                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 17-2846
                  _____________

         UNITED STATES OF AMERICA


                         v.


         JANET SONJA SCHONEWOLF,
                           Appellant
                _____________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
      (District Court No.: 2-13-cr-00037-001)
     District Judge: Honorable John R. Padova
                  ______________

               Argued April 19, 2018

Before: GREENAWAY, JR., RENDELL, and FUENTES,
                Circuit Judges

          (Opinion Filed: October 4, 2018)
Leigh M. Skipper
  Assistant Federal Defender
Brett G. Sweitzer
  Assistant Federal Defender
  Chief of Appeals
Robert Epstein
  Assistant Federal Defender
Jacob Schuman                [ARGUED]
  Research and Writing Attorney
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
        Counsel for Appellant

William M. McSwain
 United States Attorney
Robert A. Zauzmer           [ARGUED]
 Assistant United States Attorney
 Chief of Appeals
Sarah L. Grieb
 Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

                     ________________

                OPINION OF THE COURT
                   ________________




                              2
FUENTES, Circuit Judge.

       We are asked to determine whether referencing a
criminal defendant’s need for drug rehabilitation is appropriate
when imposing a prison sentence following the revocation of
supervised release. Appellant is Janet Sonja Schonewolf, a
repeat offender struggling with heroin dependency. Following
her most recent arrest, the District Court revoked Schonewolf’s
supervised release and sentenced her to 40 months’
imprisonment, an upward variance over the Sentencing
Guidelines range. Schonewolf claims that the District Court
imposed this sentence based on her need for drug
rehabilitation, in violation of the Sentencing Reform Act (the
“Act”)1 and the Supreme Court’s ruling in Tapia v. United
States.2 We disagree, and hold that her sentence did not violate
the Act and Tapia. We will therefore affirm.

I.       Factual Background

       The facts of this case have become far too common.
Schonewolf has spent much of her life in the throes of
addiction. Both of her parents were addicts, foreshadowing her
own life. Her father was a methamphetamine user who
encouraged her to sell diet pills in school on his behalf. Her
mother was a food addict who weighed over 500 pounds at the
time of her death. At age 14 Schonewolf began smoking
marijuana, and by age 15 she left her home and dropped out of
high school. Shortly thereafter, Schonewolf developed a
drinking problem and attempted suicide several times before
being diagnosed with bipolar disorder. Schonewolf also

1
    18 U.S.C. § 3551 et seq.
2
    564 U.S. 319 (2011).




                               3
admits having used crack cocaine and methamphetamines
when she was younger.

       Schonewolf’s use of opiates began with the use of
prescription painkillers. Specifically, she was prescribed
Percocet for pain stemming from back injuries sustained in a
car accident, followed by a fentanyl patch. Schonewolf
became addicted to opiates and, following her doctor’s
retirement, began using heroin to satisfy her addiction.
       A.     Schonewolf’s Prior Offense

       Predictably, all of this led to trouble with the law. In
2010, Schonewolf was pulled over in Utah and admitted to
having approximately twelve pounds of methamphetamine in
the trunk of her car. Evidently, her father had given her
$88,000 and requested she buy drugs in Nevada and bring them
to him in Pennsylvania. Ultimately, Schonewolf pled guilty to
one count of possessing methamphetamine with intent to
distribute. The District Court granted a downward variance
from the Sentencing Guidelines and sentenced Schonewolf to
time served, followed by 60 months’ supervised release.

       B.     Schonewolf’s Instant Offense

      After several years of progress on supervised release,
Schonewolf suffered a relapse.3 She began using heroin again
3
  Relapse is a common occurrence in the process of drug
addiction recovery, leading some to argue it is best understood
as a chronic illness, which may require continuing care
throughout the sufferer’s life. See A. Thomas McLellan et al.,
Drug Dependence, a Chronic Mental Illness: Implications for
Treatment, Insurance, and Outcomes Evaluation, 284 JAMA
1689 (2000).




                              4
and was caught attempting to purchase the drug. This resulted
in two Pennsylvania misdemeanor charges. Additionally,
these charges violated the terms of Schonewolf’s supervised
release.

        Schonewolf’s probation officer filed a Violation of
Supervised Release petition in the District Court. One month
later, however, the officer withdrew the petition, noting that
Schonewolf was involved in a detox program. Unfortunately,
Schonewolf suffered an overdose and left treatment. As a
result, her probation officer refiled the petition and the District
Court convened a revocation hearing. At that hearing, the
Government indicated that Schonewolf was again in treatment
and making progress, so the District Court adjourned for a
month. When the District Court reconvened, it sentenced
Schonewolf to one day in prison, followed by her pre-existing
term of supervised release.

        In October 2016, Schonewolf was found to be selling
heroin out of her house. She admitted to have been doing so
for six to seven months. Schonewolf pled guilty to several drug
charges and was sentenced to two to four years’ imprisonment
by the state court. She is currently serving that sentence.
Based on this conduct, Schonewolf’s probation officer also
filed a new Violation of Supervised Release.

II.    Procedural History

      The District Court convened a revocation hearing under
18 U.S.C. § 3583(e)(3) regarding Schonewolf’s violation of a




                                5
term of supervised release on August 15, 2017.4 The
Guidelines range for Schonewolf’s sentence was 24 to 30
months’ imprisonment. The Government advocated for an
upward variance to 48 months, justifying this request by the
fact that Schonewolf had previously benefitted from a lesser
sentence because she had promised to stop using drugs. The
Government also relied on the Guidelines, pointing out that
under Guideline § 7B1.4, application note 4, the Court was
empowered to depart upward because Schonewolf had

4
  While the Government argues that § 3583(g) is the operative
framework here because Schonewolf’s violation involved a
finding that she possessed a controlled substance, the record
indicates otherwise. Indeed, the District Court’s order
revoking Schonewolf’s supervised release states specifically
that the revocation is ordered “pursuant to 18 U.S.C. §
3583(e)(3).” JA3. In any event, even if the Government were
correct and § 3583(g) was the vehicle through which
Schonewolf’s supervised release was revoked, this is a
distinction without a difference as both require the same
consideration of the § 3553(a) factors in determining the
sentence to impose.

Discretionary revocation under § 3583(e) requires district
courts to consider the factors present in § 3553(a) in crafting a
sentence. United States v. Doe, 617 F.3d 766, 772 (3d Cir.
2010). Mandatory revocation under § 3583(g) “does not
expressly require consideration of the § 3553(a) factors,” but
similarly “does not prohibit the sentencing court from doing
so.” Id. However, in United States v. Thornhill, we held that
the § 3553(a) factors must be considered in imposing a
sentence under 18 U.S.C. § 3583(g). 759 F.3d 299, 309 (3d
Cir. 2014).




                               6
received a downward departure in 2012.            Schonewolf
requested a 24-month sentence, based on, among other factors:
(1) her long history of struggles with bipolar disorder and
substance abuse; (2) the fact that her sales were solely to
finance her own habit and did not involve violence; and (3) her
existing two to four year state sentence, which she asserted
would give her time to complete drug treatment.

       The District Court ultimately sentenced Schonewolf to
40 months’ imprisonment to run consecutively to her state
sentence. This was 10 months above the top of the Guidelines
range. To justify this sentence, the District Court said:

              “I mean, we—you were granted a
       significant downward departure [at] sentencing.
       You were granted a significant mercy at the time
       of your first violation and nonetheless, I mean,
       your behavior has just grown more and more
       severe, worse.

              And I—you know, I have reached a
       conclusion that you are a significant danger to
       yourself, you’re a significant danger to those
       who have lived with you, and you’re a significant
       danger to society. And the last step we have in
       order to give you a fighting chance to recover
       from whatever addictions you have is to—is to
       limit your contact with the outside world for a
       significant period of time.

              As I said we had had great hope for you.
       I am thoroughly convinced that [the] United
       States has done—has gone way out in order to do




                              7
       what it could to help you for a significant period
       of time, but that hasn’t worked. Now, I have
       decided to grant an upward variance. And the
       basis for the upward variance is Section 7B 1.4.
       And we take special note of Application Note
       number 4 which points out essentially what the
       government has pointed out as a basis for an
       upward variance from the range here.”5

Schonewolf now appeals her sentence.6

III.   Standard of Review

       On appeal, Schonewolf argues that the District Court
violated the Act by sentencing her to a term of imprisonment
to promote her rehabilitation. She did not raise this argument
as an objection at her sentencing, and thus it is not preserved
for appeal.7 We review unpreserved claims for plain error.8 To
5
  Transcript of Violation of Supervised Release Hearing as to
Janet Sonja Schonewolf held on Aug. 15, 2017 at 21, United
States v. Schonewolf, No. 2:13-cr-00037-JP-1 (E.D. Pa. Sept.
22, 2017), ECF No. 27.
6
  The District Court had jurisdiction over this case under 18
U.S.C. §§ 3231 and 3583. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
7
  United States v. Miller, 833 F.3d 274, 283 (3d Cir. 2016) (“A
party may preserve a claim of error by informing the court—
when the court ruling or order is made or sought—of the action
the party wishes the court to take, or the party’s objection to
the court’s action and the grounds for that objection.” (quoting
Fed. R. Crim. P. 51(b))).
8
  United States v. Berry, 553 F.3d 273, 279 (3d Cir. 2009)
(citing Fed. R. Crim. P. 52(b)).




                               8
be entitled to relief under a plain error standard, “a defendant
must show: (1) error, (2) that is plain or obvious, and (3) that
affects a defendant’s substantial rights.”9 When those three
prongs are met, this Court may exercise its discretion to grant
relief, but only if “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”10

IV.    Schonewolf’s Sentencing Reform Act Claim

       In 1984, Congress passed the Act as part of the
Comprehensive Crime Control Act.11 In the Act, Congress
admonishes courts to, in considering the length of a prison
sentence, “consider the factors set forth in [18 U.S.C.] section
3553(a) to the extent that they are applicable, recognizing that
imprisonment is not an appropriate means of promoting
correction and rehabilitation.”12         The Supreme Court
interpreted this section of the Act in Tapia v. United States, and
concluded that “§ 3582(a) tells courts that they should
acknowledge that imprisonment is not suitable for the purpose
of promoting rehabilitation.”13 The Court thus held that “the
Sentencing Reform Act precludes federal courts from




9
  Id. (quoting United States v. Goodson, 544 F.3d 529, 539 (3d
Cir. 2008)); see also Johnson v. United States, 520 U.S. 461,
466–67 (1997) (citing United States v. Olano, 507 U.S. 725,
732 (1993)).
10
   Johnson, 520 U.S. at 467 (quotations omitted).
11
   United States v. Gozlon-Peretz, 894 F.2d 1402, 1403 n.2 (3d
Cir. 1990).
12
   18 U.S.C. § 3582(a) (emphasis added).
13
   564 U.S. at 327.




                                9
imposing or lengthening a prison term in order to promote a
criminal defendant’s rehabilitation.”14

        Prior to Tapia, this Court decided United States v. Doe,
where we held that it did not violate the Act to “set[] the
duration of [a defendant’s] post-revocation incarceration
based, in part, on his need for drug rehabilitation.”15 In so
doing, we explained that “the plain language and operation of
the statute governing post-revocation sentencing, 18 U.S.C. §§
3583(e) and (g), permits a district court to consider medical and
rehabilitative needs in imposing a term of post-revocation
imprisonment[.]”16

       Thus, there appears to be a facial distinction between
Tapia, decided in the context of a post-conviction sentence,
and this case, where Schonewolf’s sentence was imposed post-
violation, the same procedural posture present in Doe. This
presents the question of whether Tapia effectively overruled
Doe and applies even in cases where a sentence is imposed
post-violation under § 3583.17

14
   Id. at 321.
15
   617 F.3d at 774.
16
   Id. at 770.
17
   The parties agree that Tapia has abrogated the rule in Doe.
Nevertheless, because the legality of the District Court’s
consideration of rehabilitation in crafting Schonewolf’s
sentence is “properly before the court,” we are not bound by
“the particular legal theories advanced by the parties,” but may
“identify and apply the proper construction of governing law.”
Kamen v. Kemper Fin. Servs., 500 U.S. 90, 99 (1991). Thus,
we now consider the relationship between Tapia and Doe to
determine which governs.




                               10
       A.     Interplay of Tapia and Doe

       Even before Tapia, this Circuit did not permit post-
conviction sentences to be tailored to rehabilitation. In United
States v. Manzella, we held that “[i]t is the policy of the United
States Congress, clearly expressed in law, that defendants not
be sent to prison or held there for a specific length of time for
the sole purpose of rehabilitation.”18 Our review of the record
convinced us that “the circumstances of the sentencing hearing
clearly indicate that the District Court sentenced [defendant] to
a prison term of 30 months for rehabilitative purposes” because
the sentence was designed to give sufficient time for the
defendant to complete the Bureau of Prison’s 500-hour drug
treatment program.19 Thus, we concluded that the District
Court erred in violating § 3582(a).20

       After Manzella, we decided Doe. As mentioned, Doe
held that it did not violate the Act to set a post-revocation
sentence based, in part, on a defendant’s need for
rehabilitation.21 We reconciled this with the rule in Manzella
by noting “certain pivotal distinctions between the statutes
governing post-conviction sentencing and those governing
post-revocation sentencing.”22 Specifically, post-conviction
imprisonment is limited by both §§ 3553(a)(2)(D) and
3582(a).23 The former provides that the District Court should

18
   475 F.3d 152, 161 (3d Cir. 2007).
19
   Id.
20
   Id. at 153, 161.
21
   Doe, 617 F.3d at 770.
22
   Id.
23
   See id.




                               11
consider “the need . . . to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.”24 The
latter adds the requirement that a sentence to a term of
imprisonment must be crafted “recognizing that imprisonment
is not an appropriate means of promoting correction and
rehabilitation.”25 Read together, post-conviction sentences
must be crafted to consider a need for medical care and
correctional treatment, while recognizing that rehabilitation is
not a justification for a prison sentence.26 By contrast, we said
that post-revocation sentences under § 3583 (e) and (g) were
not subject to § 3582(a).27 Absent this requirement, we held
that a District Court may consider rehabilitation in crafting a
post-revocation prison sentence.28

        Then came Tapia. In Tapia, the Supreme Court firmly
held that “[s]ection 3582(a) precludes sentencing courts from
imposing or lengthening a prison term to promote an offender’s
rehabilitation.”29 The Court articulated multiple reasons for
this. It first noted the plain text of § 3582(a) provides “clarity”
as to the operative rule.30 “Under standard rules of grammar,
§ 3582(a) says: A sentencing judge shall recognize that
imprisonment is not appropriate to promote rehabilitation . . .

24
   Id. (quoting § 3553(a)(2)(D)).
25
   18 U.S.C. § 3582(a).
26
   See Doe, 617 F.3d at 770–71.
27
   Id. at 771. Consideration of the 18 U.S.C. § 3553(a) factors
was allowed, but not required until Thornhill was decided
four years later. See supra note 4.
28
   Doe, 617 F.3d at 774.
29
   564 U.S. at 332.
30
   Id. at 326.




                                12
when determining both whether to imprison an offender and
what length of term to give him.”31 Second, the Court found
the “statutory silence” as to any provisions giving courts the
authority to ensure defendants do participate in rehabilitative
programs “[e]qually illuminating.”32 This is because, where
Congress intended rehabilitation to be an aim of the sentence—
i.e. probation or supervised release—it gave courts the
authority to order a defendant’s participation in rehabilitative
programs.33 When it comes to prison sentences, however,
“courts do not have this authority.”34 This “indicates that
Congress did not intend that courts consider offenders’
rehabilitative needs when imposing prison sentences.”35

       Finally, legislative history confirms Congress’ intent
that rehabilitation not be considered in sentencing a defendant
to prison.36 The Senate Report regarding the Act noted that
“almost everyone involved in the criminal justice system now
doubts that rehabilitation can be induced reliably in a prison
setting.”37 It is for this reason, the Report states, that 18 U.S.C.
§ 3582(a) “specifies, in light of current knowledge, that the
judge should recognize . . . that imprisonment is not an
appropriate means of promoting correction and
rehabilitation.”38


31
   Id. at 328 (emphasis in original).
32
   Id. at 330.
33
   Id.
34
   Id. at 331.
35
   Id.
36
   Id. at 331–32.
37
   S. REP. NO. 98-225, at 38 (1983).
38
   Id., at 119 (internal quotations omitted).




                                13
       This brings us to the issue at hand, whether Tapia has
any import here, where Schonewolf was sentenced to a term of
incarceration following the revocation of her supervised
release. We now join our sister circuits in holding that Tapia
applies to post-revocation prison sentences.39 In doing so, we

39
   United States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011)
(Souter, J.) (“We feel bound to conclude that rehabilitation
concerns must be treated as out of place at a resentencing to
prison, just as ordering commitment initially.”); United States
v. Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013) (“Tapia applies
upon revocation of supervised release, as well as at the time of
initial sentencing.”); United States v. Bennett, 698 F.3d 194,
198 (4th Cir. 2012) (“We thus hold that Tapia applies to the
revocation context too.”); United States v. Garza, 706 F.3d
655, 657 (5th Cir. 2013) (“The Government concedes that
Tapia applies to revocation sentences, and we agree.”); United
States v. Deen, 706 F.3d 760, 766 (6th Cir. 2013) (“[I]t appears
inescapable that Tapia applies to revocation sentencing under
§ 3583(e)(3), just as it does to initial sentencing after
conviction under § 3582(a).”); United States v. Taylor, 679
F.3d 1005, 1006 (8th Cir. 2012) (“Tapia applies upon
revocation of supervised release as well as at an initial
sentencing.”); United States v. Grant, 664 F.3d 276, 280 (9th
Cir. 2011) (“We conclude that Tapia applies to imprisonment
regardless of whether imprisonment is imposed at initial
sentencing or on revocation.”); United States v. Mendiola, 696
F.3d 1033, 1043 (10th Cir. 2012) (Gorsuch, J., concurring)
(“[I]t follows ineluctably (plainly) that § 3582(a) prohibits a
court from relying on rehabilitation considerations any time it
chooses to send someone to . . . prison, whether as part of an
initial sentence (as in Tapia) or as part of a sentence issued after
a probation revocation (as in our case).”); United States v.




                                14
recognize that Tapia effectively overruled our decision in
Doe.40 Put succinctly, post-revocation sentences under § 3583
(e) and (g) are subject to the requirements of § 3582(a) of the
Act. Our rationale for this is simple: the reasons the Court gave
for its holding in Tapia apply with equal force to post-
revocation prison sentences.

       First, the plain text of § 3582(a) indicates that it should
also apply to post-revocation prison sentences. The statute
refers only to the sentence of “imprisonment,” not the



Vandergrift, 754 F.3d 1303, 1309 (11th Cir. 2014) (“This court
has not decided whether Tapia applies in the context of
resentencing upon the revocation of supervised release. But
we agree with our sister circuits and today hold that it does.”).
40
   While Doe, as a published decision of a prior panel of this
Court, would normally be beyond our authority to overrule, see
3d Cir. Internal Operating P. 9.1, in light of intervening
Supreme Court case law, we may reevaluate our precedent.
United States v. Berrios, 676 F.3d 118, 126 n.1 (3d Cir. 2012)
(citing Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.
1996)). Nor are we alone in being the only circuit to recognize
that Tapia has effectively overruled prior circuit-level
precedent permitting the consideration of rehabilitation in
crafting a post-revocation prison sentence. See Mendiola, 696
F.3d at 1042 (“Consequently, we conclude that Tapia has
effectively invalidated the majority’s decision in Tsosie.”);
Vandergrift, 754 F.3d at 1309 (“[W]e recognize that Tapia
abrogates our holding in United States v. Brown, where we
stated that ‘a court may consider a defendant’s rehabilitative
needs when imposing a specific incarcerative term following
revocation of supervised release.’” (citation omitted)).




                               15
procedural posture by which such a sentence is imposed.41
Intuitively this makes sense. If a sentence of incarceration in
prison is “not an appropriate means of promoting correction
and rehabilitation,” why should it matter whether a defendant
finds herself there immediately following her conviction or
after the revocation of a term of supervised release?42 The
obvious answer is it does not.          The realities of her
confinement—and its hostility towards her rehabilitation—are
identical.

       Second, Congress has not authorized courts to require
participation in rehabilitative programs in prison. Once
sentenced to a prison term, courts lack any control over what,
if any, treatment programs a defendant may participate in—
“decisionmaking authority rests with the [Bureau of
Prisons].”43 This is true whether the defendant is sentenced
post-conviction or post-revocation.44

        Extending Tapia to include post-revocation sentences is
also consistent with the Congressional intent of § 3582(a).
“[D]ecades of experience with indeterminate sentencing,
resulting in the release of many inmates after they completed
correction programs, had left Congress skeptical that
‘rehabilitation can be induced reliably in a prison setting.’”45
Once again, this prison setting is identical whether a defendant
is sentenced to a term of imprisonment following her

41
   18 U.S.C. § 3582(a).
42
   See id.
43
   Tapia, 564 U.S. at 331.
44
   See 18 U.S.C. § 3621(e).
45
   Tapia, 564 U.S. at 331-32 (quoting S. REP. NO. 98-225, at
23).




                              16
conviction or post-revocation. Thus, Congress’ rationale
applies with equal force to post-revocation prison sentences as
it does to post-conviction prison sentences.

     B. Standard of Review for Potential Violations of Tapia

       Having determined that Tapia does apply to prison
sentences imposed post-revocation, we must now consider the
standard to be applied in considering whether a post-revocation
sentence violates Tapia by impermissibly contemplating
rehabilitation. While there is apparent unanimity as to Tapia’s
application to post-revocation sentences, a circuit split has
emerged regarding the standard to be applied in considering
whether there has been a Tapia violation.

       On one hand, the Seventh, Ninth, Tenth, and Eleventh
Circuits impose a stringent standard by which seemingly any
consideration of rehabilitation is impermissible under Tapia.46

46
   United States v. Spann, 757 F.3d 674, 675 (7th Cir. 2014)
(“[I]n basing [defendant’s] sentence even in part on that
consideration [learning lawful job skills] [the District Court]
was violating the rule of Tapia . . . .” (emphasis added)); United
States v. Joseph, 716 F.3d 1273, 1281 n.10 (9th Cir. 2013)
(dictum) (“The district court’s Statement of Reasons seems to
reflect that rehabilitation may have been a factor in the court’s
sentencing decision.” (emphasis added)); United States v.
Thornton, 846 F.3d 1110, 1116 (10th Cir. 2017) (applying a
rule where Tapia is violated if rehabilitation is one of many
considered factors because “[a] rule requiring reversal only
when rehabilitation is the sole motivation would not make
sense” because “there will almost always be some valid
reasons advanced by the district court for imposing the




                               17
In the view of these courts, Tapia is violated wherever
rehabilitation is given any weight in the decision to impose or
lengthen a prison sentence.47 This, however, seems to leave
open the possibility that a District Court may make reference
to rehabilitation and still satisfy Tapia in certain circumstances
where it is clear that the discussion of rehabilitation carried
zero weight, i.e., the sentence was not based, even in de
minimis part, on a desire to foster rehabilitation.

       On the other hand, the First, Second, Fourth, Fifth,
Sixth, and Eighth Circuits have articulated a narrower
standard, requiring that rehabilitation must have been the
determining factor in a prison sentence before finding a Tapia
violation.48 Under this standard, rehabilitation may be a factor


sentence issued”); Vandergrift, 754 F.3d at 1310 [11th Cir.]
(“[W]e hold that Tapia error occurs where the district court
considers rehabilitation when crafting a sentence of
imprisonment.”).
47
   See, e.g., Vandergrift, 754 F.3d at 1310 (Tapia error occurs
in considering rehabilitation as one of many factors in selecting
a prison sentence); Thornton, 846 F.3d at 1116 (same).
48
   See United States v. Del Valle-Rodrigues, 761 F.3d 171, 174
(1st Cir. 2014) (“In the absence of a causal relationship, courts
have hesitated to find Tapia error. Where, however, the record
indicates that rehabilitative concerns were the driving force
behind, or a dominant factor in, the length of a sentence, courts
have found Tapia error.”); Lifshitz, 714 F.3d at 150 [2d Cir.]
(“The sentencing colloquy demonstrates that the district
court’s primary considerations in sentencing [defendant] were
‘promoting respect for the law and protecting the public from
further crimes of this defendant.’ While the district court also
considered [defendant’s] need for medical care, there is no




                               18
granted some weight in selecting a prison sentence, so long as
it is not the primary or dominant consideration.49

      On appeal, Schonewolf argues that the former standard
should apply. Alternatively, she asserts that the standard does
not matter because under either standard the District Court


indication in the record that the district court based the length
of [defendant’s] sentence on his need for treatment.” (emphasis
added)); Bennett, 698 F.3d at 201 [4th Cir.] (refusing to find
error under Tapia where “[defendant’s] rehabilitative needs
clearly constituted only a minor fragment of the court’s
reasoning.” (emphasis added)); Garza, 706 F.3d at 660 [5th
Cir.] (“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.”); Deen, 706 F.3d at 768 [6th Cir.] (“Trouble
[under Tapia] only comes when a court imposes or lengthens a
sentence ‘to enable an offender to complete a treatment
program or otherwise to promote rehabilitation’ inside a
prison’s walls.”) (quoting Tapia, 564 U.S. at 335); United
States v. Replogle, 678 F.3d 940, 943 (8th Cir. 2012) (“We are
not convinced that the court’s fleeting reference to whether
[defendant] might be ‘treated better somewhere else’
demonstrates an obvious violation of § 3582(a) and the holding
of Tapia.”).
49
   See, e.g., Lifshitz, 714 F.3d at 150 (finding no Tapia error
where rehabilitation was not a primary factor in sentence
selection); Garza, 706 F.3d at 660 (finding no Tapia error
where rehabilitation was not the dominant factor in sentence
selection).




                               19
erred. We think the second, narrower standard ought apply to
post-revocation sentences, just as we have applied it to post-
conviction sentences.50 It is our view that this approach tracks
Tapia more closely.

       In reversing the judgment affirming the sentence in
Tapia, the Supreme Court determined that the District Court
erred in “indicat[ing] that [Defendant] should serve a prison
term long enough to qualify for and complete [the Bureau of
Prison’s Residential Drug Abuse Program].”51 This is the
paradigmatic example of how a District Court’s sentence may
violate the Act—when it is imposed or lengthened to provide
the opportunity to further a rehabilitative aim. Importantly, the
opinion specifically left open the door for a District Court to
“discuss[] the opportunities for rehabilitation within prison or
the benefits of specific treatment or training programs.”52

       Thus, we think the better reading of Tapia would only
find error where the record suggests “that the court may have
calculated the length of [a defendant’s] sentence to ensure that
she receive[s] certain rehabilitative services.”53 We have
already held that Tapia cautions that “courts cannot impose or
lengthen a prison term merely to promote an offender’s


50
   See United States v. Zabielski, 711 F.3d 381, 392 (3d Cir.
2013) (declining to find Tapia violation where statements
regarding rehabilitation did “not show that the District Court
imposed a longer sentence to ensure that [defendant] received
the treatment that he needed”).
51
   Tapia, 564 U.S. at 321–22
52
   Id. at 334.
53
   Id. at 334–35.




                               20
rehabilitation.”54 “This assuredly does not mean, however, that
judges are prohibited from mentioning rehabilitation during the
sentencing hearing.”55 A lower threshold would run afoul
Tapia and risk a chilling effect on district courts “discussing
the opportunities for rehabilitation within prison,” a subject
that “a court properly may address.”56

     C. Application to Schonewolf

        With the proper framework in mind, we must now
consider whether the District Court impermissibly imposed or
lengthened Schonewolf’s sentence for rehabilitative ends in
violation of the Act and Tapia. Schonewolf points to numerous
statements made by the District Court that she alleges evidence
that it impermissibly relied on rehabilitation in crafting its
sentence. She asserts the District Court’s comments were
addiction-centric and “framed the choice [of sentence] in terms
of treating her addiction.”57 Moreover, Schonewolf cites
numerous examples of the District Court expressing concern
for Schonewolf’s behavior being harmful to herself.58

54
   Zabielski, 711 F.3d at 391 (emphasis added); see also Del
Valle-Rodrigues, 761 F.3d at 175 (rehabilitation must be
“dominant factor” for Tapia violation to be found); Garza, 706
F.3d at 660 (same); Lifshitz, 714 F.3d at 150 (finding no Tapia
violation where rehabilitation was not a “primary
consideration[]” in sentence);
55
   Zabielski, 711 F.3d at 391.
56
   Tapia, 564 U.S. at 334.
57
   Appellant Br. at 22.
58
   Specifically, Schonewolf cites the following: (1) in soliciting
comments at sentencing from the Probation Office, the District
Court asked “What’s the best for [Schonewolf] under these




                               21
Schonewolf draws particular attention to the District Court’s
comment that “the last step we have in order to give you a
fighting chance to recover from whatever addictions that you
have is to – is to limit your contact with the outside world for
a significant period of time.”59 She argues this is evidence that
the District Court was sentencing her in an effort to aid in her
rehabilitation from drug addiction.

       Despite Schonewolf’s arguments to the contrary, our
review of the record finds no Tapia error in the District Court’s
sentence. In viewing the record as a whole, it is clear that the
District Court’s decision to impose a prison sentence, and what
length of sentence to impose, were made independently of any
discussion of Schonewolf’s drug addiction and the potential for
sobriety.     Schonewolf’s sentence was not based on
rehabilitation but, instead, on past lenity. On this, the District
Court was explicit: “I have decided to grant an upward
variance. And the basis for the upward variance is Section 7B
1.4. And we take special note of Application Note number 4
which points out essentially what the government has pointed
out as a basis for an upward variance from the range here.”60


circumstances?,” Appellant Br. at 22; (2) the District Court
opined that Schonewolf needed “to be contained not only for
the benefit of society, but . . . for her own benefit,” id., and that
“not only is she a danger to society, she’s also a significant
danger to herself,” id.; (3) in addressing Schonewolf, the
District Court told her “I have reached a conclusion that you
are a significant danger to yourself, you’re a significant danger
to those who have lived with you, and you’re a significant
danger to society,” id.
59
   Id. at 22–23.
60
   Appellant Br. at 10.




                                 22
This is a reference to United States Sentencing Guidelines §
7B1.4, application note 4, which provides that “[w]here the
original sentence was the result of a downward departure . . .
an upward departure may be warranted.”61

        Moreover, while Schonewolf is certainly correct that
the District Court did make numerous references to her drug
addiction and its hope that she discontinue her drug use, she is
mistaken that this is error. Tapia itself is illustrative. There,
the Court found error because the District Court clearly tailored
the length of its sentence to allow the defendant to be in prison
for a sufficient amount of time to complete a specific drug
rehabilitation program.62 Indeed, the District Court said as
much, stating that one factor in the 51-month sentence was “so
she is in long enough to get the 500 Hour Drug Program.”63

       In contrast, in Zabielski, this Court declined to find a
sentence violated Tapia where the District Court said “one
reason why I think that incarceration at this point in time is
necessary is the fact that you don’t seem to be able to live up
to the conditions that you need to maintain in order to keep
yourself sober and on your medications.”64 This does not
violate Tapia because—while it assuredly discusses
rehabilitation—“it does not show that the District Court
imposed a longer sentence to ensure that [the defendant]
received the treatment that he needed.”65 Similarly, there is no

61
   U.S. Sentencing Guidelines Manual § 7B1.4, cmt. n.4 (U.S.
Sentencing Comm’n 2016).
62
   Tapia, 564 U.S. at 334–35.
63
   Id. at 322.
64
   722 F.3d at 391.
65
   Id.




                               23
indication that the District Court specifically tailored its
sentence length to any particular rehabilitation program, nor
that it imposed a longer sentence to ensure Schonewolf
received drug treatment.

       Accordingly, we hold that Schonewolf’s sentence did
not violate the Sentencing Reform Act or Tapia. Given that
Schonewolf’s sentence was not legally erroneous, she cannot
meet her burden of establishing plain error.

 V.    Conclusion

       For the reasons stated above, we will affirm the order of
the District Court.




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