                        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.”

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