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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13793
Non-Argument Calendar
________________________
D.C. Docket No. 8:06-cr-00464-EAK-TGW-10
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHANCEY DEON COOPER,
a.k.a. Chauncy,
a.k.a. Black,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 6, 2021)
Before WILSON, ROSENBAUM and HULL, Circuit Judges.
PER CURIAM:
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Chancey Deon Cooper appeals his 60-month sentence imposed upon
revocation of his supervised release. Cooper argues that the district court
committed procedural error under Tapia v. United States,
564 U.S. 319,
131 S. Ct.
2382 (2011), by improperly considering rehabilitation in sentencing him. After
careful review, we affirm his revocation sentence.
I. BACKGROUND
A. Underlying Conviction and Sentence
In 2007, Cooper pled guilty to conspiracy to possess with intent to distribute
cocaine base (“crack cocaine”) and brandishing a firearm during the drug
conspiracy. Cooper’s advisory guidelines range was 210 to 262 months’
imprisonment on the drug conspiracy conviction. After granting a downward
departure, the court reduced Cooper’s guidelines range to 87 to 108 months’
imprisonment. The district court sentenced Cooper to 87 months on the drug
conspiracy conviction and a mandatory consecutive term of 84 months on the
firearm conviction, followed by concurrent supervised release terms of 60 months.
Subsequently, Cooper’s prison term for the drug conspiracy conviction was
reduced to 56 months’ imprisonment based on Sentencing Guidelines amendments.
This reduced his total sentence to 140 months.
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B. January 2018 Supervised Release Violations
On January 13, 2017, Cooper began serving his concurrent 60-month
supervised release terms. In January 2018, Cooper’s probation officer filed a
report stating that Cooper had tested positive for controlled substances and not
maintained employment. The probation officer recounted that Cooper admitted to
using drugs but took responsibility for his actions. The probation officer issued
Cooper a written reprimand, referred him to substance abuse treatment, and
requested that the court take no further action.
C. March and April 2018 Petitions for Revocation
In March 2018, the probation officer filed a petition to revoke Cooper’s
supervised release based on three alleged violations: (1) Cooper’s attempt to
deceive his probation officer by using a prosthetic penis and concealed bag of urine
when asked to provide a urine sample, which constituted new criminal conduct of
fraudulent practices under Florida Statute § 817.565; (2) Cooper’s continuing
failure, since November 2017, to maintain a lawful occupation without an
acceptable excuse; and (3) Cooper’s admitted use of marijuana. The district court
issued an arrest warrant.
On April 13, 2018, during a traffic stop, Cooper was arrested on the
outstanding warrant. During the stop, officers observed several items consistent
with narcotics sales in Cooper’s car, including small plastic baggies, “cut” straws,
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and a small digital scale. The officers also searched Cooper incident to his arrest
and recovered a 2.8-gram bag of crack cocaine in Cooper’s pants. After
transporting Cooper to the Sheriff’s office, officers noticed a tan powdery
substance and ripped bag on the patrol vehicle’s floorboard. A second ripped bag
of the tan substance was found in Cooper’s boxer shorts. The tan substance tested
positive for fentanyl, and the patrol vehicle had to be decontaminated.
Based on this new criminal conduct, the probation officer filed a superseding
petition for revocation of Cooper’s supervised release. To the above three
violations, the superseding petition added these four violations of new criminal
conduct: (4) possession of fentanyl with intent to sell; (5) possession of crack
cocaine with intent to sell; (6) tampering with evidence (the fentanyl); and
(7) possession of drug paraphernalia. Each additional violation had resulted in a
state criminal charge.
In an accompanying memorandum, the probation officer noted that Cooper’s
actions in spreading the fentanyl around the patrol vehicle’s back seat “potentially
placed the lives of the public and the Manatee County Sheriff’s Office personnel in
serious danger given the potential for overdose from incidental contact with
fentanyl.” Cooper’s statutory maximum revocation sentence was 5 years’
imprisonment, and his guidelines range was 30 to 37 months, based on his Class A
felony conviction and his criminal history category of III.
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Ultimately, the probation officer recommended that Cooper be sentenced to
the statutory maximum of five years’ imprisonment because: (1) Cooper was
“consistently deceptive with his probation officer”; (2) Cooper was “not amenable
to community-based supervision”; (3) Cooper’s new criminal violations were
serious; (4) his conduct in spreading fentanyl over the backseat of the police
vehicle “was extremely reckless”; and (5) the “Southern Manatee Fire & Rescue
District incurred a financial loss of $1,662.18 as a result of their response to the
[fentanyl] incident.”
D. Revocation Hearing and Sentencing
At an October 24, 2018 revocation hearing, Cooper pled guilty to four
violations (attempting to falsify the urine sample, failing to maintain employment,
using marijuana, and possessing crack cocaine with intent to sell). The
government withdrew the three remaining violations (possession of fentanyl with
intent to sell, tampering with evidence, and possession of drug paraphernalia), but
stated that it intended to use the conduct underlying those violations as aggravating
factors for imposing the statutory maximum revocation sentence.
Cooper requested a sentence within the advisory guidelines range of 30 to 37
months. The probation officer and the government requested a statutory maximum
sentence of 60 months. The district court revoked Cooper’s supervised release and
imposed a 60-month sentence.
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E. Appeal and Remand
In the prior appeal, Cooper argued, and the government conceded, that the
district court, by considering drug rehabilitation in varying upward, had committed
Tapia error that was not harmless. See United States v. Cooper, 779 F. App’x 588,
589 (11th Cir. 2019). This Court agreed because the district court had “sentenced
Cooper to the statutory maximum specifically because of his need for
rehabilitation.” Id. at 594. The Court vacated Cooper’s sentence and remanded for
resentencing. Id.
F. Resentencing on September 13, 2019
At the resentencing hearing, the district court noted that it had looked over
this Court’s remand opinion and would “abide by” it. Cooper’s counsel argued
that: (1) a sentence within the advisory guidelines range “would be more than
sufficient to accomplish any ends this Court might wish to do in terms of
rehabilitation”; (2) a 60-month sentence would be unreasonable given Cooper’s
“personal characteristics, his mental health issues, [and] his former substance
abuse issues”; (3) Cooper still faced state charges and would not “be able to do the
RDAP program or any of those programs the Court suggested [at the 2018
revocation hearing] because there’s a State hold on him”; 1 and (4) Cooper was able
to get into the Federal Prison Industries program, UNICOR, which is designed to
1
RDAP is the Bureau of Prison’s Residential Drug Abuse Program.
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develop work and job training activities. Cooper had worked well, as reflected in a
letter from his prison counselor.
The government asked again for a 60-month sentence as warranted by the
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U.S.C. § 3553(a) factors, adopted by § 3583 for determining revocation sentences.
The government stressed: (1) the dangerousness of the fentanyl-heroin mixture
Cooper spread in the patrol car and at police station; (2) the fact that Cooper’s 140-
month prison sentence had not deterred him from returning to drug crimes and
“graduat[ing] to the most serious drug that we have”; (3) if Cooper’s drug mixture
had been sold on the streets, it likely would have resulted in serious harm and
possibly death; and (4) the drug mixture had jeopardized the patrol officers’ safety
and required a HazMat team to clean it up safely. The government contended that,
under these circumstances, a 60-month sentence was needed to protect the public,
promote respect for the law, afford adequate deterrence, and provide just
punishment.
Allocuting, Cooper stated that, after participating in the UNICOR program,
he was no longer the person who committed the supervised release violations.
Cooper asked for a sentence that would let him return to his family and care for his
father. Cooper’s father also spoke, stating he was disabled, required dialysis, and
needed his son to take him to his dialysis and doctor’s appointments.
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The district court then commended Cooper for taking advantage of prison
programs and acknowledged the letter from Cooper’s prison counselor reporting
Cooper’s success in UNICOR. The district court stated, “And the time that you
have available to you yet to serve, based upon what the Court is going to do,
should encourage you to continue to keep doing what you’ve been doing along
those same lines.” The district court determined that a 60-month sentence was
appropriate based on the circumstances and § 3553(a) factors referenced by the
government, stating:
On reflection of the opinion from the Eleventh Circuit, and the
opportunity for this Court to reconsider what it’s done, I have to agree
with [the prosecutor] and incorporate by reference his argument in
reference to the appropriate sections of 18 U.S.C. I think that the 60-
month sentence is appropriate and for all the reasons that I incorporate
by reference from [the prosecutor’s] argument. That’s the sentence I
impose, credit for time served.
Cooper’s counsel objected that the sentence was substantively and procedurally
unreasonable “in that it’s an above-the-guideline sentence.” Counsel said nothing
about Tapia and made no claim that the district court this time had improperly
considered drug or vocational rehabilitation. Counsel was the same counsel who
had handled Cooper’s first revocation sentencing and made a Tapia objection
before.
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II. DISCUSSION
In Tapia, the Supreme Court held that a sentencing court “may not impose or
lengthen a prison sentence to enable an offender to complete a treatment program
or otherwise to promote rehabilitation.”
564 U.S. at 335,
131 S. Ct. at 2393; see
also
18 U.S.C. § 3582(a) (instructing sentencing courts to “recogniz[e] that
imprisonment is not an appropriate means of promoting correction and
rehabilitation”). A sentencing court does not commit Tapia error, however, merely
by “discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs” at sentencing.
Id. at 334,
131 S. Ct. at
2392; see also United States v. Vandergrift,
754 F.3d 1303, 1311 (11th Cir. 2014)
(“We recognize, though, that Tapia does not prohibit a district court from
discussing rehabilitation during a sentencing hearing.”).
This Court has applied Tapia “in the context of resentencing upon the
revocation of supervised release.” Vandergrift, 754 F.3d at 1309. In Vandergrift,
this Court held that “Tapia error occurs where the district court considers
rehabilitation when crafting a sentence of imprisonment,” even when the court
does not make rehabilitation a “dominant factor” in reaching the sentencing
determination or tailor the length of the sentence to permit completion of a
rehabilitation program. Id. at 1310. Thus, if a district court considers
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rehabilitation in determining the revocation sentence, it commits procedural error.
Id.
First, we do not agree with the government that Cooper invited any alleged
Tapia error. 2 At resentencing, Cooper argued in mitigation that during his 18
months in custody he had successfully participated in UNICOR but was unable to
participate in RDAP. However, Cooper did not ask the district court to lengthen
his sentence so that he could participate, or continue to participate, in these prison
programs. Indeed, Cooper advised the court that he would be unable to participate
in RDAP due to the state’s hold in connection with his state charges. Under these
circumstances, Cooper did not invite a Tapia error. However, we do conclude that
Cooper has not carried his burden to show a Tapia error in fact occurred.
To be sure, the district court, at Cooper’s prompting, discussed with him his
participation in UNICOR and his inability to participate in RDAP. But Cooper has
not established that the district court did more than that. Rather, the sentencing
transcript, as a whole, does not demonstrate that the district court crafted Cooper’s
60-month sentence to enable rehabilitation.
2
Because Cooper’s counsel objected only generally to procedural reasonableness and
never mentioned Tapia or improper consideration of rehabilitation, the government argues we
should review only for plain error. We need not decide that issue because there is no error in any
event.
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Cooper points to the district court’s statement, made after commending him
on his success in the UNICOR program, that the time Cooper had yet to serve
“should encourage [him] to continue to keep doing what [he had] been doing along
those lines.” This statement is ambiguous at best. Even when viewed in isolation,
it could be read as an attempt by the court to offer Cooper advice and
encouragement. See id. at 1311 (explaining that a sentencing court does not err in
discussing with a defendant the opportunities and benefits of prison rehabilitation
programs).
But this statement cannot be read in isolation. Indeed, it was immediately
followed by the district court’s statement that, upon reflecting on this Court’s
opinion vacating the prior sentence for Tapia error, the court agreed with and
incorporated the government’s articulated reasons for a 60-month sentence. The
government’s reasons did not include Cooper’s need to participate in prison
rehabilitation programs, but rather were focused on the seriousness of Cooper’s
fentanyl-heroin drug mixture and violative conduct, including the danger it posed
to both the public and to law enforcement, and the fact that Cooper’s 140-month
prison term had not deterred him from returning to criminal conduct once on
supervised release. Thus, it is not readily apparent from the record that the district
court considered Cooper’s rehabilitative needs in determining that a 60-month
sentence was appropriate.
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Because Cooper has not met his burden to show Tapia error, we affirm his
60-month revocation sentence.3
AFFIRMED.
3
Cooper’s appeal brief states in passing that, in light of the alleged Tapia error, his
sentence also is substantively unreasonable, but provides no separate argument or analysis as to
whether his sentence is substantively unreasonable. Accordingly, this issue is deemed
abandoned, and we do not address it. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678,
682-83 (11th Cir. 2014).
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