United States v. Andre Martin , 445 F. App'x 692 ( 2011 )


Menu:
  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-5047
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ANDRE PAUL MARTIN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of Virginia, at Big Stone Gap.      James P. Jones,
    District Judge. (2:09-cr-00010-jpj-pms-1)
    Argued:   December 10, 2010                 Decided:   September 1, 2011
    Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
    Court of the United States, sitting by designation, TRAXLER,
    Chief Judge, and KEENAN, Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
    DEFENDER, Abingdon, Virginia, for Appellant.         Jennifer R.
    Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
    Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
    Public Defender, Roanoke, Virginia, for Appellant.     Timothy J.
    Heaphy, United States Attorney, Roanoke, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Andre    Paul     Martin      pleaded          guilty   to    a   single       count      of
    escape.       See 
    18 U.S.C. § 751
    (a).                    The district court varied
    upward from the advisory sentencing range of 15-21 months and
    sentenced Martin to 48 months’ imprisonment.                                Martin appeals,
    arguing that the district court improperly considered Martin’s
    rehabilitative        needs        when    determining          the         length    of        his
    sentence.     See 
    18 U.S.C. § 3582
    (a).                 We affirm.
    I.
    
    18 U.S.C. § 3582
    (a)           directs       district         courts       when
    “determining whether to impose a term of imprisonment” and when
    “determining      the       length”       of     any     term      of       imprisonment         to
    “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).                At the time of Martin’s
    sentencing,      this    court       had       not     addressed        §     3582(a)      in     a
    published     opinion,       and    the    circuits       that      had      considered         the
    statute were divided as to its scope.                           Compare, e.g., United
    States v. Duran, 
    37 F.3d 557
    , 561 (9th Cir. 1994) (concluding
    that § 3582(a) prohibits consideration of rehabilitative needs
    when deciding whether to impose a term of imprisonment, but does
    not   prohibit    consideration           of     rehabilitation         when     determining
    2
    the length of the sentence to be imposed), with, e.g., United
    States v. Manzella, 
    475 F.3d 152
    , 161 (3d Cir. 2007) (concluding
    that § 3582(a) prohibits consideration of rehabilitative needs
    when determining whether to impose a term of imprisonment and
    when determining the length of any term of imprisonment).
    The    Supreme       Court,       however,       recently         resolved       the
    uncertainty,    concluding         that    §     3582(a)   “precludes         sentencing
    courts from imposing or lengthening a prison term to promote an
    offender’s rehabilitation.”             Tapia v. United States, 
    131 S. Ct. 2382
    , 2391 (2011).           And as the Court’s opinion makes clear,
    “rehabilitation” as used in § 3582(a) encompasses educational
    and   vocational      training,      medical       care,     and      other    treatment
    programs.      See id. at 2391-92; see also 
    28 U.S.C. § 994
    (k)
    (directing     the     Sentencing         Commission       to      ensure     that     the
    Sentencing 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”).
    II.
    Shortly after Martin was arrested on the escape charge,
    he was diagnosed with a “serious and chronic medical condition
    that [will], in all likelihood, both shorten his life expectancy
    3
    and require life-long treatment.”                Brief of Appellant at 5. 1           On
    appeal,      Martin   argues      that    he     is    entitled     to    resentencing
    because the district court violated § 3582(a) by considering his
    medical       condition    and    need     for     treatment       when     determining
    Martin’s sentence.          The government, however, argues that the
    district      court   varied      upward       because     of    Martin’s     extensive
    criminal history, not his need for medical treatment.                            As we
    will       explain,   we   believe       the     record    establishes        that   the
    district court based its sentencing decision, at least in part,
    on Martin’s medical condition and need for treatment.
    The record reveals that Martin’s medical condition played a
    role in the sentencing arguments made by both parties.                               The
    government moved for an upward variance from Martin’s advisory
    sentencing       range,    arguing        that        Martin’s     criminal     history
    category       (Category    VI,    the     highest        category)       substantially
    under-represented the seriousness of his criminal history and
    the likelihood that he would commit additional crimes in the
    future.
    Counsel for Martin opposed that motion and urged the court
    to consider instead a downward variance.                         Counsel argued that
    1
    The specifics of Martin’s medical diagnosis appear in a
    sealed portion of the record, but counsel for Martin chose not
    to identify the condition in the brief.     Because the specific
    diagnosis is not relevant to our analysis, we follow counsel’s
    lead and refer to the diagnosis in general terms.
    4
    most of Martin’s criminal history points were from drug crimes
    and misdemeanor conduct that presented no danger to society, and
    that given Martin’s age (41 at the time of sentencing), Martin
    was    less     likely     to    re-offend        than     younger     Category-VI
    defendants.        Counsel      also     contended       that    Martin’s     medical
    condition gave Martin a newfound motivation for avoiding future
    criminal      activity,    explaining      that    the     diagnosis    had     “both
    sharpened     [Martin’s]     resolve     for   personal         rehabilitation   and
    provided him motivation to lead a sober and lawful life in order
    to facilitate the life-long treatment he will need to manage his
    medical condition.”        J.A. 16.
    At the sentencing hearing, the government argued that an
    above-Guidelines      sentence     was    warranted,       noting    that   Martin’s
    prior convictions were not merely for simple drug offenses, but
    also    included      robberies,         escapes,        and     drug-distribution
    offenses.       The   government       contended    that    Martin    was   a   “very
    likely candidate to be a recidivist,” J.A. 25, given his history
    of committing new offenses shortly after release from a prior
    offense.       As to the medical diagnosis, the government argued
    that the diagnosis was
    not a reason for a downward departure, but based on
    his criminal history and I think what appears to be a
    belief by Mr. Martin that almost all is lost, that he
    really has nothing to lose at this point, and that is
    one more reason for an upward departure as a means of
    deterrence, and not necessarily a deterrence to other
    individuals in his same position, but more so as a
    5
    deterrence for Mr. Martin that while he is locked up
    he will not be out committing any further offenses.
    J.A. 26-27.
    The     district     court        also       addressed        Martin’s    medical
    condition when announcing its sentence.                       After listing each of
    the   §     3553(a)    factors     on    the       record     and    summarizing   the
    information contained in the presentence report, the district
    court stated its view that the advisory sentencing range was
    inadequate.      The court then turned to the arguments made by
    Martin in support of a below-Guidelines sentence:
    It is first argued on Mr. Martin’s behalf that he has
    had a life change because he now knows that he has
    received a diagnosis for a life threatening disease;
    that in the words of the memorandum in his behalf will
    in all likelihood shorten his life expectancy and
    require long term treatment, and I accept that fact,
    of course.
    The problem is that based on Mr. Martin’s past
    history, and lack of responsibility in his own life,
    lack of any stabilizing work or life experience, I
    think it is unlikely that he will take the steps
    necessary to obtain needed medical treatment, and not
    only will that harm him, but based on his past history
    will also leave others at risk from his disease which
    can easily be passed on to others.
    J.A. 34.      The court went on to reject the argument that Martin’s
    age made him less likely to re-offend and the argument that a
    lengthy     sentence    would    not     be       effective    in   deterring    future
    crimes that might be committed by Martin or by others:
    [A] sentence above the guideline range is not likely,
    perhaps, to deter others . . . [and] I think unlikely
    to deter Mr. Martin.    Mr. Martin has been receiving
    criminal sentences throughout his adult life, and he
    6
    obviously has not been de[t]erred.  In fact, he just
    left a federal prison where he committed the escape
    charge, and the fact that he had been in prison,
    obviously, did not deter him.  He simply did what he
    wanted to do.
    . . . .
    But one of the important purposes of sentencing
    is to incapacitate the defendant, that is, to make
    sure the public is protected from him for a reasonable
    length of time based on all the circumstances of his
    crime.
    . . . .
    In essence, I believe that Mr. Martin’s prior
    history, and criminal history in particular, and all
    of his circumstances require a sentence above the
    guideline range.
    J.A. 35-36.
    According to the government, the oral statements made by
    the district court at sentencing unambiguously show that the
    sentencing decision was driven solely by the court’s concern
    about   Martin’s   extensive      criminal   history   and    the    likelihood
    that he would continue to commit crimes upon his release.                        We
    disagree.      While     the   statements    made   during    the    sentencing
    hearing show that the district court was concerned with Martin’s
    extensive     criminal    history,    the    statements      also    raise   the
    possibility    that    Martin’s    medical    condition      was    at   least   a
    factor in the court’s decision-making process.
    In any event, a review of the “Statement of Reasons” filed
    as part of the formal criminal judgment against Martin resolves
    any doubt about whether the district court considered Martin’s
    7
    medical      condition         when     selecting        the    length       of    Martin’s
    sentence.          In    the    Statement   of     Reasons,      the     district     court
    identified the following § 3553(a) factors as the basis for the
    sentence:      (1) “the nature and circumstances of the offense and
    the history and characteristics” of Martin; (2) the need “to
    protect      the    public      from     further    crimes”       that       Martin    might
    commit; and (3) the need to provide Martin with “educational or
    vocational         training,      medical        care,     or     other       correctional
    treatment     in    the    most       effective    manner.”           J.A.   75.      As   an
    explanation         of    the     facts     justifying          the     above-Guidelines
    sentence, the court stated that “[t]he defendant’s criminal and
    social history require that he be incapacitated by confinement
    in   order    to    protect      the    public     and    provide      him    with    needed
    medical treatment.”              Id. (emphasis added).                In our view, this
    explanation makes it clear that the district court in fact did
    consider Martin’s medical condition and need for treatment when
    determining the length of sentence to be imposed. 2
    2
    Relying on the well-established general “rule that where a
    conflict exists between an orally pronounced sentence and the
    written judgment, the oral sentence will control,” United States
    v. Osborne, 
    345 F.3d 281
    , 283 n.1 (4th Cir. 2003), the
    government   argues  that   we  should   disregard   the  written
    explanation as inconsistent with the district court’s oral
    explanation of the basis for its sentence.     We disagree.   The
    rule is typically applied when there are questions about the
    sentence itself (e.g., the length of the sentence, the terms of
    supervised release) rather than about the reasoning underlying
    the court’s decision to impose a particular sentence.     Because
    (Continued)
    8
    Although the district court when sentencing Martin did not
    have the benefit of the Supreme Court’s decision in Tapia, it is
    now clear that the district court erred by considering Martin’s
    medical      needs    when      selecting      the    appropriate      sentence.      The
    question,       then,     is     whether      the    court’s    error     requires    re-
    sentencing.
    A.
    To determine whether the Tapia error requires resentencing,
    we    must    first     determine      the    appropriate       standard      of   review.
    This court generally reviews preserved sentencing errors for an
    abuse of discretion, reversing only if an error is not harmless.
    Errors       raised     for     the   first    time     on     appeal,    however,    are
    reviewed only for plain error.                       See, e.g., United States v.
    Lynn, 
    592 F.3d 572
    , 575 (4th Cir. 2010).                       In this case, counsel
    for    Martin     did     not     mention     §     3582(a)    prior     to   or   during
    district courts are statutorily required to provide written
    explanations of non-Guidelines sentences, see 
    18 U.S.C. § 3553
    (c)(2), it is not obvious to us that the rule should be
    applied in this case in the manner suggested by the government.
    In any event, the general rule as described in Osborne applies
    when the oral pronouncement is unambiguous and in conflict with
    the written judgment.  See Osborne, 
    345 F.3d 281
    , 283 n.1.   As
    discussed above, the district court’s oral statements suggest
    that the court did consider Martin’s medical condition when
    imposing sentence, and the written explanation provided by the
    court therefore is not inconsistent with the court’s oral
    statements.
    9
    sentencing or otherwise suggest to the district court that it
    was improper to consider Martin’s health issues when imposing
    sentence,        nor     did     counsel        object        after    the     sentence       was
    announced or after reviewing the formal judgment that included
    the     district        court’s      Statement         of      Reasons       explaining       the
    sentence.        Notwithstanding this failure to explicitly raise §
    3582(a) before the district court, Martin, relying on United
    States    v.     Lynn,        contends     that      he       preserved      his     sentencing
    objection      by      arguing      for    a    within-Guidelines             sentence.        We
    disagree.
    In Lynn, we held that a defendant preserves an objection to
    the    court’s      consideration          of    the      §    3553(a)      factors     or    its
    explanation of the sentence by arguing “for a sentence different
    than the one ultimately imposed.”                         Lynn, 
    592 F.3d at 578
    .               We
    rejected the government’s contention that such a challenge could
    be    preserved        only    by   an     objection          made    after    sentence       was
    imposed, explaining that “[b]y drawing arguments from § 3553 for
    a     sentence      different       than       the     one      ultimately         imposed,    an
    aggrieved party sufficiently alerts the district court of its
    responsibility           to      render         an        individualized            explanation
    addressing those arguments, and thus preserves its claim.”                                    Id.
    Given the differences between the claim raised in this case and
    those raised in Lynn, we do not believe the manner of error
    preservation           found     sufficient          in       Lynn    can     be    viewed     as
    10
    sufficient in this case, because there was nothing in Martin’s §
    3553(a)-based        arguments      about      the   appropriate            sentence        that
    would have alerted the district court to Martin’s claim that §
    3582(a) precluded any consideration of his medical condition.
    See United States v. Hargrove, 
    625 F.3d 170
    , 184 (4th Cir. 2010)
    (applying plain-error review to claim that district court when
    imposing sentence improperly considered defendant’s exercise of
    his right to trial:           “This claim of error was not addressed at
    all   in    Hargrove’s       earlier        arguments         in    favor     of    a    below-
    Guidelines sentence.           It was an alleged error that arose during
    the court’s statements explaining the basis for the sentence it
    imposed.        Hargrove   failed      to   object       to    it    at   the      time,    thus
    denying     the      district       court      the       opportunity          to        consider
    Hargrove’s        argument      and     correct          the        purported       error.”).
    Accordingly, we conclude that Martin’s challenge to his sentence
    must be reviewed for plain error only.
    B.
    Under       plain-error     review,         Martin       bears      the      burden     of
    establishing that the district court erred, that the error was
    plain, and that the error affected Martin’s substantial rights.
    See United States v. Olano, 
    507 U.S. 725
    , 734 (1993); United
    States     v.    Massenburg,     
    564 F.3d 337
    ,    342-43       (4th     Cir.     2009).
    Even if Martin makes the required showing, “we retain discretion
    11
    to deny relief.”            United States v. Robinson, 
    627 F.3d 941
    , 954
    (4th Cir. 2010).           “[P]lain errors should only be corrected where
    not doing so would result in a miscarriage of justice, or would
    otherwise    seriously           affect    the     fairness,    integrity        or   public
    reputation of judicial proceedings.”                        
    Id.
     (citation, internal
    quotation marks, and alteration omitted).
    As we have noted, a Tapia error occurred, and we assume,
    without deciding, that the error was plain.                          Nonetheless, Martin
    cannot     show     that     the     Tapia     error       affected     his    substantial
    rights.
    As a general rule, an error affects substantial rights if
    the error was prejudicial, which “means that there must be a
    reasonable probability that the error affected the outcome of
    the [proceeding].”               United States v. Marcus, 
    130 S. Ct. 2159
    ,
    2164 (2010); accord United States v. McClung, 
    483 F.3d 273
    , 276
    (4th Cir. 2007).           To satisfy this requirement in the sentencing
    context, there must be a non-speculative basis in the record for
    concluding        that     the     defendant       would    have      received    a   lower
    sentence    had     the     error    not     occurred.         See    United     States   v.
    Angle, 
    254 F.3d 514
    , 518 (4th Cir. 2001) (en banc) (explaining
    that   a   sentencing        error    affected       the     defendant’s       substantial
    rights if the sentence imposed “was longer than that to which
    [the defendant] would otherwise be subject”); United States v.
    White, 
    405 F.3d 208
    , 223 (4th Cir. 2005) (explaining that error
    12
    in treating the Guidelines as mandatory affects a defendant’s
    substantial rights only if the record reveals a “nonspeculative
    basis for concluding that the treatment of the guidelines as
    mandatory        affected     the     district       court’s      selection       of    the
    sentence        imposed”     (internal       quotation      marks    and        alteration
    omitted)).
    As previously discussed, the district court’s decision to
    impose     an     above-Guidelines          sentence      was    based     on     Martin’s
    medical    condition        and     his    extensive     criminal     history.          The
    district court’s statements demonstrate that the court was quite
    concerned about Martin’s criminal history, and the court clearly
    shared    the     government’s       view     that    Martin’s      criminal      history
    score understated the severity of his criminal history and the
    likelihood       that   he    would        re-offend.       The     extensiveness           of
    Martin’s criminal record alone would have been sufficient to
    support the sentence imposed by the court, and there are no
    statements in the record suggesting that the court would have
    imposed a lesser sentence had it not considered Martin’s health
    issues.
    It    is,     of   course,      possible      that    the    court     might      have
    imposed a lower sentence, but that simple possibility is not
    enough    to     satisfy     the     defendant’s       burden     under     plain-error
    review.         Instead,     the    defendant     must     show    that    there       is    a
    reasonable       probability        that    the   error    “actually       resulted         in
    13
    prejudice    and    not    merely      possible     or    speculative          prejudice.”
    Robinson,    
    627 F.3d at 955
    ;    cf.      Marcus,     
    130 S. Ct. at 2164
    (finding “irreconcilable with our ‘plain error’ precedent” the
    Second Circuit’s practice of reversing a specific type of trial
    error     under     plain-error         review       whenever       there        is     “any
    possibility, no matter how unlikely” of prejudice).                               Because
    there is no concrete, record-based indication that Martin would
    have received a lower sentence, Martin has not demonstrated that
    his substantial rights were actually affected by the district
    court’s Tapia error.          See Jones v. United States, 
    527 U.S. 373
    ,
    394-95   (1999)     (“Where      the   effect      of    an   alleged     error        is    so
    uncertain, a defendant cannot meet his burden of showing that
    the error actually affected his substantial rights.”); White,
    
    405 F.3d at 223-24
     (concluding that defendant did not establish
    that sentencing error affected the district court’s selection of
    a    within-Guidelines      sentence         in   part   because      “[t]he     district
    court made no statements at sentencing indicating that it wished
    to    sentence     White   below       the    guideline       range      but    that        the
    guidelines prevented it from doing so”).
    14
    III.
    Accordingly, because Martin has not satisfied the stringent
    requirements   of   plain-error    review,   we   hereby   affirm   his
    sentence. 3
    AFFIRMED
    3
    Our conclusion that Martin has not demonstrated that his
    substantial rights were affected by any error in the district
    court’s   consideration  of   Martin’s  medical  condition  also
    forecloses his claims (raised for the first time on appeal) that
    the sentence violated the statutes governing quarantine, see 
    42 U.S.C. §§ 264-272
    , and amounted to punishment for his medical
    status in violation of the Eighth Amendment, see, e.g., Robinson
    v. California, 
    370 U.S. 660
    , 666-67 (1962).
    15