Court’s Consideration of Rehabilitation Needs as a Secondary Factor Permissible under Tapia

United States v. Walker, No. 12-40748 (5th Cir. Feb. 7, 2014) (Davis, Barksdale, Elrod)

The panel affirms a 24-month imprisonment followed by a 24-month order of supervised release for Walker, who violated conditions of an earlier sentence of supervised release, in spite of Walker’s appeal claiming that the sentencing court improperly considered his rehabilitative needs in violation of 18 U.S.C. § 3582(a). See United States v. Garza, 706 F.3d 655 (5th Cir. 2013).

Since Walker did not object to the district court’s reliance on rehabilitation as a sentencing factor, the panel applies the “plain error” standard of review and affirms the sentencing court’s order. The panel upholds its previous interpretation of Tapia, where a consideration of the need for rehabilitation as a “secondary concern” or “additional justification” for a sentence is permissible, unless a defendant’s rehabilitative needs are a “dominant factor” informing the district court’s sentencing decision.

The panel distinguishes the instant case from Garza, where the district court focused “almost exclusively on rehabilitation in crafting” the defendant’s sentence of 24-months imprisonment so that the defendant could enter an appropriate treatment program. There the court stated that defendant should at least be afforded an opportunity to engage in a residential institution drug treatment program after discussing on the record various drug treatment programs available under different sentences. The court made no additional justifications for the sentence imposed.

In the instant case, while the district court took rehabilitation into account (“I think if you have a longer period of time in prison to think about [sic] and perhaps get some counseling...”), that concern was not a dominant factor. Instead, the court only referred to rehabilitation after detailing factors under 18 U.S.C. § 3553(a) that took into account Walker’s multiple violations of supervised release after being given a relatively lenient sentence.

Thanks to FPD intern Linda Corchado for this post.

Plain Error to Impose Sentence Based on Rehabilitative Needs

United States v. Garza, No. 11-10543 (Feb. 1, 2013) (DeMoss, Owen, Haynes)

United States v. Culbertson, No. 11-10917 (Mar. 22, 2013) (Stewart, Garza, Elrod)

In Tapia v. United States, the Supreme Court held that a district court "may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." A court can still discuss the opportunities for rehabilitation within prison, however, as long as the prison sentence is not based on rehabilitative needs.

In Garza, the Fifth Circuit panel held that Tapia applies to revocation sentences. Garza’s revocation sentence was erroneous because the district court considered Garza’s rehabilitative needs in imposing a prison sentence. The court sentenced Garza to 24 months in prison, even though his advisory guideline range was 3 to 9 months, noting that Garza should participate in the residential institutional drug treatment program. The panel vacated the sentence and remanded for sentencing since the error was plain at the time of appeal and it affected Garza’s substantial rights.

In Culbertson, the advisory guideline range of imprisonment was 5 to 11 months. The district court imposed a sentence of 30 months and 113 days for "punishment and deterrence from further criminal activity." Defense counsel objected to the "substantive and procedural reasonableness of the sentence." The district court overruled the objection and told Culbertson that the court is trying "to give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds." Defense counsel questioned the need to triple the guidelines, and the court responded, "I think you need that time to get yourself stabilized."

So, was the court imposing the sentence because of rehabilitation, or was the court merely discussing the opportunities for rehabilitation Culbertson could access while imprisoned?

The panel decided it was the former given the court’s explanation for the lengthy sentence, even though the court did not specifically mention a rehabilitative program. The panel found that defense counsel’s objection did not preserve the alleged error, so plain error review applied. Nonetheless, this error was plain at the time of appeal and affected his substantial rights.

SCOTUS GVR's Breland In Light of SG's Position That Tapia Applies Equally to Revocation of Supervised Release

You'll recall that the Supreme Court held in Tapia v. United States that a court may not impose or lengthen a term of imprisonment in order to promote a defendant's rehabilitation. You'll also recall that the Fifth Circuit held in United States v. Breland that Tapia's holding does not apply when imposing a sentence on revocation of supervised release. That set up a circuit split with the First and Ninth Circuits.

Turns out the Fives are going to get another crack at it. Earlier this week the Supreme Court granted certiorari in Breland, vacated the Fifth Circuit's judgment, and remanded the case "for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed on December 19, 2011." The SG's position?

Although Tapia concerned a term of imprisonment imposed on initial sentencing rather than on revocation of supervised release, the United States now agrees with petitioner that Section 3582 (a), as construed in Tapia, precludes a court from lengthening the time a defendant must serve in prison based on the defendant's rehabilitative needs when supervised release is revoked.

(I can't find a free copy of the SG's brief anywhere on the intertubes, but those of you with Westlaw access can find it at 2011 WL 7051682.)

SCOTUS: Court May Not Impose or Lengthen Prison Term to Promote Defendant's Rehabilitation

Tapia v. United States, No. 10-5400 (U.S. June 16, 2011)

When imposing sentence, 18 U.S.C. § 3553(a)(2) requires a court to consider certain factors, including rehabilitative factors: the need "to provide the defendant with needed educational or vocational training, medical care, or other appropriate correctional treatment in the most effective manner." But a separate statute, § 3582(a), further provides that, "[t]he court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promiting correction and rehabilitation." (emphasis added).

These superfically contradictory commands led to a circuit split over the question presented in Tapia: "[W]hether the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation."

An easy question, as it turns out. Writing for a unanimous Court, Justice Kagan answered that question "no." She began by observing that, "Our consideration of Tapia's claim starts with the text of 18 U.S.C. § 3582(a)—and given the clarity of that provision's language, could end there as well." The statute is plain: "[W]hat Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal."

Then there's the context: a separate provision in the Sentencing Reform Act, 28 U.S.C. § 994(k), "directs the Sentencing Commission to ensure that the Guidelines 'reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.'" The take-away? "Each actor at each stage in the sentencing process receives the same message: Do not think about prison as a way to rehabilitate the offender." Moreover, "when Congress wanted sentencing courts to take account of rehabilitative needs, it gave courts the authority to direct appropriate treatment for offenders[,]" as in the case of probation and supervised release. See 18 U.S.C. §§ 3562(a), 3583(e). "If Congress had similarly meant to allow courts to base prison terms on offenders' rehabilitative needs, it would have given courts the capacity to ensure that offenders participate in prison correctional programs. But in fact, courts do not have this authority." Only BOP can do that.

Finally, there's the legislative history. "[T]he key senate report concerning the SRA" reflects Congress' skepticism "that 'rehabilitation can be induced reliably in a prison setting.'"

Which brings us to the Court's holding: "[A] court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." (Justice Sotomayor, joined by Justice Alito, wrote separately "to note my skepticism that the District Judge violated this proscription in this case." She otherwise joined the majority's opinion in full.)

Where was the Fifth Circuit on the split, you ask? In United States v. Giddings, the Fives said that, "[t]he legislative history of the Comprehensive Crime Control Act of 1984 . . . indicates that that the prohibition against considering rehabilitative needs relates to the decision of whether to impose imprisonment, not to the length of the term of imprisonment." 37 F.3d 1091, 1096 (1994). Tapia, of course, abrogates that line of precedent.

Cert Grant: May a District Court Give a Defendant a Longer Sentence to Promote Rehabilitation?

Such is the question presented in Tapia v. United States, No. 10-5400, in which the Supreme Court granted cert last Friday.  You may be familiar with the scenario presented in Tapia: the district court imposed a 51-month, top-of-the-guidelines sentence in part to ensure that Tapia would remain in prison long enough to be able to participate in BOP's 500-hour drug treatment program.

According to the petition, the Eighth and Ninth Circuits "allow rehabilitation to be used as a factor in deciding the length of a defendant's prison sentence, once the court decides that a prison sentence is appropriate."  The Second, Third, Eleventh, and D.C. circuits have held otherwise.  To my knowledge, there is no published Fifth Circuit decision addressing this question.

The answer lies in the interplay between two provisions of the Sentencing Reform Act.  Section 3553(a)(2)(D) requires the sentencing court to consider the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]"  Section 3582(a) then instructs the court that, both when determining whether to impose a sentence of imprisonment and when determining the length of an imprisonment term, it "shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." (emphasis added).

Information about the case, including links to the pleadings, is available at SCOTUSblog.  And you should check out the cert petition itself.  It's very good: clear, concise, and (as we now know) effective.  Not a bad model to follow.