medication requirement. We reject the government’s


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 arguments and vacate the challenged part of the condition because our cases are

 directly on point and support Fonville’s position.

                                                a.

        “The ripeness doctrine involves both constitutional requirements and

 prudential concerns.” United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019)

 (citing Tex. Brine Co. v. Occidental Chem. Corp., 879 F.3d 1224, 1229 (10th Cir.

 2018)). Even when an appeal satisfies Article III’s case or controversy requirement, this

 court may still decline to review it under the prudential ripeness doctrine. Id. The

 purpose of this discretionary doctrine is to “prevent the premature adjudication of

 abstract claims.” Tex. Brine Co., 879 F.3d at 1229.

        Application of the prudential ripeness doctrine “turns on two factors: (1) ‘the

 fitness of the issue for judicial review,’ and (2) ‘the hardship to the parties from

 withholding review.’” Cabral, 926 F.3d at 693 (quoting United States v. Bennett, 823

 F.3d 1316, 1326 (10th Cir. 2016)). Whether a claim is fit for review depends on

 “whether determination of the merits turns upon strictly legal issues or requires facts that

 may not yet be sufficiently developed.” United States v. Ford, 882 F.3d 1279, 1283 (10th

 Cir. 2018). Regarding the hardship factor, we “consider whether the parties face ‘a direct

 and immediate dilemma’” if we withhold review. Bennett, 823 F.3d at 1327 (quoting

 Kan. Judicial Review v. Stout, 519 F.3d 1107, 1117 (10th Cir. 2008)). “[C]hallenges to

 conditions of supervised release are usually prudentially ripe for review even before the

 conditions are actually enforced.” Ford, 882 F.3d at 1284. However, “[w]hen a



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 condition of supervised release is, by its own terms, contingent on the decision of a

 different actor, that condition is not ripe for immediate review.” Id. at 1286.

        The government argues that Fonville’s claim is not ripe for review because it

 is, “by its own terms, contingent on the decision of a different actor.” Id. The

 challenged part of the condition, the argument goes, cannot have any effect unless

 and until a mental health professional decides to prescribe Fonville medication. It is

 true that the medication condition requires Fonville to “comply with all treatment

 directives, including the taking of prescription medications as directed by a mental

 health professional.” App’x Vol. I at 93. But Fonville challenges the procedural

 imposition of the condition’s medication requirement in the first instance, not its

 substance. That means the issue on appeal turns solely upon the facts at sentencing

 and how the district court used them. See Cabral, 926 F.3d at 696. The requirement

 that Fonville take medication was “either proper or not” as a procedural matter when

 it was imposed, without regard to how the condition may play out in Fonville’s

 supervised release. Id. As a result, the “determination of the merits turns upon

 strictly legal issues,” so the fitness factor supports review. Tex. Brine Co., 879 F.3d

 at 1229.

        Turning to the hardship factor, we have observed that defendants in Fonville’s

 position, if unable to challenge a condition of supervised release on direct appeal,

 risk both losing appointed counsel and reincarceration. As Fonville points out, his

 alternatives for seeking legal relief—assuming we do not consider his claim ripe

 today—are “either to ask the district court to modify the condition or to violate it.”

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 Reply Br. at 6. Both entail hardship. First, “a request to modify the condition—

 unlike this direct appeal—will require [Fonville to] proceed pro se or retain an

 attorney near the end of his incarceration . . . [and Fonville] could be subjected to the

 challenged condition ‘before his request to modify is considered by the district

 court.’” See Ford, 882 F.3d at 1284 (brackets omitted) (quoting United States v.

 Rhodes, 552 F.3d 624, 629 (7th Cir. 2009)). Second, “to challenge the condition by

 violating it would risk re-incarceration.” Id. While the government argues that

 Fonville suffers no immediate hardship because he will not begin supervised release

 for a decade, sentence length is but one factor we examine. See id. at 1285.

 “[O]veremphasis on this factor ‘would counsel against adjudication for most

 conditions of supervised release where the defendant has a lengthy sentence.’” Id.

 (quoting Bennett, 823 F.3d at 1327). The hardship factor thus supports review. Both

 factors fall in favor of review, so we conclude this appeal is ripe.

                                             b.

       We review whether the medication requirement of the special condition was

 properly imposed for plain error because Fonville did not object below. See United

 States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015) (citing United States

 v. Mike, 632 F.3d 686, 691 (10th Cir. 2011)). To prevail on plain error review,

 Fonville must show “(1) error, (2) that is plain, which (3) affects substantial rights,

 and which (4) seriously affects the fairness, integrity, or public reputation of judicial

 proceedings.” Id. (quoting Mike, 632 F.3d at 691–92). “Under plain error review,

 we may vacate special conditions of supervised release only if the record reveals no

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 basis for the conditions.” United States v. Barela, 797 F.3d 1186, 1192 (10th Cir.

 2015).

          Our cases “unambiguously require supporting findings when courts impose

 special conditions of supervised release.” United States v. Burns, 775 F.3d 1221,

 1223 (10th Cir. 2014). That general rule becomes even stricter where such

 conditions affect core rights. If “a court imposes a special condition that invades a

 fundamental right or liberty interest, the court must justify the condition with

 compelling circumstances.” Id.; see also United States v. Koch, 978 F.3d 719, 726

 (10th Cir. 2020) (district courts must “engage in an on-the-record analysis of the

 propriety of all special conditions of supervised release and a particularly meaningful

 and rigorous analysis when the special condition implicates a fundamental right or

 interest”). A defendant on supervised release, like any individual, has “a significant

 interest in avoiding the involuntary administration of psychotropic drugs.” Mike, 632

 F.3d at 699. Our stricter standard is thus activated by the special condition in this

 case.

          Fonville has established all four prongs of plain error with respect to the

 special condition’s medication requirement under controlling circuit precedent. In

 United States v. Malone, we reviewed for plain error a similar challenge to a special

 condition of supervised release requiring the defendant “to take prescribed

 medication as directed by mental health staff or a treating physician.” 937 F.3d

 1325, 1326 (10th Cir. 2019) (internal quotation marks omitted). The district court in

 Malone had adopted a presentence report which surveyed the defendant’s past

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 substance abuse, explained that he suffered from anxiety and depression, reported

 that he hesitated to take medication because of how it affected him, and noted that a

 teacher once recommended his mother place him on Ritalin. Id. at 1328. We

 determined those findings were “paltry details” that failed to meet the “heightened

 requirement of particularized findings and compelling circumstances” to support the

 challenged condition. Id. at 1328–29. We explained that under our precedents, a

 broad medication “condition, on its face, is an impermissible infringement into a

 defendant’s significant liberty interests without the justifying support of

 particularized findings.” Id. at 1328. As the district court was not “precise and

 discerning” in its approach, we held that imposing the condition was plain error. Id.

 at 1329. We vacated the condition without possibility of resentencing and declined

 to remand for the district court to make the necessary findings because, given the

 record, it was “highly questionable whether the district court could have found

 compelling circumstances.” Id. at 1328.

       In United States v. Beagle, 846 F. App’x 714 (10th Cir. 2021) (unpublished),

 we considered a challenge to several special conditions of supervised release. 1 Under

 a medication condition, the defendant was required to “remain medication

 compliant,” “take all medications that [we]re prescribed by his treating psychiatrist,”

 and “cooperate with random blood tests as requested by his treating psychiatrist

 and/or supervising probation officer to ensure that a therapeutic level of his


       1
         Unpublished cases are not binding precedent, but we consider them for their
 persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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 prescribed medications [was] maintained.” Id. at 723 (brackets omitted). While the

 district court found the condition “appropriate and reasonable,” we agreed with the

 government’s concession that “the court plainly erred in not providing sufficient

 explanation for” it. Id. at 722. Unlike in Malone, however, the record revealed a

 potentially adequate basis for the condition that the district court did not discuss. See

 id. at 724. The defendant “ha[d] mental-health issues that have required treatment,

 and . . . was taking five prescription medications for those issues, first through a

 county mental-health agency and then through his primary care physician.” Id. We

 vacated the medication condition as imposed and remanded for the district court to

 consider whether compelling circumstances justified it. Id.

       Applying our precedent, the court below plainly erred. Instead of making

 particularized findings and justifying the challenged special condition’s medication

 requirement with compelling circumstances, the district court merely adopted the

 PSR’s findings, which were inadequate to support the requirement. The PSR stated

 that Fonville (1) was “not currently prescribed any psychotropic medication”; (2) had

 “a history of mental health issues, and currently complains of nightmares and

 ‘emotional issues’”; (3) previously received “weekly mental health treatment and was

 prescribed medication” during prior federal incarceration; and (4) “could not relate

 any diagnoses, nor . . . recall the names of his prescriptions.” App’x Vol. II at 15.

 But those findings relate entirely to Fonville’s prior medication use and general

 mental health concerns. They are not “precise and discerning” enough to support an

 invasive mandated medication condition that will not even come into play until

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  Fonville’s supervised release begins. See Malone, 937 F.3d at 1329; see also Mike,

  632 F.3d at 699 (“[I]ndividuals have a significant interest in avoiding the involuntary

  administration of psychotropic drugs.”). We agree with Fonville that “the mere fact

  that a doctor once decided a particular medication would be helpful . . . doesn’t

  create a compelling need to force [him] to take any and all medication he is

  prescribed in the future.” Reply Br. at 7 (internal quotation marks omitted). The

  same is true of the fact that Fonville had received mental health treatment in the past.

  The government’s argument that these factors distinguish this case from Malone falls

  short.

           We conclude that the district court did not “justify the condition with

  compelling circumstances,” as is required. Burns, 775 F.3d at 1223. That was error.

  The error was plain, affected Fonville’s substantial rights, and seriously affected the

  fairness and integrity of his sentence. See Malone, 937 F.3d at 1328; see also id. at

  1329 (“When ‘stock’ special conditions are proposed and the defendant does not

  object, it is easy to overlook the constitutional implications at stake. But even when

  the defendant does not object, the district court must ensure that its conditions

  conform to the Constitution.”). We vacate the medication requirement of the special

  condition and remand for resentencing. See Beagle, 846 F. App’x at 724–25. The

  district court must “consider whether there are compelling circumstances that justify”

  the requirement and “provide particularized findings explaining its decision.” Id.




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                                        III.

        For the foregoing reasons, we REMAND for further proceedings consistent

  with this order and judgment.


                                          Entered for the Court


                                          Allison H. Eid
                                          Circuit Judge




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