United States v. Terrance Shaw ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1692
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE J. SHAW,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 07-CR-10004-001 — Joe Billy McDade, Judge.
____________________
ARGUED DECEMBER 3, 2021 — DECIDED JULY 6, 2022
____________________
Before ROVNER, HAMILTON, and JACKSON-AKIWUMI, Cir-
cuit Judges.
JACKSON-AKIWUMI, Circuit Judge. Terrance Shaw violated
multiple conditions of his supervised release. The district
court revoked his supervised release and sentenced him to
two years’ imprisonment—well above the range recom-
mended by the Sentencing Commission’s policy statements.
The court did not mention the sentencing factors from 18
U.S.C. § 3583(e), the statute that governs revocation of
2 No. 21-1692
supervised release, as grounds for the upward variance. The
court instead explained that it was sending Shaw to prison to
“help” him and give him a chance to access rehabilitative pro-
grams. Congress has directed sentencing courts to recognize
that “imprisonment is not an appropriate means of promoting
correction and rehabilitation.” 18 U.S.C. § 3582(a). Courts are
thus precluded from imposing or lengthening a prison term
to promote an offender’s rehabilitation. Tapia v. United States,
564 U.S. 319, 325–26 (2011). Because the record suggests that
the district court lengthened a term of imprisonment to reha-
bilitate Shaw, we vacate Shaw’s sentence and remand for fur-
ther proceedings.
I
A. Factual Background
Shaw served 10 years in prison after he pleaded guilty to
possessing cocaine base with intent to distribute, see 21 U.S.C.
§ 841(a)(1) and (b)(1)(B), and possessing a firearm as a felon,
see 18 U.S.C. § 922(g). Upon his release in January 2020, Shaw
began a six-year term of supervision.
Shaw’s supervision was rocky from the start. During the
first two months, Shaw tested positive for marijuana, meth-
amphetamine, and amphetamine, and was arrested for driv-
ing on a revoked license. The district court reprimanded him
with 60 days of home confinement and ordered him to partic-
ipate in cognitive behavioral therapy. Two months later,
Shaw’s probation officer reported that Shaw had violated the
terms of home confinement and submitted a fake paystub. Be-
cause the COVID-19 pandemic was now in full swing, the of-
ficer recommended no action. But six months after that, Shaw
received another citation for driving on a revoked license. A
No. 21-1692 3
month after that, Shaw was caught again driving without a
license—this time, while traveling outside the judicial district
without permission.
As a sanction for his repeated violations, the district court
ordered Shaw to spend five weekends in county jail. During
his first weekend in jail, Shaw got into an argument with jail
staff. He then threatened to kill himself so that staff would
have to pay damages to his kids, threatened to flood his cell,
and told staff he would return next week with “a gift” (which
staff interpreted as a threat). When staff told Shaw that they
would stop allowing him to serve his supervision require-
ments at the jail, and that he would need to seek a supervision
modification from the district court, Shaw cursed at them.
Shaw’s probation officer then petitioned for revocation.
The officer cited Shaw’s behavior in jail, plus Shaw’s failure
to attend court-mandated therapy. The officer also filed a
memorandum describing Shaw’s supervision history and
failure to adjust to life outside prison. Among other things,
the memorandum noted that Shaw had obtained an appren-
ticeship with a laborer’s union shortly after his release, but the
union terminated his employment because he failed to com-
plete classes, attend meetings, and submit his training hours.
The memorandum further described what the officer saw as
Shaw’s attempted manipulation of the court during the revo-
cation proceedings. Most significantly, in an attempt to obtain
a continuance, Shaw claimed at his initial appearance that his
son had nowhere to go because of his arrest. His son actually
lived with a family member.
4 No. 21-1692
B. District Court’s Decision
Shaw admitted to the charged violations with only minor
quibbles about some of the facts. (For example, he denied the
exact phrasing of some of his threats to jail staff.) He also ad-
mitted that the government could prove he had been malin-
gering when he threatened suicide at the jail. The district
court accepted, without objection, the probation officer’s cal-
culation that these violations subjected Shaw to a statutory
maximum of 5 years’ imprisonment, with an advisory range
of 8–14 months’ imprisonment under the Sentencing Guide-
lines’ relevant policy statement.
The government asked the court to impose two years’ im-
prisonment. It highlighted what it argued were examples of
Shaw’s repeated dishonesty, and it argued that an above-
guidelines sentence was necessary to reflect Shaw’s violation
of the court’s trust.
Shaw asked for time served. His counsel started the argu-
ment on Shaw’s behalf by noting that Shaw had signed up for
online college courses. But the court interrupted counsel, crit-
icized Shaw for his inability to hold down a job, and ques-
tioned Shaw at length about what he hoped to accomplish
with an associate degree. Shaw explained that he wanted to
someday start his own business—a statement the court dis-
missed as a “pipe dream.” The court pointed out that despite
getting a high-paying union job during the height of the pan-
demic, Shaw had lost the job because he failed to perform
“trivial” tasks like reporting his training hours.
Shaw’s counsel and the court then engaged in a back and
forth about what Shaw needed to end his cycle of violations.
Counsel argued that Shaw was having trouble adjusting to
No. 21-1692 5
life after prison, and that Shaw’s self-defeating behavior was
evidence that he needed psychological help and therapy—not
more prison time. Counsel asked the court to impose super-
vision conditions related to rehabilitation, such as a psycho-
logical evaluation and further therapy. But the court ex-
pressed skepticism about allowing Shaw “to again participate
in all the programs he has rejected.” And it asked counsel to
explain how, if Shaw did not return to prison, the court could
ensure his compliance with rehabilitative efforts.
During Shaw’s allocution, Shaw, like counsel, expressed
his belief that he needed rehabilitation. He asked for one more
chance on supervision to achieve rehabilitation through men-
tal-health treatment, drug treatment, and cognitive therapy.
In response, the court asked him what assurances he could
make that he would live up to the court’s expectations.
The court then announced its sentence. The court recog-
nized the possibility, advocated by counsel, that Shaw might
have experienced a negative adjustment from prison or some-
thing akin to posttraumatic stress disorder. But the court also
explained that it had familiarized itself with Shaw’s violations
and how he failed to take advantage of the opportunities that
probation had provided—opportunities the court categorized
as “the best our probation office can give him.”
The district judge contrasted Shaw’s background against
his own. Both the judge and Shaw are African American, and
both had parents who died while they were young. But the
judge explained that he had grown up picking cotton in Jim
Crow-era Texas, yet he had done whatever he could to get an
education and leave that environment. He said that he ex-
pected the same from Shaw and believed that Shaw had the
same potential. Nonetheless, the judge continued, Shaw had
6 No. 21-1692
squandered the good fortune he had received in the last year
when he was accepted into a union and started earning mid-
dle-class wages. The judge explained that reading Shaw’s file
reminded him of people he knew while growing up who were
irresponsible and unreliable.
The judge explained that counsel’s arguments had tem-
pered his feelings about Shaw, and he thought Shaw was
“worth trying to save.” But Shaw first had to pay the conse-
quence for his “sin” of failing to accept his good fortune.
“[W]hether we call it God or what, when fortune gives you a
chance, a second chance, you’ve gotta take it.”
The judge concluded:
I hope you can perceive that I care for you.
You’re not just a—I care for you. I’m like a par-
ent who cares for his child, but he knows that I
gotta do something hurtful if I’m gonna help
this child that I love.
I’m gonna sentence you to 24 months, sir, and
with your time served, it may end up some-
where between 18 or 20 months. That period of
time will give you a chance, hopefully, to enjoy
some—to look at the programs you’re gonna be
offered in prison in a totally different light.
Shaw had already survived 13 years in prison, the judge con-
tinued, so this time he could “really focus on how [he] can get
the benefit of prison, how [he] can come out of prison being a
better person.” The judge acknowledged that Shaw did not
receive the time-served sentence Shaw had requested, but the
judge said he was “doing what I think is the best way I can
help you.”
No. 21-1692 7
The district court did not mention the sentencing factors
listed in 18 U.S.C. § 3553(a). Further, apart from the court’s
statements about Shaw’s ability to access rehabilitative pro-
grams in prison, and its explanation that it was doing what it
thought was best to help Shaw, the court provided no expla-
nation for the length of Shaw’s prison term or why an upward
variance from the advisory range was necessary.
II
On appeal, Shaw asserts three arguments: (1) the district
court violated the rule from Tapia v. United States, 564 U.S. 319(2011), by sentencing him to a term of imprisonment for the
purpose of rehabilitation; (2) the court failed to consider the
relevant sentencing factors in 18 U.S.C. § 3553(a); and (3) the
court impermissibly relied on its own religious biases when it
called Shaw’s conduct a “sin.” The first two contentions are
interrelated, so we discuss them together; we address the final
contention separately.
Because Shaw raises claims of constitutional and proce-
dural sentencing error, our review is de novo. United States v.
Coe, 992 F.3d 594, 597 (7th Cir. 2021). The government unper-
suasively argues that plain-error review should apply to
Shaw’s Tapia and religious-bias claims because Shaw failed to
raise those objections in the district court. But criminal de-
fendants are not required to object to a district court’s ruling
after it has already been made. United States v. Pennington, 908
F.3d 234, 238 (7th Cir. 2018). Here, Shaw did not have any op-
portunity to raise a Tapia objection, nor to object to the district
court’s purportedly religious comments, because the court
did not announce the reasoning for its sentence until the end
of the hearing when it imposed judgment.
8 No. 21-1692
When we have applied plain-error review to forfeited
Tapia claims in other cases, we have done so because the dis-
trict court gave the defendant an opportunity to object before
it entered judgment. We have often encouraged district courts
to give lawyers a final chance at the end of a sentencing hear-
ing to raise any arguments or objections the court has not yet
addressed. See, e.g., United States v. Lewis, 823 F.3d 1075, 1083
(7th Cir. 2016). Defendants may forfeit any unvoiced Tapia
claims when a court follows this practice by announcing a ten-
tative decision, along with its reasoning, and then inviting ob-
jections before imposing the sentence. See United States v. Bur-
rows, 905 F.3d 1061, 1067 (7th Cir. 2018); United States v. Kopp,
922 F.3d 337, 341 n.2 (7th Cir. 2019); United States v. Holman,
840 F.3d 347, 353 (7th Cir. 2016). The same is true for unvoiced
constitutional challenges. See United States v. Peterson, 711 F.3d
770, 775 (7th Cir. 2013). But because the district court did not
follow this practice, and because Shaw lacked any other op-
portunity to raise his objections before the court imposed
judgment, the default de novo standard applies.
A. The Sentencing Factors and the Tapia Rule
1. The Standard upon Revocation from Supervised Re-
lease
When considering whether to modify or revoke a term of
supervised release, a district court must consider the relevant
statutory factors in 18 U.S.C. § 3583(e). See United States v. Rob-
ertson, 648 F.3d 858, 859 (7th Cir. 2011); see also § 3583(e) (cross-
referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7)).
Broadly speaking, the § 3583(e) factors include the nature of
the offense, the defendant’s history and characteristics, the
need for deterrence and to protect the public, the need to
No. 21-1692 9
provide restitution for victims, and the policy statements of
the Sentencing Commission.
The factors under § 3583(e) also include the need to “pro-
vide the defendant with needed educational or vocational
training, medical care, or other correctional treatment.” 18
U.S.C. § 3553(a)(2)(D). But a district court’s consideration of
this factor is limited by the Supreme Court’s decision in Tapia,
which held that federal courts are precluded from imposing
or lengthening a prison term to promote an offender’s reha-
bilitation. Tapia, 564 U.S. at 325–26. As the Court explained,
its holding flowed from the statutory scheme surrounding
federal sentences.
When Congress enacted the Sentencing Reform Act of
1984, it redefined the purposes of sentencing. Gone was the
old, rehabilitative model of prison embodied by indetermi-
nate sentences and parole. Instead, Congress moved toward
a system of determinate sentences; it hoped that doing so
would cut down on sentencing disparities and do away with
“outmoded” assumptions about prison’s rehabilitative func-
tion. Mistretta v. United States, 488 U.S. 361, 365–66 (1989) (de-
scribing the act’s effect). Under this regime, federal courts
must choose between prison (often followed by a term of su-
pervised release), fine, or probation, and impose a sentence
that is “sufficient, but not greater than necessary” to reflect
the four general purposes of sentencing described in 18 U.S.C.
§ 3553(a)(2): retribution, deterrence, incapacitation, and reha-
bilitation.
District courts consider these four purposes when fashion-
ing a sentence but only “to the extent that they are applica-
ble.” 18 U.S.C. § 3551(a). Not all purposes apply to all types of
sentences, and courts must disregard certain purposes
10 No. 21-1692
depending on which type of sentence they are imposing.
Tapia, 564 U.S. at 325–26. For example, a court may not impose
a term of supervised release for the purpose of retribution. Id.at 326 (citing 18 U.S.C. § 3583(c)). And, as part of the depar-
ture from an indeterminate sentencing system, Congress di-
rected courts to “recogniz[e] that imprisonment is not an ap-
propriate means of promoting correction and rehabilitation.”
18 U.S.C. § 3582(a). Accordingly, § 3553(a)’s fourth sentencing
purpose—the need for rehabilitation through training, medi-
cal care, or other programs—is not applicable when a court
imposes a term of imprisonment.
In Tapia, the Supreme Court vacated a sentence after the
district court lengthened the defendant’s prison term to en-
sure that she could complete a prison drug-treatment pro-
gram. 564 U.S. at 321–22. Not only did Congress explicitly di-
rect district courts to disregard rehabilitative needs when im-
posing prison time, the Tapia Court explained, Congress also
failed to empower courts with any means to compel partici-
pation in prison-based rehabilitative programs. In contrast,
when Congress instructed courts to consider rehabilitation
before imposing probation or supervised release, see 18 U.S.C.
§§ 3562(a) and 3583(c), it also enacted provisions allowing
courts to order the offender’s participation in specific pro-
grams and facilities. See id. §§ 3563(a)(4), 3563(b)(9),
3563(b)(11), 3583(d). In other words, “when Congress wanted
sentencing courts to take account of rehabilitative needs, it
gave courts the authority to direct appropriate treatment.”
Tapia, 564 U.S. at 330. If a court wishes to order treatment for
an offender, it must do so using alternatives to imprisonment.
Although Tapia involved an appeal from an initial sentenc-
ing, the government does not dispute that the same rule
No. 21-1692 11
applies during a revocation of supervised release. We like-
wise have assumed that it does, even though we have not ex-
plicitly held so. See, e.g., Kopp, 922 F.3d 337 (vacating revoca-
tion sentence for Tapia error). And every circuit to explicitly
consider the issue has concluded that Tapia’s reasoning ap-
plies equally when a court decides whether to impose a prison
term in response to violations of supervised release. See
United States v. Schonewolf, 905 F.3d 683, 690 (3d Cir. 2018);
United States v. Vandergrift, 754 F.3d 1303, 1309 (11th Cir.
2014); United States v. Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013);
United States v. Deen, 706 F.3d 760, 765–67 (6th Cir. 2013);
United States v. Garza, 706 F.3d 655, 657–59 (5th Cir. 2013);
United States v. Bennett, 698 F.3d 194, 198 (4th Cir. 2012); United
States v. Mendiola, 696 F.3d 1033, 1037–42 (10th Cir. 2012);
United States v. Taylor, 679 F.3d 1005, 1006 (8th Cir. 2012);
United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011); United
States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011) (Souter, J., sit-
ting by designation). We see no reason to depart now from
this consensus.
2. Application to Shaw’s case
We agree with Shaw that his sentence violates Tapia be-
cause a desire to rehabilitate him was the driving force behind
the district court’s decision to impose a two-year prison term.
At the conclusion of Shaw’s sentencing hearing, the district
court explained that it was imposing a 24-month prison term
because “[t]hat period of time will give you a chance, hope-
fully, to enjoy some—to look at the programs you’re gonna be
offered in prison in a totally different light.” This comment
was the court’s only statement about the length of Shaw’s
prison term. And after explaining the length of the sentence,
the judge further emphasized that he was “doing what I think
12 No. 21-1692
is the best way I can help you” and that Shaw should focus on
how to “get the benefit of prison” and “come out of prison a
better person.”
The government maintains that the court’s comments
about rehabilitation were an afterthought. It says that the
court first relied on permissible grounds to decide the sen-
tence and then, because Shaw was going to prison anyway,
the court merely mentioned that rehabilitative programs
would be available. If so, then the court acted permissibly;
Tapia’s only prohibition is against citing rehabilitation as a
reason for imprisonment. After a court has decided upon a
sentence of imprisonment, that court is free to discuss the op-
portunities for rehabilitation within prison or encourage the
defendant to seek out relevant programs. Tapia, 564 U.S. at
334.
In support of its position that the court complied with
Tapia, the government cites two cases in which a district court
referenced rehabilitation while imposing a prison sentence. In
Burrows, 905 F.3d at 1067, a district court chose a prison sen-
tence that it thought would “be sufficient time to address the
harm caused by your conduct and to also hopefully specifi-
cally deter you and give you time to avail yourself of the sex of-
fender treatment.” In United States v. Lucas, 670 F.3d 784, 795
(7th Cir. 2012), a court imposed a prison sentence that would
“serve to hold the defendant accountable, serve as a deterrent,
protect the community, provide the opportunity for rehabili-
tative programs and achieve parity with sentences of simi-
larly-situated offenders.” We upheld both judgments be-
cause, although the courts had mentioned rehabilitation as
one of several reasons for the imposed prison terms, context
No. 21-1692 13
made clear that other permissible factors were the primary
considerations behind the prison sentences.
Burrows and Lucas do not help the government because the
context here shows the opposite: rehabilitation was the pri-
mary reason for the length of the imposed prison term.
Shaw’s need for rehabilitation was the focus of Shaw’s argu-
ments and the court’s comments throughout the hearing.
Shaw asked for leniency because, he argued, he needed a psy-
chological evaluation and behavioral treatment. So instead of
imprisonment, he requested a return to supervision along
with the reimposition of treatment programs—programs the
court could impose only as part of a sentence of supervised
release. See Tapia, 564 U.S. at 330. The court rejected Shaw’s
arguments because it did not believe that Shaw was compe-
tent to comply with treatment programs. It then imposed a
two-year prison term, which it explained was enough time for
Shaw to get the treatment he sought. Taken as a whole, the
court’s approach to sentencing suggests that it believed an
above-guidelines term of imprisonment was the better option
to ensure Shaw’s compliance with rehabilitative programs.
The court also framed its sentence in paternalistic terms,
explaining that the court was “like a parent who cares for his
child,” imposing a “hurtful” prison sentence to “help this
child that I love.” The court finished by stating that although
Shaw was “not getting everything” he asked for at sentencing
(that is, a return to supervision without further imprison-
ment), the judge was “doing what I think is the best way I can
help you.” The most plausible reading of these statements is
that the court thought prison would rehabilitate Shaw in a
way that supervision could not.
14 No. 21-1692
To be clear, the record does not suggest that rehabilitation
was the only reason for revocation. Although the court did
not mention the sentencing factors, it alluded to other reasons
for revoking Shaw’s supervision. For example, it discussed
the nature of Shaw’s violations, his personal history and char-
acteristics, and the need to deter him from further miscon-
duct. See 18 U.S.C. § 3553(a)(1), (a)(2)(B). These are all factors
that could support a term of imprisonment. But rehabilitation
was the only reason cited by the court for the length of the 24-
month prison term. That term was an upward variance of 10
months, and more than 70 percent higher than the top of the 8-
to-14-month advisory range. Because the court did not explain
how any other considerations factored into the length chosen,
our impression from the overall transcript is that a desire for
rehabilitation was the driving force for the court’s decision.
Rehabilitation was not merely “thrown into a blender with
myriad other factors.” United States v. Vazquez-Mendez, 915
F.3d 85, 88 (1st Cir. 2019).
Again, we recognize that courts are free to discuss the
availability of rehabilitative programs and even encourage
defendants to use them. But by relying on rehabilitation as the
sole basis for an upward variance, the court crossed the line
from permissible comments to impermissible consideration.
Because Tapia applies to both the imposition of a prison sen-
tence and the lengthening of one, the court’s reliance on reha-
bilitation to impose the upward variance warrants remand.
We also recognize the difficult position that district courts
find themselves in under Tapia. On one hand, 18 U.S.C.
§ 3583(e) requires courts to consider several purposes of sen-
tencing—including rehabilitation—before revoking an of-
fender’s supervision or imposing a sentence. On the other,
No. 21-1692 15
§ 3582(a) forbids courts from relying on rehabilitation as a
reason for prison time. Combined, these provisions seemingly
force courts to walk a tightrope where they must both demon-
strate their consideration of the offender’s need for rehabilita-
tion while also disavowing that consideration as a reason for
any resulting term of imprisonment.
This nuanced consideration of rehabilitation, however, is
an integral part of the federal system of determinate sen-
tences. Depending on how a court weighs the need for reha-
bilitation, it might decide to keep the defendant on supervi-
sion and impose new conditions in lieu of imprisonment. Or,
if the court decides that imprisonment is necessary to satisfy
another purpose of sentencing such as the need for deterrence
or to protect the public, it can address the defendant’s reha-
bilitative needs through a subsequent term of supervision.
Then, as a defendant serves that term, the court can modify
the conditions of supervision as necessary to reflect, among
other things, the defendant’s evolving rehabilitative needs.
See 18 U.S.C. § 3583(e)(2). But a court generally cannot make
similar adjustments to a prison sentence.
Further, the difficulty posed by Tapia is not unique. Courts
face a similar dilemma with regard to § 3553(a)(2)(A), which
dictates that sentences provide just punishment. Subsection
(a)(2)(A) is among the provisions a court must consider dur-
ing an initial sentencing. But to the extent that the sentence
includes a term of supervision—as most sentences do—the
court may not consider punishment when determining the
length and conditions of supervision. 18 U.S.C. § 3583(c). Yet
courts routinely manage to handle this factor appropriately;
they fashion a term of imprisonment that reflects (among
other things) the need to impose just punishment, before
16 No. 21-1692
pivoting to supervision and assessing what future conditions
will be necessary to rehabilitate the defendant and deter the
defendant from future misconduct.
When district courts explicitly identify the sentencing fac-
tors listed in § 3583(e) and explain how they incorporated
those factors into the final sentence, they mitigate the possi-
bility of a Tapia challenge on appeal. Yet the district court here
did not mention the factors at all (though, as we mentioned
earlier, the court alluded to them as grounds for revocation).
And given the marquee role that Shaw’s need for rehabilita-
tion played in his mitigation arguments and the court’s state-
ments, the court’s silence as to the other factors leaves us with
the impression that rehabilitation was the seminal factor in
the length of the prison sentence.
Because we vacate the judgment on Tapia grounds, we
need not address Shaw’s argument that the court’s failure to
mention the statutory sentencing factors is an alternative
ground for remand. See, e.g., United States v. Boultinghouse, 784
F.3d 1163, 1177–80 (7th Cir. 2015) (vacating sentence when
court mechanically imposed a guidelines sentence upon rev-
ocation without any further explanation). We note, however,
that these two issues are intertwined. Even if a sentencing
court need not march through the factors in checklist fashion
or explicitly address each one, see United States v. Dawson, 980
F.3d 1156, 1164 (7th Cir. 2020); United States v. Barrera, 984 F.3d
521, 524 (7th Cir. 2020), the court should still make clear how
the factors play into its judgment so that an appellate court is
not forced to infer the factors’ influence from context. Here,
without express indication from the district court about how
it weighed the applicable sentencing factors, we are left with
No. 21-1692 17
only the court’s clear statements about how the inapplicable
factor of rehabilitation determined Shaw’s prison time.
Because rehabilitation played a primary role in the court’s
decision to impose a 24-month prison term, we vacate the sen-
tence on that basis. We otherwise take no position on the ap-
propriateness of Shaw’s sentence. Although district courts are
not required to address every statutory factor in checklist
fashion, we nonetheless encourage the district court to explic-
itly explain on remand how it weighs the applicable factors
when resentencing Shaw.
B. The District Court’s Religious Comments
Shaw’s alternative argument that the judge erred by infus-
ing his religious views into the judgment warrants only brief
mention. Shaw seizes on a single out-of-context statement in
which the court called Shaw’s failure to accept his good for-
tune a “sin”:
[Y]ou’ve got to pay the consequence. That’s the
beginning. You have to pay your debt to this
Court and to what’s right and to your failure to
accept your good fortune. And that’s a sin.
When you get a second chance, when fortune --
whether we call it God or what, when fortune
gives you a chance, a second chance, you’ve
gotta take it. And for your failure to do that,
there’s gotta be a consequence.
According to Shaw, this statement alone requires remand be-
cause it creates the perception that the court punished him for
offending the court’s own sense of religious propriety. See,
e.g., United States v. Bakker, 925 F.2d 728, 740–41 (4th Cir. 1991).
18 No. 21-1692
We are unpersuaded. A defendant cannot obtain reversal
merely by identifying statements that appear problematic
when taken out of context; a defendant must also show that
the judge actually relied on an impermissible factor to arrive
at the sentence imposed. Coe, 992 F.3d at 598. Context here
shows that the district court simply chose this language to
emphasize how it felt about Shaw’s actions. Calling Shaw’s
wasted potential a “sin” was only one of several analogies the
court used to get its point across. The judge also analogized
his use of education as a way out of Jim Crow Texas to Shaw’s
good fortune in landing the union job. The judge likewise
compared his relationship with Shaw to “a parent who cares
for his child.” Given the court’s use of other analogies, the
most logical reading of the “sin” comment is that the court
simply used religious terminology as a metaphor. 1 As Shaw
conceded during oral argument, the court used the word “for-
tune” to describe Shaw’s circumstances more times than it
used the word “God.” Rather than an impermissible imposi-
tion of the court’s religious beliefs, these statements strike us
as part of a permissible—and laudable—attempt by the court
to make a connection with Shaw.
Because we see no evidence of religious bias in the record,
we also see no reason to grant Shaw’s request under Circuit
Rule 36 to reassign the case on remand to a different district
judge.
1 See Sin, Merriam-Webster Dictionary Online, https://www.merriam-
webster.com/dictionary/sin (last visited Jun. 14, 2022) (providing alterna-
tive definitions such as “an action that is or is felt to be highly reprehensi-
ble” and “an often serious shortcoming”).
No. 21-1692 19
III
Because the district court’s desire to rehabilitate Shaw was
a driving force behind the court’s imposition of a 24-month
term of imprisonment, we VACATE the judgment and
REMAND for further proceedings consistent with this opin-
ion.
20 No. 21-1692
HAMILTON, Circuit Judge, concurring in the judgment. I
agree with much of the lead opinion’s general description of
the law of sentencing. I also agree with the lead opinion anal-
ysis of Tapia v. United States, 564 U.S. 319 (2011) and 18 U.S.C.
§ 3582(a), and its recognition that Tapia and the statute put
district judges in a difficult position. Ante at 14–15. I write
separately to highlight that dilemma. As I understand Judge
McDade’s thinking in this case, rehabilitation efforts on su-
pervised release were not working because Shaw was not par-
ticipating in them. Along with his other, repeated violations
of supervised release conditions, that was a good and suffi-
cient reason to impose a prison sentence here, and even a sen-
tence longer than the Guidelines advised. What is forbidden
by § 3582(a) and Tapia is an indication that the goal of rehabil-
itating Shaw in prison drove the decisions whether to send
Shaw back to prison and for how long.
The difficulty is that in deciding whether to impose a sen-
tence or to revoke supervision, the judge must consider sev-
eral purposes of sentencing, including rehabilitation. But once
the court decides to sentence a defendant to prison, the court
may not do so for purposes of rehabilitation. And further, if
the court imposes a prison sentence, without considering re-
habilitation as a goal, the judge may then encourage the de-
fendant to participate in a range of rehabilitative programs.
Here, in other words, is the cognitive challenge for a sen-
tencing judge: first, consider rehabilitation at step one, in
choosing among types of sentences. Next, if imposing a prison
sentence, at step two, stop thinking about rehabilitation. Fi-
nally, encourage rehabilitation at step three. That’s a fair read-
ing of § 3582(a) and Tapia, but I do not believe the decision-
making mind can erase so easily what has gone before. We
No. 21-1692 21
expect the judge to consider so many factors and goals in
reaching a final sentence and to explain them on the record.
The lead opinion recognizes that § 3582(a) and Tapia put a
sentencing judge in this difficult position that seems to force
the judge to “walk a tightrope.” Ante at 15. The majority in-
sists, though, that this “nuanced consideration” of rehabilita-
tion is necessary under § 3582(a) and Tapia. That is an accurate
reading of those authorities, but these instructions from Con-
gress and the Supreme Court are not realistic and invite hy-
pocrisy or silence from sentencing judges.
When I read this sentencing transcript, I see a judge who
was patient, humane, wise, and fair. Judge McDade was deal-
ing with an unusually difficult case. The defendant had been
provided multiple opportunities to straighten out his life, in-
cluding a path to an unusually well-paying job in the middle
of the pandemic. He kept wasting those opportunities. The
judge’s choice to revoke Shaw’s supervised release and to
send him to prison was reasonable and easily predictable. As
the lead opinion notes, Shaw had repeatedly violated im-
portant conditions of his supervised release. Sanctions less se-
vere than prison had not had any noticeable effect. The judge
was not required to credit Shaw’s assurances that this time he
would finally follow through on therapy and other rehabili-
tative programs if they were imposed again as conditions of
supervised release. A more legalistic explanation of Shaw’s
revocation sentence on remand should pass muster as long as
the district court makes explicit reasons that were left implicit
in this transcript and avoids hinting that goals of rehabilita-
tion in prison affected the fact or length of the prison sentence.
Tapia is just one example of how federal sentencing law
has become more and more complex, with more and more
22 No. 21-1692
opportunities for reversible error. A district judge can reduce
the risk of reversible error by disengaging from the individual
defendant and the difficult challenges: Just calculate the
Guidelines and follow them, perhaps noting that any tricky
guideline issue had no effect on the bottom line and that the
§ 3553(a) factors control. As was sometimes true during the
years when the Sentencing Guidelines were binding, an error-
free sentencing hearing can still sound a lot like an arithmetic
problem. A remand like this one further encourages that sort
of mechanical march through the Guidelines and the statu-
tory factors.
Yet we hope for more. We want the sentencing judge to
engage with the defendant, the offense, and victims—under-
standing the stories behind the crime and the prospects for
the future. We want the judge to sentence the defendant as an
individual with his own history and characteristics and to tai-
lor the sentence to those individual circumstances. See gener-
ally Concepcion v. United States, 142 S. Ct. —, — (2022).
That’s what Judge McDade was doing in this difficult case,
trying to reach Shaw in any way he could: drawing on his
own history, drawing on concepts of faith, ethics, and sin, and
explaining in almost parental terms why the sentence needed
to be more severe than the time-served slap on the wrist that
Shaw sought. I view this remand as compelled by § 3582(a)
and Tapia, but unfortunate and otherwise unnecessary.