                                                                      FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                    PUBLISH                   November 9, 2016
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                               TENTH CIRCUIT



UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                      No. 16-8021

ASHLEY LARAE TIDZUMP,

      Defendant - Appellant.



              Appeal from the United States District Court
                      for the District of Wyoming
                  (D.C. No. 2:15-CR-00176-SWS-1)


Submitted on the briefs. *

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Office of the Federal Public
Defender, Denver, Colorado, for Defendant-Appellant.

Timothy W. Gist, Assistant United States Attorney (Christopher A.
Crofts, United States Attorney, with him on the brief), District of
Wyoming, Lander, Wyoming, for Plaintiff-Appellee.


Before L U C E R O , M c K A Y , and B A C H A R A C H , Circuit Judges.



*
     Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
B A C H A R A C H , Circuit Judge.



      This appeal grows out of Tapia v. United States, 564 U.S. 319

(2011). There, the U.S. Supreme Court held that a federal district court

cannot impose or lengthen a prison term to promote rehabilitation. 564

U.S. at 332.

      Tapia was implicated when Ms. Ashley Tidzump was convicted of

assault and requested an 18-month prison term, admitting an addiction to

opiates and a need for treatment. But Ms. Tidzump would ordinarily

qualify for the prison’s drug treatment program only if she were to begin

treatment with at least two years remaining on her sentence. See BOP

Program Statement No. P5330.11 § 2.5.1(b)(d) (Mar. 16, 2009) (stating

that admission into the residential drug-abuse treatment program (RDAP)

ordinarily requires an inmate to have at least 24 months remaining on the

sentence). 1 So, the district court imposed a prison sentence of 31 months.

Though the sentence dipped below the guideline range, the sentence was




1
      We may take judicial notice of the BOP’s program statement. See
Davila v. Gladden, 777 F.3d 1198, 1207 n.3 (11th Cir. 2015) (taking
judicial notice of a BOP program statement); United States v. Thornton,
511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (same).

                                     2
long enough to allow Ms. Tidzump to become eligible for the prison’s

drug treatment program.

      Ms. Tidzump appeals the sentence, calling on us to decide whether

the district court’s explanation for the sentence was permissible under

Tapia. We conclude that the sentence was impermissible because the

district court expressly lengthened the sentence for the purpose of

promoting rehabilitation. We reverse.

I.    Standard of Review

      Ms. Tidzump did not object to the sentence in district court. As a

result, we engage in limited review, deciding only whether the sentence

constitutes plain error. United States v. Mendiola, 696 F.3d 1033, 1036

(10th Cir. 2012). In reviewing for plain error, we will reverse only if the

district court erred in a way that is plain or obvious, prejudicing Ms.

Tidzump’s substantial rights and seriously affecting the fairness,

integrity, or public reputation of the judicial proceedings. Id.

II.   The district court erred in a way that is plain or obvious.

      In our view, the district court erred in a plain or obvious manner. In

reaching this conclusion, we recognize that the district court decided the

sentence with a laudable purpose (facilitating rehabilitation) and

proceeded without the benefit of adversarial argument. Nonetheless, the

Tapia Court clearly and unequivocally prohibited district courts from

                                     3
imposing or lengthening a sentence for the purpose of promoting

rehabilitation. Tapia v. United States, 564 U.S. 319, 332 (2011); see

United States v. Mendiola, 696 F.3d 1033, 1036 n.2 (10th Cir. 2012)

(“Tapia’s holding was clear and unequivocal.”).

      The government argues that until now, there has been no precedent

on whether Tapia prevents “a discretionary downward variance to

account for treatment.” Appellee’s Resp. Br. at 20. This argument would

not support affirmance here. The issue does not involve prevention of a

downward variance, for the district court did vary downward by selecting

a 31-month sentence. Though a downward variance was permissible, the

district court could not reduce the downward variance for the purpose of

promoting rehabilitation.

      The court did precisely that. Though Ms. Tidzump requested an 18-

month sentence, the district court stated that it preferred not to require

any prison time. R., vol. 3 at 56. Ultimately, however, the court varied

downward to 31 months, declining to go down any further for the stated

purpose of allowing Ms. Tidzump to qualify for treatment in the RDAP.

The district court expressed its thinking in two statements:

      1.    “I’m not sending her 18 months to warehouse her, because she
            won’t get into the program.”




                                       4
        2.   “I [will] go down to 31 months. I think that’s the—probably
             the bottom number I can get to and get her into the RDAP
             program.”

Id. at 57.

        The government interprets these comments differently, noting that

the court expressed uncertainty over whether the 31-month sentence

would be the shortest prison term to qualify Ms. Tidzump for the RDAP:

        In looking at all the facts and circumsta n c e s in this case, a
        sentence of 33 months, what is sufficient but not grea te r than
        necessary considering the objectives? I go down to 31 months.
        I think that’s the – probably the bottom number I can get to and
        get her into the RDAP program. Maybe not.

Id. (emphasis added). Seizing on the comment at the end, “Maybe not,”

the government argues that (1) a 31-month term would have been too

short to allow entry into the RDAP and (2) surely the district court knew

that:

        [T]he De fendant had served almost 4 months (119 days) in
        custody a s of the date of sentencing, and thus a 31 month
        sentence was in effect a 27 month se ntence. If the court was
        truly fashioning a sentence to ensure the Defendant would be
        eligible for RDAP . . . it would have imposed a longer sentence
        – a nd not va ried downward from the advisory guideline – so as
        to offse t this time already spent in custody. The court would
        also have known it would take upward of several months for the
        Defendant to be designated and transported to her eventual BOP
        placement, shaving even more time from her sentence.

Appellee’s Resp. Br. at 19 (citation omitted).

        The government’s argument does little to create uncertainty over

the district court’s intent. Indeed, the argument serves only to confirm

                                       5
that a 31-month sentence would probably constitute the shortest prison

term that would allow entry into the RDAP.

      What did the court mean when it added “Maybe not”? Presumably,

the court meant that no one could know for sure what would be the

shortest prison sentence to qualify Ms. Tidzump for the RDAP.

      As indicated above, the BOP ordinarily allows entry into the RDAP

only if at least 24 months remain on a sentence. See p. 2, above. As the

government implies, Ms. Tidzump would get credit for the period of

roughly four months in pretrial detention. 18 U.S.C. § 3585(b)(1) (2012);

see Appellee’s Resp. Br. at 19 (stating that “a 31 month sentence was in

effect a 27 month sentence” because of the period of almost four months

in pretrial detention). Thus, Ms. Tidzump’s four months in pretrial

detention would not count toward her eligibility for the RDAP.

      The same is true of the time that Ms. Tidzump spent awaiting a BOP

placement. Appellee’s Resp. Br. at 19. The government states that this

period could take “upward of several months.” Id.

      According to the government’s math, Ms. Tidzump could not enter

the RDAP until she had already served almost four months in pretrial

detention and “upward of several months” waiting for her “eventual BOP

placement.” Id. By then, roughly 24 months would have remained on her




                                      6
sentence, precisely the minimum ordinarily allowed under the BOP

guidelines.

      But the court could not know for sure

      !       how long it would take for Ms. Tidzump to be placed at a BOP
              facility or

      !       how quickly she could get into an RDAP.

Thus, the district court acknowledged some uncertainty, stating “Maybe

not,” when remarking that 31 months was “probably” the shortest prison

sentence to allow Ms. Tidzump to “get . . . into the RDAP.” R., vol. 3 at

57.

      The court expressly acknowledged that it sentenced Ms. Tidzump to

31 months because that was likely the minimum to allow entry into the

RDAP. We do not know with certainty how the court arrived at 31

months. But the government’s argument reflects a reasonable

explanation: Ms. Tidzump could not enter the program until spending

roughly 4 months in pretrial detention and upward of 3 months in

awaiting a BOP placement. At that point, Ms. Tidzump would have

roughly 24 months remaining on her sentence, precisely the minimum for

entry into the RDAP. Coincidence? We think not.

                                     ***

      In sentencing Ms. Tidzump, the court expressly relied on Ms.

Tidzump’s need for drug treatment. This approach, however, is clearly

                                       7
and unequivocally foreclosed by Tapia. As a result, we conclude that the

district court erred in a way that was plain or obvious.

III.   T h e e r r o r a f f e c t e d M s . T i d zu m p ’ s s u b s t a n t i a l r i g h t s .

       An obvious error, however, is not enough to require reversal. In

addition, Ms. Tidzump must show an effect on her substantial rights. See

Section I, above. This burden is met if compliance with Tapia would

likely have led to a shorter sentence. United States v. Cordery, 656 F.3d

1103, 1108 (10th Cir. 2011).

       Ms. Tidzump has made the required showing: the district court

stated that it preferred not to give any prison time and decided against an

18-month sentence because it would have prevented residential drug

treatment. In these circumstances, “it is reasonable to assume that, had

the district court ‘not focused on a particular drug treatment program

within a federal institution,’ it likely would have imposed a lesser

sentence.” United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir.

2012) (citation omitted). Thus, we conclude that the error affected Ms.

Tidzump’s substantial rights. Id.; see also United States v. Cordery, 656

F.3d 1103, 1108 (10th Cir. 2011) (holding that a Tapia error affected the

defendant’s substantial rights because the district court’s emphasis on

“RDAP eligibility suggests a reasonable probability that the sentence

would have been lower without this consideration”).



                                                        8
IV.   The error seriously affected the fairness, integrity, and public
      reputation of the judicial proceedings.

      Finally, Ms. Tidzump must show that the error seriously affected

the fairness, integrity, and public reputation of the judicial proceedings.

See Section I, above. We conclude that Ms. Tidzump satisfied this

burden.

      On this element, we consider whether compliance with Tapia would

likely have led to a significantly shorter sentence. United States v.

Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011). That likelihood exists

here. Defense counsel asked for an 18-month sentence, and the district

court stated that it preferred not to require any prison time. Instead, the

court imposed a prison term of 31 months. That prison term exceeded Ms.

Tidzump’s request by over 40%, which was significant. As a result, we

conclude that the Tapia error seriously affected the fairness, integrity,

and public reputation of the judicial proceedings. See id. at 1105, 1108

(holding that a Tapia error seriously affected the fairness, integrity, and

reputation of the judicial proceedings when the sentence exceeded the

bottom of the guidelines by five months).




                                      9
V.   Disposition

     We reverse and remand for resentencing in a manner consistent

with Tapia.




                                  10
