United States v. Jesus Garza ( 2013 )


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  •                         REVISED FEBRUARY 15, 2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 11-10543         February 1, 2013
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.
    JESUS JAVIER GARZA,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
    PRISCILLA R. OWEN, Circuit Judge:
    Jesus Javier Garza violated the conditions of his supervised release and
    was sentenced to twenty-four months of imprisonment to be followed by twenty-
    four months of supervised release. On appeal, Garza argues that the district
    court improperly considered his rehabilitative needs in determining the length
    of his prison sentence in violation of Tapia v. United States,1 which held that “a
    court may not impose or lengthen a prison sentence to enable an offender to
    1
    
    131 S. Ct. 2382
     (2011).
    No. 11-10543
    complete a treatment program or otherwise to promote rehabilitation.”2 We
    vacate and remand for resentencing.
    I
    Garza pleaded           guilty to   possession with   intent to   distribute
    methamphetamine and was sentenced to fifty-five months in prison to be
    followed by a five-year term of supervised release. Garza began serving that
    term of supervised release on August 1, 2008. When Garza allegedly violated a
    number of the conditions of his supervised release, the Government filed a
    motion to revoke supervised release pursuant to 
    18 U.S.C. § 3583
    (e).
    At his revocation hearing, Garza pleaded true to all of the factual
    allegations in the Government’s motion to revoke, with one exception, and the
    court revoked Garza’s supervised release. Although the advisory Sentencing
    Guidelines range was three to nine months of imprisonment, the district court
    imposed a sentence of twenty-four months in prison, to be followed by a twenty-
    four month term of supervised release. In the course of imposing this sentence,
    the district court extensively discussed the rehabilitation opportunities that
    prison terms of varying lengths would afford Garza. This appeal followed.
    II
    A threshold question in this appeal is whether 
    18 U.S.C. § 3582
    (a) applies
    to revocation sentences.          In Tapia, the Supreme Court held that, under
    § 3582(a), 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.”3 However, Tapia was an appeal of a sentence imposed for the
    initial conviction, and although our court has assumed that its holding extends
    2
    Tapia, 
    131 S. Ct. at 2393
    .
    3
    
    Id.
    2
    No. 11-10543
    to the revocation context,4 we have never so held. The Government concedes
    that Tapia applies to revocation sentences, and we agree. In so holding, we join
    the uniform post-Tapia case law in our sister circuits.5
    The factors set forth in 
    18 U.S.C. § 3553
    (a) that a district court should
    consider in imposing a sentence apply when supervised release is revoked.6
    These factors include “the need for the sentence imposed . . . to provide the
    defendant with needed educational or vocational training, medical care, or other
    correctional treatment in the most effective manner.”7 However, with regard to
    determining if imprisonment should be imposed as part of a sentence and if so,
    the length of the term of imprisonment, § 3582(a) directs a district court to
    “recogniz[e] that imprisonment is not an appropriate means of promoting
    correction and rehabilitation.”8
    The wording and context of § 3582(a) persuades us that it applies in the
    revocation context. First, in the same sentence in § 3582(a) that admonishes
    courts that they cannot use imprisonment as a means of correction or
    4
    E.g., United States v. Receskey, 
    699 F.3d 807
    , 810 (5th Cir. 2012).
    5
    United States v. Bennett, 
    698 F.3d 194
     (4th Cir. 2012); United States v. Mendiola, 
    696 F.3d 1033
     (10th Cir. 2012); United States v. Taylor, 
    679 F.3d 1005
     (8th Cir. 2012); United
    States v. Grant, 
    664 F.3d 276
     (9th Cir. 2011); United States v. Molignaro, 
    649 F.3d 1
     (1st Cir.
    2011) (Souter, J. (Ret.), sitting by designation); see also United States v. Jackson, 477 F. App’x
    377 (6th Cir. 2012) (applying Tapia to a revocation sentence without discussion of its
    applicability); United States v. Williams, 467 F. App’x 59 (2d Cir. 2012) (assuming without
    deciding that Tapia applies to revocation sentences). The only outlier was our own decision
    in United States v. Breland, 
    647 F.3d 284
     (5th Cir. 2011), which the Supreme Court vacated,
    
    132 S. Ct. 1096
     (2012) (mem.), and in which case we ultimately remanded for resentencing,
    463 F. App’x 376, 376-77 (5th Cir. 2012). Although we need not today revisit our prior decision
    in United States v. Giddings, 
    37 F.3d 1091
     (5th Cir. 1994), which held that § 3582(a) does not
    apply to mandatory revocation while expressly reserving the question of whether the statute
    applied to discretionary revocation, we note that Tapia casts substantial doubt on the
    continuing vitality of Giddings’s holding.
    6
    See 
    18 U.S.C. § 3553
    (a)(4)(B).
    7
    
    Id.
     § 3553(a)(2)(D).
    8
    Id. § 3582(a).
    3
    No. 11-10543
    rehabilitation, Congress directs courts to consider the factors set forth in
    § 3553(a) “to the extent they are applicable.”9 As already noted, a sentence
    imposed for a violation of supervised release comes within § 3553(a), and a court
    is directed by § 3553(a)(3) and (a)(4)(B) to consider the kinds of sentences
    available and the applicable sentencing range established by the Guidelines or
    the Commission’s policy statements.10                 This would include a term of
    imprisonment, if available. It therefore stands to reason that the subsequent
    part of the phrasing in § 3582(a) that prohibits consideration of rehabilitative
    needs applies to a prison term imposed upon revocation of supervised release.
    Second, § 3582(a) is quite clear: “imprisonment is not an appropriate
    means of promoting correction and rehabilitation.”11 The phrasing of this statute
    does not suggest that it applies only when a sentence is imposed for the
    underlying conviction but that in the revocation context, promoting
    rehabilitation can be considered in deciding whether to impose a prison sentence
    and if so, the length of confinement.12              While it is true that the statute
    9
    Section 3582(a), titled “Factors to be considered in imposing a term of imprisonment,”
    states as follows:
    The 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
    promoting correction and rehabilitation. In determining whether to make a
    recommendation concerning the type of prison facility appropriate for the
    defendant, the court shall consider any pertinent policy statements issued by the
    Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).
    Id.
    10
    Id. § 3553(a)(3), (a)(4)(B).
    11
    Id. § 3582(a) (emphasis added).
    12
    United States v. Bennett, 
    698 F.3d 194
    , 197 (4th Cir. 2012); United States v. Grant,
    
    664 F.3d 276
    , 281 (9th Cir. 2011); United States v. Molignaro, 
    649 F.3d 1
    , 2 (1st Cir. 2011)
    (Souter, J. (Ret.), sitting by designation); see also United States v. Mendiola, 
    696 F.3d 1033
    ,
    1043 (10th Cir. 2012) (Gorsuch, J., concurring) (“From [Tapia], it follows ineluctably (plainly)
    that § 3582(a) prohibits a court from relying on rehabilitation considerations any time it
    4
    No. 11-10543
    authorizing revocation of supervised release, 
    18 U.S.C. § 3583
    (e), speaks in
    terms of “requir[ing] the defendant to serve in prison” rather than “imposing . . .
    imprisonment” as in § 3582(a),13 we agree with the Court of Appeals for the
    Fourth Circuit that this is a “distinction in search of significance.”14 As the
    Fourth Circuit noted, this is particularly true in light of the Supreme Court’s
    adoption of a broad definition of “imprisonment” as “[t]he state of being confined
    or a period of confinement.”15 “The Tapia Court’s unanimous conclusion was
    that where actual incarceration is involved, Congress did not intend for courts
    to consider rehabilitation in determining the fact or length of the sentence.”16
    Third, Tapia’s reasoning was not limited to the text of § 3582(a). “Equally
    illuminating,” the Court explained, “is a statutory silence—the absence of any
    provision granting courts the power to ensure that offenders participate in
    prison rehabilitation programs.”17 Unlike the statutes governing probation or
    supervised release, in which Congress gives courts authority to order
    participation in rehabilitation programs, the provisions governing the imposition
    of prison terms grant courts no such authority.18 “That incapacity speaks
    chooses to send someone to a term of confinement in a federal prison . . . .” (citing Tapia v.
    United States, 
    131 S. Ct. 2382
    , 2391 (2011))).
    13
    Compare 
    18 U.S.C. § 3583
    (e)(3) (emphasis added), with 
    id.
     § 3582(a) (emphasis
    added).
    14
    Bennett, 698 F.3d at 197; see also Molignaro, 
    649 F.3d at 2-3
     (dismissing a similar
    argument based on this distinction).
    15
    Bennett, 698 F.3d at 198 (alteration in original) (quoting Tapia, 131 S Ct. at 2389)
    (internal quotation marks omitted).
    16
    Id. at 197 n.*.
    17
    Tapia v. United States, 
    131 S. Ct. 2382
    , 2390 (2011).
    18
    
    Id.
    5
    No. 11-10543
    volumes.        It indicates that Congress did not intend that courts consider
    offenders’ rehabilitative needs when imposing prison sentences.”19
    As JUSTICE SOUTER, writing for the Court of Appeals for the First Circuit,
    observed, “There is nothing tentative about this reasoning: if Congress wanted
    judges to consider rehabilitation, it gave judicial authority to control [whether
    a defendant participated in such a program].”20 Since there is a similar absence
    of authority for district courts to mandate participation in rehabilitation
    programs while serving a term of imprisonment on revocation, we are bound to
    conclude that a sentencing court may not consider rehabilitative needs in
    imposing or lengthening any term of imprisonment.
    III
    Having resolved that 
    18 U.S.C. § 3582
    (a) applies to a revocation sentence,
    we must determine whether the district court improperly considered Garza’s
    rehabilitative needs in imposing a prison sentence. We conclude, based on the
    district court’s comments at sentencing, that it did so in this case.
    As noted, § 3582(a) proscribes the use of a defendant’s rehabilitative needs
    in imposing a prison term or in calculating the length of the defendant’s prison
    sentence. This does not mean, however, that a district court may make no
    reference to the rehabilitative opportunities available to a defendant. To the
    contrary, in Tapia the Court made clear that “[a] court commits no error by
    discussing the opportunities for rehabilitation within prison or the benefits of
    specific treatment or training programs.”21 A district court also may legitimately
    “urge the [Bureau of Prisons] to place an offender in a prison treatment
    19
    Id. at 2391.
    20
    United States v. Molignaro, 
    649 F.3d 1
    , 5 (1st Cir. 2011) (Souter, J. (Ret.), sitting by
    designation).
    21
    Tapia, 
    131 S. Ct. at 2392
    .
    6
    No. 11-10543
    program.”22 However, when the district court’s concern for rehabilitative needs
    goes further—when the sentencing record discloses “that the court may have
    calculated the length of [the defendant’s] sentence to ensure that she receive
    certain rehabilitative services”23—§ 3582(a) has been violated.
    Our limited precedent post-Tapia has described the distinction between
    legitimate        commentary      and       inappropriate   consideration       as   whether
    rehabilitation is a “secondary concern” or “additional justification” (permissible)
    as opposed to a “dominant factor” (impermissible) informing the district court’s
    decision.24       For example, in United States v. Receskey,25 the district court
    discussed the potential rehabilitative opportunities available to a defendant only
    after discussing its independent, unrelated reasons for selecting the length of the
    defendant’s sentence.26 This court held that the sentencing court had committed
    no Tapia error.27 By contrast, in United States v. Broussard,28 the district court
    first described in detail the need to incarcerate a defendant for a long period
    given the seriousness of his offense and the need to deter those who would
    22
    Id.
    23
    Id. at 2393.
    24
    United States v. Receskey, 
    699 F.3d 807
    , 810, 812 (5th Cir. 2012) (internal quotation
    marks omitted).
    25
    
    699 F.3d 807
    .
    26
    Receskey, 699 F.3d at 808-09.
    27
    Id. at 812. Similar cases from other circuits include United States v. Gilliard, 
    671 F.3d 255
     (2d Cir. 2012) (district court discussed rehabilitation but stated that, at bottom, any
    arguments for a lower sentence were “outweighed by what [the court] consider[ed] to be the
    high, high likelihood of recidivism and the serious nature of the crime committed and the
    crimes committed in the past” (alterations in original)), United States v. Lucas, 
    670 F.3d 784
    (7th Cir. 2012) (district court “briefly mentioned” rehabilitation programs after imposing the
    sentence), and United States v. Pickar, 
    666 F.3d 1167
     (8th Cir. 2012) (district court emphasized
    that the defendant needed to be deterred and was a danger to the public, and then noted that
    a longer sentence would provide the defendant with needed care and treatment).
    28
    
    669 F.3d 537
     (5th Cir. 2012).
    7
    No. 11-10543
    engage in similar conduct.29 The court, however, then went on to describe the
    defendant as “sick in the head” and as “need[ing] help badly,” among other
    things, and noted that although avoiding sentencing disparaties across cases is
    a goal in sentencing, it was “not as compelling as the need to incarcerate this
    individual for the treatment that he needs.”30 This court held that the district
    court improperly considered the defendant’s rehabilitative needs in arriving at
    the length of his sentence.31
    The record in the present case reflects that after noting generally that the
    Guidelines range of three to nine months of imprisonment “would not begin to
    address” Garza’s conduct and “wouldn’t satisfy the objectives applicable to
    revocation,” the court opined that Garza “should be required [or] at least be
    given an opportunity to participate in that residential institution drug treatment
    program” in order to “get [Garza] straightened out.” The court then embarked
    on a detailed discussion with the probation officer and Garza’s attorney
    regarding the rehabilitation programs that would be available to Garza if he
    29
    Broussard, 
    669 F.3d at 551
    .
    30
    
    Id. at 551-52
     (internal quotation marks omitted).
    31
    
    Id. at 552
    . Similar cases from other circuits include United States v. Mendiola, 
    696 F.3d 1033
     (10th Cir. 2012) (district court stated that it was sentencing the defendant to
    twenty-four months so he could participate in the Bureau of Prisons’ drug program), United
    States v. Taylor, 
    679 F.3d 1005
     (8th Cir. 2012) (district court stated that it was sentencing the
    defendant to twenty-four months so he could participate in a particular program available
    through the Bureau of Prisons), United States v. Grant, 
    664 F.3d 276
     (9th Cir. 2011) (district
    court emphasized that the defendant needed a sentence of twenty-four months to be placed into
    rehabilitation programs), and United States v. Molignaro, 
    649 F.3d 1
     (1st Cir. 2011) (district
    court stated generally that the Guidelines range would not address the defendant’s conduct
    and then imposed a longer sentence so that the defendant could participate in a rehabilitation
    program).
    8
    No. 11-10543
    were sentenced to twenty-four months or thirty months in prison.32 During
    32
    The breadth and depth of this discussion reflects that rehabilitative opportunities
    were considered by the court in determining the length of the prison term to be served:
    THE COURT: I’m impressed with the length of time you went on your
    supervised release before you started having problems. So you can do it, it looks
    like, if you worked on it, but I think you need some help.
    GARZA: Yes, Your Honor.
    THE COURT: Ms. Roper [sic], if he has a 30-month sentence, will they
    let him participate in the [long-term RDAP] program, or is that not long
    enough?
    PROBATION OFFICER: Your Honor, it could be enough time. I believe
    if there were only 24 months, he would not be eligible at all. Probably on a 30
    month, he would be able to get his name on the list.
    And I do see here in the record where he did participate in the RDAP
    program and did fine in that program while he was with the Bureau of Prisons
    previously. In addition, there are other programs that he can take other than
    the long term one. There are other courses he can take as well.
    THE COURT: That would be appropriate if he had, say, a 24 month
    sentence? Are there some programs?
    PROBATION OFFICER: He could probably take the 40-hour program
    and also take the relapse prevention program and focus on how to remain clean.
    I mean, he’s done it in the past like we’ve seen, but he needs to focus more on
    the relapse prevention.
    THE COURT: Well, do you think those programs you just mentioned
    would be helpful for him?
    PROBATION OFFICER: Yes, I believe so. The RDAP program, the long
    term [sic] is actually an inpatient program within the institution where they are
    housed in the same dormitories as all those going through an inpatient program.
    THE COURT: And he’s been through that?
    PROBATION OFFICER: And he’s been through that.
    THE COURT: Okay. Well, I’m going to—
    GARZA’S ATTORNEY: Your Honor, may I interject?
    THE COURT: Yes.
    GARZA’S ATTORNEY: It was my understanding that Mr. Garza would
    be eligible for the RDAP program based on a sentence of 24 months. I’m not
    aware of it being 30 months. I thought it was 24 months.
    THE COURT: You’re talking about the residential institutional program,
    whatever they call it?
    GARZA’S ATTORNEY: Yes, Your Honor. I just wanted to point out that
    9
    No. 11-10543
    this colloquy, the court made clear that rehabilitation was a standard factor it
    considered, stating, “[F]or a long time, years, I thought 24 months was enough
    [to get a defendant into a particular program], and I would sentence people to 24
    months thinking that would be enough, and they didn’t get to participate in the
    program.” Finally, after learning that a twenty-four month sentence would
    allow Garza to participate in programs that the probation officer thought would
    help Garza, the court announced its sentence as follows:
    I’m going to sentence this defendant to 24 months. I’m not going to
    give him enough time to participate in the long term program,
    because I don’t think he really needs that again. I think some of
    these shorter term programs ought to be enough for him. . . . I’m
    hoping a 24 month term of imprisonment followed by a 24 month
    term of supervised release will be enough. I hope so because I don’t
    want him to be up here again.
    The court offered no additional justifications for the sentence it imposed.
    The record makes clear that Garza’s rehabilitative needs were the
    dominant factor in the court’s mind. Although the record suggests that the court
    might have been inclined to impose some upward departure in light of Garza’s
    conduct, it relied only on Garza’s rehabilitative needs in fixing the length of
    Garza’s sentence. If the only factor emphasized by the court is rehabilitation,
    it a fortiori cannot be that rehabilitation was merely a secondary concern.
    it was my understanding that the defendant needed to be sentenced to a
    minimum of 24 months to be eligible for the program and—
    THE COURT: You’re talking about what we referred to as the long-term
    program?
    GARZA’S ATTORNEY: Yes. That’s my understanding, Your Honor.
    THE COURT: Okay. Well, I think your understanding is wrong because
    we’ve been informed by the Bureau of Prisons that that’s not enough time. . . .
    [Y]ou may want to double check on that, but for a long time, years, I
    thought that 24 months was enough, and I would sentence people to 24 months
    thinking that would be enough, and they didn’t get to participate in that
    program. We finally explored and discovered the reason. It just wasn’t enough
    time. . . .
    10
    No. 11-10543
    Additionally, the court made clear that it was its standard practice to tailor the
    prison sentence to the availability of rehabilitation programs. In light of these
    facts, the district court committed error under Tapia.
    IV
    Having found error, we must determine whether that error is reversible.
    The Supreme Court had not issued Tapia at the time Garza’s sentence was
    imposed.       Garza made no objection to the district court’s consideration of
    rehabilitative programs in deciding the term of imprisonment. Accordingly, we
    may vacate the sentence only if the error is plain.33
    When reviewing for plain error, we apply the following four-pronged test:
    (1) there must be an error or defect—some sort of [d]eviation from
    a legal rule—that has not been intentionally relinquished or
    abandoned; (2) the legal error must be clear or obvious, rather than
    subject to reasonable dispute; (3) the error must have affected the
    appellant’s substantial rights; and (4) if the above three prongs are
    satisfied, the court of appeals has the discretion to remedy the
    error—discretion which ought to be exercised only if the error
    seriously affect[s] the fairness, integrity or public reputation of
    judicial proceedings.34
    As we have explained, Garza has demonstrated that the district court erred. We
    therefore are concerned only with second, third, and fourth prongs.
    With respect to the second prong, we make the determination based on the
    state of the law at the time of the appeal, not at the time of trial.35 Although,
    until today, this court had not definitively answered whether § 3582(a) applies
    to revocation prison sentences, the post-Tapia case law in our sister circuits has
    33
    United States v. Whitelaw, 
    580 F.3d 256
    , 259-60 (5th Cir. 2009).
    34
    United States v. Escalante-Reyes, 
    689 F.3d 415
    , 419 (5th Cir. 2012) (en banc)
    (alterations in original) (quoting Puckett v. United States, 
    556 U.S. 129
    , 135 (2009)) (internal
    quotation marks omitted).
    35
    Id. at 423.
    11
    No. 11-10543
    uniformly held that Tapia applies to revocation sentences.36 The error was clear
    or obvious by the time of this appeal.37
    There is little question that the error affected Garza’s substantial rights.
    Under this prong, “the defendant must demonstrate that the error affected the
    outcome of the district court proceedings.”38 “In the context of sentencing, we
    ask ‘whether the error increased the term of a sentence, such that there is a
    reasonable probability of a lower sentence on remand.’”39 In this case, the prison
    term suggested by the Guidelines was three to nine months, and the district
    court imposed a prison term of twenty-four months, a substantial upward
    departure. Although the court arguably indicated that it might have imposed
    some above-Guidelines sentence due to Garza’s conduct, it focused only on the
    rehabilitative options that different sentences would afford Garza in fixing the
    length of Garza’s sentence. The combination of the disparity between the
    Guidelines range and the court’s statements at sentencing are “sufficient to
    undermine our confidence that the district court would have imposed the same
    36
    United States v. Bennett, 
    698 F.3d 194
     (4th Cir. 2012); United States v. Mendiola, 
    696 F.3d 1033
     (10th Cir. 2012); United States v. Taylor, 
    679 F.3d 1005
     (8th Cir. 2012); United
    States v. Grant, 
    664 F.3d 276
     (9th Cir. 2011); United States v. Molignaro, 
    649 F.3d 1
     (1st Cir.
    2011) (Souter, J. (Ret.), sitting by designation); see also United States v. Jackson, 477 F. App’x
    377 (6th Cir. 2012); United States v. Williams, 467 F. App’x 59 (2d Cir. 2012).
    37
    Mendiola, 696 F.3d at 1042; Taylor, 
    679 F.3d at 1007
    ; Grant, 
    664 F.3d at 279
    ;
    cf. United States v. Salinas, 
    480 F.3d 750
    , 759 (5th Cir. 2007) (“Because this circuit’s law
    remains unsettled and the other federal circuits have reached divergent conclusions on this issue
    . . . , Salinas cannot satisfy the second prong of the plain error test—that the error be clear
    under existing law.” (emphasis added) (citing United States v. Bennett, 
    469 F.3d 46
    , 50 (1st Cir.
    2006), and United States v. Thompson, 
    82 F.3d 849
    , 856 (9th Cir. 1996))).
    38
    United States v. Broussard, 
    669 F.3d 537
    , 553 (5th Cir. 2012) (citing Puckett, 
    556 U.S. at 135
    ).
    39
    Escalante-Reyes, 689 F.3d at 424 (quoting United States v. Garcia-Quintanilla, 
    574 F.3d 295
    , 304 (5th Cir. 2009)).
    12
    No. 11-10543
    sentence absent the error.”40 We conclude that Garza’s substantial rights were
    violated.
    Finally, we must assess whether the error in this case so “affects ‘the
    fairness, integrity, or public reputation of judicial proceedings’” that we should
    exercise our discretion to correct it.41 In making that determination, we do not
    assume that this prong is automatically satisfied if we find prejudicial error
    under the third prong.42 With that caveat in mind, and following this court’s
    own precedent in United States v. Escalante-Reyes43 as well as that of our sister
    circuits,44 we believe that this case merits reversal.
    *        *      *
    For the foregoing reasons, Garza’s sentence is VACATED and the case is
    REMANDED for resentencing consistent with this opinion.
    40
    
    Id. at 425
    .
    41
    
    Id.
     (quoting Puckett, 
    556 U.S. at 135
    ).
    42
    United States v. Reyna, 
    358 F.3d 344
    , 352 (5th Cir. 2004) (en banc).
    43
    
    689 F.3d 415
    , 425-26.
    44
    United States v. Mendiola, 
    696 F.3d 1033
    , 1042 (10th Cir. 2012); United States v.
    Taylor, 
    679 F.3d 1005
    , 1007 (8th Cir. 2012); United States v. Grant, 
    664 F.3d 276
    , 282 (9th Cir.
    2011).
    13
    No. 11-10543
    CATHARINA HAYNES, Circuit Judge, dissenting:
    I respectfully dissent.       I agree that Tapia applies to sentences of
    imprisonment upon revocation of supervised release. I disagree that the district
    court here lengthened the sentence of imprisonment in order to provide
    rehabilitation, which is the error Tapia condemns.1 United States v. Receskey,
    
    699 F.3d 807
    , 810 (5th Cir. 2012) (“Tapia, however, made clear that district
    courts do not err by discussing the rehabilitative opportunities within prison.”).
    After beginning his supervised release following a conviction for possession
    of methamphetamine with intent to distribute, Garza does not dispute that he
    regressed back into drug use and other violations of his supervised release
    conditions. At his sentencing upon revocation of supervised release, the district
    court engaged in a lengthy colloquy with the defendant and his lawyer about the
    defendant’s experience on supervised release, what led to the conduct that gave
    rise to the revocation, and his prior periods of confinement. After that colloquy,
    in which the court observed that a prior sentence had been very lenient, the
    court stated: “I’ve considered the policy statement range of three to nine months
    and that would not begin to address your conduct. It wouldn’t satisfy the
    objectives of sentencing applicable to revocation in my view.”
    The court then addressed the issue of treatment programs in prison,
    asking if a 30-month sentence would be long enough to allow participation in
    such a program. The probation officer indicated: “[I]t could be enough time. I
    believe if there were only 24 months, he would not be eligible at all. Probably on
    a 30 month, he would be able to get his name on the list.” The probation officer
    and the district judge then discussed the availability of “shorter” courses;
    1
    Nothing in the record suggests that the district court’s consideration of whether to
    impose a sentence of imprisonment at all—the other type of Tapia error—was influenced by
    any consideration of rehabilitation.
    14
    No. 11-10543
    however, nothing tying the length of those “shorter” courses to the length of
    imprisonment was discussed.2
    At that point, the defendant’s attorney interjected that he did not think 30
    months were required to complete a “long-term” program; 24 months would be
    enough. Thus, not only did the defendant’s attorney not object to consideration
    of prison treatment programs, he in fact furthered and seemed to agree with that
    consideration. Had the district court then pronounced a sentence of 24 months,
    the majority opinion’s position would seem accurate. However, at that point, the
    district judge expressly disagreed with the defense attorney about 24 months
    being adequate to engage in such a program. The court then ultimately decided
    to impose a 24-month sentence. The import of this discussion is that the district
    court considered lengthening the defendant’s sentence to allow for treatment in
    prison (i.e. “rehabilitation”) but decided not to do so.             That conclusion is
    buttressed by the signed judgment which provides as a condition of supervised
    release that the defendant shall undergo mental health and drug treatment but
    does not so much as recommend to the Bureau of Prisons any treatment while
    imprisoned.
    On plain error review, given the totality of the record, I cannot agree that
    the district court erred. Accordingly, I would not reach the other prongs of plain
    error review. Therefore, I respectfully dissent.
    2
    The only time period mentioned for the “shorter” courses was that one of the courses
    was a “40-hour course.”
    15