FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                         UNITED STATES COURT OF APPEALS                 June 15, 2011
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 10-1141
 v.                                               (D.C. No. 1:07-CR-00471-JKL-01)
                                                        (District of Colorado)
 ERIC RICHFIELD MAJORS,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before HARTZ, HOLLOWAY and O’BRIEN, Circuit Judges.



       In this direct criminal appeal, Defendant-Appellant Eric Richfield Majors contests

two components of his sentence. Jurisdiction of this appeal is granted to this court by 28

U.S.C. § 1291, and our review is guided by 18 U.S.C. § 3742(e).

                                             I

       Mr. Majors and another were indicted on multiple counts of securities fraud, wire

fraud, and mail fraud. More than a year after his indictment, Mr. Majors pleaded guilty to



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
a single count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

Because this appeal presents only limited sentencing issues, we need not delve into the

underlying facts, which are quite complex. We note, for example, that a nearly forty-

pages-long section of the Plea Agreement is devoted to setting out the factual basis for the

guilty plea, facts to which both Mr. Majors and the prosecution stipulated.

       After entry of the guilty plea, the probation office prepared a Presentence

Investigation Report (PSR). Among other things, the PSR included calculation of the

sentencing range under the advisory United States Sentencing Guidelines, and it

recommended imprisonment for sixty months, the statutory maximum. The PSR also

recommended that Mr. Majors participate in mental health treatment during his period of

supervised release. After Mr. Majors had objected to that recommendation, it was

changed (in an Addendum to the PSR) to a recommendation that Mr. Majors undergo a

psychological evaluation as part of the period of supervised release following his

imprisonment.

       The PSR also addressed the matter of restitution to the Internal Revenue Service

(IRS) for income taxes due for previous years. Even though Mr. Majors had admitted in

his plea agreement that he would owe restitution to the IRS, the initial version of the PSR

recommended no restitution because the amount owed was disputed and because the IRS

is capable of enforcing tax liabilities on its own, without assistance from the Probation

Office. Although the prosecution had objected to that recommendation, the subsequently

issued Addendum also recommended that no restitution to the IRS be ordered as part of

                                             -2-
the sentence.

       At sentencing, the district judge resolved two disputed matters from the PSR, ones

which are not at issue in this appeal. As to all other disputes between the parties

regarding the PSR, the judge announced that he would not resolve those because those

issues would have no bearing on his decisions. After hearing from counsel for both sides

and from Mr. Majors, the judge pronounced sentence. In addition to the term of

imprisonment already noted, the sentence included two components that are challenged

before this court. First, the judge ordered Mr. Majors to participate in a program of

mental health treatment as part of his three-year term of supervised release.1 Second, the

judge ordered Mr. Majors to pay restitution to the IRS in the amount of $39,301.17.2

                                             II

       On appeal, Mr. Majors challenges the requirement that he undergo mental health

treatment during his period of supervised release, and the requirement that he pay

$39,301.17 in restitution to the IRS.



       1
        This part of the judgment states:

       The defendant shall participate in and successfully complete a program of
       mental health treatment, as approved by the probation officer, until such
       time as the defendant is released from the program by the probation officer.
       The defendant shall pay the cost of treatment as directed by the probation
       officer. The Court authorizes the probation officer to release to the
       treatment agency all psychological reports and/or the presentence report for
       continuity of treatment.
       2
       Mr. Majors was also ordered to pay restitution totaling approximately
$146,000.00 to identified victims. That part of the judgment is not at issue in this appeal.

                                             -3-
                                             A

       To decide the dispute about the mental health treatment requirement, we must first

identify our standard of review. This in turn depends on whether the issue presented by

Mr. Majors is characterized as one of procedural reasonableness or one of substantive

reasonableness. This follows from two facts. First, Mr. Majors did not object at

sentencing to the requirement (although as noted he had objected to the recommendation

for treatment in the original PSR), and so he forfeited any issue of procedural

unreasonableness. Second, when a sentence is challenged on the ground that it is

procedurally unreasonable, we review forfeited issues only for plain error, see United

States v. Romero, 

, 1176-77 (10th Cir. 2007). But when the substantive

reasonableness of a sentence is challenged “we do not require the defendant to object in

order to preserve the issue,” United States v. Torres-Duenas, 

, 1183 (10th

Cir. 2006), so long as the defendant made the argument in the district court before

sentence was pronounced, see United States v. Mancera-Perez, 

, 1059

(10th Cir. 2007), which Mr. Majors did in this case.

       Mr. Majors declares that his challenge is substantive. He contends that “there was

simply no evidence in the record to support the court’s order for mental health

treatment.”3 As Mr. Majors notes, we have held that “a challenge to the sufficiency of the

       3
       Opening Brief of Appellant Eric Majors at 12. In response to the government’s
argument that the alleged error is procedural, Mr. Majors offers this interesting
observation: “This dispute appears to be rooted in the fact that the entry of a condition of
supervised release without any evidentiary basis constitutes a procedural error that results
                                                                                  (continued...)

                                            -4-
[18 U.S.C.] § 3553(a) justifications relied on by the district court implicates the

substantive reasonableness of the resulting sentence.” United States v. Smart, 

, 804 (10th Cir. 2008). We agree that Mr. Majors’ challenge does go primarily to the

sufficiency of the justifications relied on by the district court and so implicates the

substantive reasonableness of the sentence. Accordingly, our review is for abuse of

discretion. See 

; United States v. Friedman, 

, 1307

(10th Cir. 2009).

       The government’s argument for plain error review is unpersuasive because the

government does not respond to Mr. Majors’ primary point: that under Smart a challenge

to the sufficiency of the evidence to support a sentence is a substantive challenge.

Instead, the government cites Mr. Majors’ secondary arguments. In addition to the

primary argument, Mr. Majors does assert that the district court failed to explain the

conditions it imposed and failed to comply with Fed. R. Crim. P. 32(i)(3)(B). These are

procedural issues, we recognize, but they are not the primary focus of Mr. Majors’ appeal.

       The district court is vested with the authority to include a requirement for mental

health treatment in sentencing when appropriate to meet the sentencing goals set out in 18

U.S.C. § 3553(a). See United States v. Barajas, 

, 1144-45 (10th Cir. 2003)

(noting authorization in 18 U.S.C. §§ 3563(b)(9) & 3583(d)). And the Guidelines

recommend that the sentencing court include participation in a mental health program

       3
        (...continued)
in a substantively improper sentence.” Corrected Reply Brief of Appellant Eric Majors at
2, n.1.

                                              -5-
“[i]f the court has reason to believe that the defendant is in need of psychological or

psychiatric treatment . . . .” U.S.S.G. § 5D1.3(d)(5). But it is an abuse of discretion to

order psychological or psychiatric treatment when there is no evidence that it is necessary

or would be helpful. See United States v. Kent, 

, 1077-78 (8th Cir. 2000).4

       Mr. Majors in effect contends that there was no reason for the court to believe that

he was in need of mental health treatment. In the “mental and emotional health” section

of the PSR, the probation officer relays Mr. Majors’ report that he has never had a mental

illness and never been suicidal. He reported having had “situational depression” during

the time he was participating in marital counseling, from 1998 to 2001. The probation

officer made contact by telephone with the counselor who had provided that service. Mr.

Majors objected to the PSR’s account of the interview with the counselor, contending that

the counselor’s statements were not trustworthy for several reasons, including that eight

years had lapsed since that counseling.

       The district judge opted not to resolve the dispute about the counselor’s

statements, saying that doing so would not affect his sentencing decisions. Accordingly,

we disregard that information in our review of the sufficiency of the court’s justifications

for requiring mental health treatment during the period of supervised release.

       Similarly, Mr. Majors objected to the PSR’s relay of information from one of his

ex-wives. The district judge did not resolve that objection, so we assume that the judge


       4
        Our court has expressed agreement with Kent in an unpublished opinion. United
States v. Hopson, 203 Fed. Appx. 230 (10th Cir. 2006).

                                             -6-
likewise disregarded this part of the PSR.5

       Mr. Majors contends that when the evidence not considered by the district judge is

excluded, there is nothing left to support the mental health treatment requirement. The

government offers little support for the district court’s ruling because its brief focuses on

the evidence that the judge specifically said that he would not consider, i.e., the

statements of the former marriage counselor and the former spouse. Other than that, the

government can cite only unsupported speculation that he might have suffered a head

injury in 1999 and Mr. Majors’ statements that he had experienced “situational

depression” during the dissolution of a marriage in the time frame of 1998 to 2001 and

during this prosecution (which coincided with his present wife suffering from a life-

threatening illness).

       We find no other evidence to support the ruling. The evidence that exists is clearly

insufficient, we hold. Indeed, Mr. Majors’ description is accurate: There is nothing in

this record to support the conclusion that reason exists to believe that Mr. Majors is in

need of psychological or psychiatric treatment. Therefore, we reverse the imposition of

this condition of supervised release and remand for re-sentencing.


       5
        The government points out that Mr Majors specifically objected to paragraph 74
of the original PSR, in which the ex-wife opined regarding the commission of the offense.
The government contends that the remarks pertinent to the ex-wife’s opinion of Mr.
Majors’ mental health, which appeared in paragraph 73 of the PSR, should be included in
our analysis.
       We think that Mr. Majors’ objection was intended to go to both paragraphs. The
objection was to “inclusion of comments” from the ex-wife. III R. Pt. 2 at 187-88. We
think the district judge likely understood this to pertain to all of her statements.

                                              -7-
                                             B

       The other condition of supervised release that is challenged in this appeal is the

requirement that Mr. Majors pay restitution to the IRS in the sum of $39,301.17. Again,

Mr. Majors’ primary argument is that the condition is not supported by any evidence that

was presented to the district court. Mr. Majors acknowledged in his plea agreement that

he owed income taxes for prior years and that the IRS would be entitled to restitution as a

part of his sentence. However, he contends that the prosecution failed to provide

evidence from which the district court could have determined the proper amount owed

and that the specific figure ordered by the district court was based solely on a statement

by the prosecuting attorney at the sentencing hearing.

       Once again, the parties dispute the standard of review, but we need not resolve this

dispute. The government, while arguing that review should be only for plain error,

concedes that plain error was committed in this instance because the record shows no

evidence whatsoever to support the amount of restitution ordered by the district court.

The government concedes that we must therefore remand.

       Thus, we must remand for re-sentencing.

                                             C

       The next question is the scope of our remand. Our basic rule is that when we

remand for re-sentencing, the district court is to conduct a de novo proceeding which

“permits the receipt of any relevant evidence the court could have heard at the first

sentencing hearing.” United States v. Ortiz, 

, 935 (10th Cir. 1994) (emphasis

                                             -8-
in original). Under specific circumstances, however, we have exercised our discretion to

limit the scope of the proceedings on remand, in particular in cases where the government

had been alerted to deficiencies in its evidence but had nonetheless failed to produce

sufficient evidence to carry its burden of proof on a sentencing factor. See United States

v. Campbell, 

, 1183 (10th Cir. 2004); United States v. Forsythe, 

, 963-64 (10th Cir. 2005).

       With respect to the element of the sentence requiring restitution to the IRS, Mr.

Majors asks us to follow these last cited cases rather than allow the government a “second

bite of the apple,” i.e., a second chance to produce evidence that it must have known

would be necessary to support the restitution order. The government asks us to permit it

to introduce evidence on remand on the ground that it was only for “unknown reasons”

that a report that was “apparently” prepared was not made a part of the record.

       We conclude that it is better left to the district court to exercise its discretion by

deciding whether to give the government another chance to produce evidence to support a

restitution award to the IRS. The record before us does not permit us to determine the

reasons that prevented the government from producing the evidence in a timely manner.

       Similarly, with respect to the condition of psychological treatment, our remand

leaves further proceedings to the discretion of the district court.

       The motion to withdraw by counsel for Mr. Majors is denied. Mr. Majors’ pro se

motion to file supplemental argument is denied. We are not obligated to consider pro se

submissions from parties represented by counsel.

                                              -9-
IT IS SO ORDERED.



                           Entered for the Court

                           William J. Holloway, Jr.
                           Circuit Judge




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