                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 17a0241p.06

                     UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 16-6415
        v.                                               │
                                                         │
                                                         │
 BILLY JOE RUCKER,                                       │
                                Defendant-Appellant.     │
                                                         ┘

                          Appeal from the United States District Court
                       for the Western District of Kentucky at Louisville.
                      No. 3:00-cr-00065-1—David J. Hale, District Judge.

                             Decided and Filed: October 27, 2017

                Before: COOK, KETHLEDGE, and DONALD, Circuit Judges.
                                 _________________

                                          COUNSEL

ON BRIEF: Frank W. Heft, Jr., Laura R. Wyrosdick, OFFICE OF THE FEDERAL
DEFENDER, Louisville, Kentucky, for Appellant. Candace G. Hill, UNITED STATES
ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

    KETHLEDGE, J., delivered the opinion of the court in which COOK, J., joined.
DONALD, J. (pp. 6–8), delivered a separate dissenting opinion.
                                     _________________

                                          OPINION
                                     _________________

       KETHLEDGE, Circuit Judge. Billy Joe Rucker argues that the district court considered a
forbidden factor—ironically, rehabilitation—when the court determined the length of his
sentence for violating the terms of his supervised release. The record indeed suggests that the
 No. 16-6415                         United States v. Rucker                               Page 2


district court considered that factor.   Hence we vacate Rucker’s sentence and remand for
resentencing.

       On November 8, 2013, Rucker finished an approximately 15-year term of imprisonment
and began a five-year term of supervised release. Rucker violated the terms of his supervised
release on four occasions in 2014 and 2016 when he tested positive for methamphetamine.
Those violations triggered the application of 18 U.S.C. § 3583(g), which required the court to
revoke Rucker’s supervised release and to sentence him to “a term of imprisonment” not to
exceed, in Rucker’s case, five years. (For violations that do not trigger the application of
§ 3583(g), the court’s decision whether to revoke the defendant’s supervised release is
discretionary. See 18 U.S.C. § 3583(e).) Before determining the length of Rucker’s new term of
imprisonment, however, the district court first permitted him to enter an inpatient addiction-
treatment program. Presumably if Rucker had successfully completed the program the court
would have imposed a short sentence for Rucker’s violations. About a month after Rucker
entered the program, however, he was ejected for arguing with another participant.

       The district court then held a revocation hearing to determine the length of Rucker’s
prison term for his violations. Rucker’s Guidelines range was 21 to 27 months’ imprisonment.
The court imposed a sentence of 24 months, which it explained at least in part on the ground that
Rucker could qualify for the Bureau of Prisons’ residential drug-abuse program only if his
sentence was at least 22 months in length.

       Rucker now challenges the substantive reasonableness of his sentence, which we review
for an abuse of discretion. United States v. Deen, 706 F.3d 760, 762 (6th Cir. 2013). A sentence
is substantively unreasonable if (among other things) the district court bases it on an
impermissible factor. United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013).

       Rucker argues the district court did that here. His argument is based upon 18 U.S.C.
§ 3582(a), which provides in relevant part:

       The [district] 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
 No. 16-6415                          United States v. Rucker                                Page 3


        are applicable, recognizing that imprisonment is not an appropriate means of
        promoting correction and rehabilitation.

Per the plain terms of this provision, the Supreme Court has held that “[s]ection 3582(a)
precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s
rehabilitation.” Tapia v. United States, 564 U.S. 319, 332 (2011). And because in Tapia the
sentencing transcript “suggest[ed] the possibility that Tapia’s sentence was based on her
rehabilitative needs[,]” id. at 334, the Court remanded the case.

        Here, the district court explained the rationale for Rucker’s sentence as follows:

                . . . I’m going to indicate in the strongest terms to the Bureau of Prisons
        that you be placed in the residential drug abuse program [“RDAP”] that the BOP
        offers.
                In order to qualify for that program, one must have [a] 22 months’
        sentence, and that falls within the guideline range here. I think that’s appropriate
        on a number of levels. I think it’s appropriate because it is a guideline sentence.
        I think it’s also appropriate because I believe you would benefit from participation
        in RDAP. It is an intensive program and I think—I think that, frankly, it’s called
        for here. So unless there’s anything further, I will state the sentence.

        Later in the hearing, in response to Rucker’s objection on Tapia grounds, the court
further stated:

        I will say that 3553 [i.e., 18 U.S.C. § 3553(a)(2)(D)] talks about the needs of the
        defendant for treatment. I have taken that into consideration. The fact that the
        RDAP program requires a defendant to have 22 months remaining on their
        sentence is not the deciding factor for me in imposing this sentence. It is a
        guideline sentence that I think is appropriate irrespective of that BOP regulation.

        The question, then, is whether this record “suggests the possibility” that Rucker’s
sentence “was based on [his] rehabilitative needs.” Tapia, 564 U.S. at 334. Of course, a district
court “commits no error by discussing the opportunities for rehabilitation within prison or the
benefits of specific treatment or training programs.” Id. But the court’s discussion of those
things must not be its explanation for the sentence it imposes. Instead, to comply with § 3582(a),
the court must set forth a rationale independent of rehabilitative concerns. See id. at 327 (“a
court making these decisions should consider the specified rationales of punishment except for
rehabilitation” (emphasis in original)).
 No. 16-6415                         United States v. Rucker                               Page 4


       The record lacks any such independent rationale here. True, the court said that Rucker’s
sentence “is a guideline sentence that I think is appropriate irrespective of that BOP regulation.”
But that is simply a conclusion, rather than an explanation as to why the court thought a
Guidelines sentence was appropriate. Moreover, though we take the court at its word that
Rucker’s eligibility for the treatment program was not the “deciding factor” in determining his
sentence, Rucker’s eligibility appears to have been an important factor nonetheless. Indeed the
bulk of the court’s explanation for the sentence is couched in rehabilitative terms. The record
therefore suggests the possibility that the district court based Rucker’s sentence on his
rehabilitative needs.

       The government responds that § 3582(a) does not apply here at all. The government
recites: “[T]he express language of § 3582(a) states that ‘in determining whether to impose a
term of imprisonment . . . ,’ the district court ‘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.’”        Gov’t Br. at 20 (quoting
18 U.S.C. § 3582(a) (government’s ellipsis)). The government then points out, correctly, that in
Rucker’s case the district court had no occasion to determine “whether to impose a term of
imprisonment,” 18 U.S.C. § 3582(a) (emphasis added), because § 3583(g) already mandated one.
Thus, the government concludes that § 3582(a)—and, more to the point, its anti-rehabilitation
rule—does not apply here.

       The argument is hard to fathom. The government simply elides—literally by means of
the ellipsis noted above—the very language that does make § 3582(a) applicable here. We
italicize the language the government chose to omit:

       The [district] 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.

18 U.S.C. § 3582(a) (emphasis added). Thus, by its plain terms, § 3582(a) applies not only when
a district court determines “whether to impose a term of imprisonment,” but also “in determining
the length of the term[.]”
 No. 16-6415                          United States v. Rucker                               Page 5


       Here, § 3583(g) mandated a “term of imprisonment” as punishment for Rucker’s
violations of his supervised release; but the district court “determin[ed] the length of the term[.]”
18 U.S.C. § 3582(a). And in doing so the court was required to “recogniz[e] that imprisonment
is not an appropriate means of promoting correction and rehabilitation.” Id. For this reason
among others, therefore, the government’s argument is meritless.

                                            *    *     *

       We vacate Rucker’s sentence and remand for proceedings consistent with this opinion.
 No. 16-6415                          United States v. Rucker                               Page 6


                                       _________________

                                            DISSENT
                                       _________________

       BERNICE BOUIE DONALD, Circuit Judge, dissenting. I concur in the majority’s
characterization of the legal standard and the fact that “[s]ection 3582(a) precludes sentencing
courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.”
Tapia v. United States, 564 U.S. 318, 332 (2011). However, the facts and record here do not
suggest that the district court did so, or that it failed to set forth a rationale independent of
rehabilitative concerns. Respectfully, I dissent.

       The standard of review for this case is abuse of discretion. Under this standard, this
Court is to presume that Rucker’s within-Guidelines sentence is reasonable, see United States v.
Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc), unless the district court based it on
impermissible factors, United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013), such as to
promote rehabilitation, Tapia, 564 U.S. at 332. Despite the majority opinion, it is not clear that
the district court relied on such factors.      Section 3553(a) enumerates several factors for
consideration at sentencing including the nature and circumstances of the offense and the history
and characteristics of the defendant, the need for the sentence imposed to reflect the purposes of
sentencing, i.e., retribution, deterrence, incapacitation, and rehabilitation, the kinds of sentences
available, the sentencing range established by the guidelines, and any relevant policy. 18 U.S.C.
§ 3553(a). Before any mention of Residential Drug Abuse Program (RDAP), the district court
judge stated:

       I’ve reviewed the record. I’ve spent a fair amount of time on your case, Mr.
       Rucker. I’ve looked at your past history. I’ve looked at the original criminal
       docket that brought you into the federal system. I’ve carefully reviewed the
       report that was prepared by probation, and I note that you stipulated to the
       accuracy of those violations, despite now arguing a bit about them. I’ve
       considered the fact that, back in July, all of the participants here, including the
       court, cut you a break, and we put off a final determination in order to allow you
       to participate in that program in Bowling Green.

(R. 60 Final Revocation Hrg. Tr. at 13.) Although the judge did not list every 18 U.S.C.
§ 3553(a) factor, he clearly considered several. The judge then stressed that “[t]hese are serious
 No. 16-6415                          United States v. Rucker                                 Page 7


violations” and whether it is rooted in addiction, “these are still serious violations, and the
guidelines provide a range of 21 to 27 months based on this.”               (Id. at 14.)   The judge
subsequently observed that “[i]n order to qualify for [RDAP], one must have 22 months’
sentence,” and noted that the twenty-four-month sentence “falls within the guideline range.”
(Id.)

        In response to Rucker’s objection that the court had impermissibly lengthened Rucker’s
sentence, the district judge expressly said “[t]he fact that the RDAP program requires a
defendant to have 22 months remaining on their sentence [was] not the deciding factor for [him]
in imposing [Rucker’s] sentence.” (Id. at 17-18.) The judge explained “[i]t is a guideline
sentence that [was] appropriate irrespective of that BOP regulation.” (Id.) Finally, citing 18
U.S.C. § 3621(b)(4), the judge orally stated he “strongly recommend[ed]” BOP evaluate Rucker
for RDAP placement, (Id. at 80), and included a similarly strong recommendation in his written
commitment order. (R. 57, Order at 2.)

        These statements were consistent with Tapia and Deen, which held “a court commits no
error by discussing the opportunities for rehabilitation within prison or the benefits of specific
treatment . . . programs.” United States v. Deen, 706 F. 3d 760, 768 (6th Cir. 2013) (quoting
Tapia, 564 U.S. 319, 333 (2011)). Accordingly, “urg[ing] the BOP to place an offender in a
prison treatment program” is permissible under Tapia. Deen, 706 F.3d at 768. And one
comment from the court—that treatment eligibility was not the deciding factor, thus plausibly
implying it was a factor—does not destroy all reasonableness of the sentence, particularly given
the deference due to the district court. Indeed, while the majority states that Rucker’s RDAP
eligibility appears to have been an “important factor,” it is unclear that is the case. As the district
court implied, it may well be just a fortuitous benefit.

        Thus, the district court’s statement that in order to qualify for RDAP one must have
twenty-two months remaining on their sentence, and that Rucker’s twenty-four month sentence
qualified him for the program, does not indicate the court calculated the length of Rucker’s
sentence to ensure that he receive drug rehabilitation services. The district court transcript shows
that the court took the pertinent § 3553(a) factors and the totality of the circumstances into
 No. 16-6415                        United States v. Rucker                              Page 8


account in determining Rucker’s sentence. Rucker’s claim to the contrary does not overcome the
“presumption of reasonableness” that his within-Guidelines sentence is due. Therefore, I dissent.
