                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          May 3, 2016
                         UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                      TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                          No. 16-3025
                                                  (D.C. No. 5:14-CR-40014-DDC-3)
 CHANEL SADE FOSTER,                                          (D. Kan.)

           Defendant - Appellant.



                                   ORDER AND JUDGMENT*


Before BRISCOE, GORSUCH and McHUGH, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Chanel Foster appeals from the district court’s imposition of a twelve-

month-and-one-day term of imprisonment following revocation of her supervised release.


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
According to Foster, the district court committed plain procedural error by basing the

length of her revocation sentence on her need for rehabilitation services. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Foster. Consequently, we

remand to the district court with directions to vacate Foster’s revocation sentence and

resentence.

                                              I

       On October 17, 2014, Foster entered a plea of guilty to passing a counterfeit

obligation of the United States, in violation of 18 U.S.C. § 472. The offense arose out of

Foster’s use of counterfeit money at a local grocery store. She was sentenced to a thirty-

six month term of probation and ordered to pay restitution in the amount of $850. As part

of her probation, Foster was ordered to comply with various conditions, including that she

abstain from alcohol, maintain lawful employment, and undergo substance abuse, mental

health and anger management treatment.

       On July 16, 2015, Foster’s probation was revoked due to her failure to pay the

restitution ordered by the district court, abstain from alcohol, work at a lawful occupation,

and participate in mental health treatment. She was sentenced to a term of imprisonment

of three months, to be followed by a two-year term of supervised release. As part of her

supervised release, Foster was again ordered, among other things, to abstain from alcohol

and participate in mental health and anger management treatment. She was also ordered

to reside at a residential reentry center for the first four months of her term of supervised

release.

                                              2
       Foster began her term of supervised release on September 17, 2015. On December

28, 2015, she was discharged unsuccessfully from the residential reentry center in which

she was living due to her failure to follow rules. In particular, it was noted that she “had

numerous incidents with staff members regarding her attitude and behavior,” took

unauthorized amounts of medication on several occasions, and “failed to provide a breath

sample for alcohol testing” on December 20, 2015. ROA, Vol. II at 6. All of which

resulted in her being charged with violating the special conditions of her supervised

release.

       The district court held a revocation hearing on January 13, 2016. After hearing

testimony from Foster and her probation officer, the district court found that she had

committed a Grade C violation by failing to reside at the residential reentry center for

four months, as required by the terms of her supervised release. ROA, Vol. III at 64. The

district court in turn decided to revoke Foster’s term of supervised release as a result of

that violation. Id. at 65. After acknowledging that the Policy Statement outlined in §

7B1.4 of the United States Sentencing Guidelines recommended a term of imprisonment

of three to nine months for the violation, ROA, Vol. III at 81, the district court sentenced

Foster to a term of imprisonment of twelve months and one day, id. at 82, to be followed

by no term of supervised release, id. at 84. The district court explained that it believed a

term of imprisonment was necessary to punish Foster “for violating the public trust.” Id.

at 82. The district court in turn stated that the length of the term of imprisonment it chose

was necessary to render Foster “eligible for certain programming while [she was] in

                                              3
custody.” Id. Consistent with that statement, the district court recommended to the

Bureau of Prisons that it provide Foster with “a mental health assessment and, if

appropriate, treatment,” as well as “medication monitoring and substance abuse

assessment and treatment, if treatment is appropriate.” Id. at 83.

       Judgment was entered on January 21, 2016. Foster subsequently filed a timely

notice of appeal.

                                               II

       On appeal, Foster argues that the district court committed plain procedural error by

basing the length of her sentence on her need for rehabilitation and mental health and

drug treatment. Notably, the government has filed a confession of error, coupled with a

motion to remand, agreeing with Foster. Of course, we are not bound to accept the

government’s confession of error. Young v. United States, 315 U.S. 257, 258-59 (1942)

(noting that “our judicial obligations compel us to examine independently the errors

confessed”). But, having conducted our own examination of the record, we agree with

the parties that the district erred.

       Where, as here, a defendant failed to make a specific argument in the district court,

“our review is for plain error.” United States v. Smith, 815 F.3d 671, 675 (10th Cir.

2016) “We will grant relief under the plain-error standard only if (1) the district court

committed an error, (2) the error is clear at the time of the appeal, (3) the error affects

substantial rights, and (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quotation marks omitted).

                                                4
       The first two prongs of the plain error test are easily satisfied in this case. “For us

to characterize a proposition of law as well-settled, we normally require precedent

directly in point from the Supreme Court or our circuit or a consensus in the other

circuits.” Id. In Tapia v. United States, 564 U.S. 319, 332 (2011), the Supreme Court

held that the plain language of 18 U.S.C. § 3582(a) “precludes sentencing courts from

imposing or lengthening a prison term to promote an offender’s rehabilitation.” We in

turn have held, in light of Tapia, that “a district court imposing a revocation sentence

cannot take into account a defendant’s rehabilitative needs.” United States v. Mendiola,

696 F.3d 1033, 1036 (10th Cir. 2012).

       Unfortunately, that is precisely what occurred in this case. Although the district

court reasonably concluded that some term of imprisonment was needed for purposes of

punishment, it ultimately selected the twelve-month-and-one-day term of imprisonment in

order to render Foster eligible for rehabilitation services provided by the Bureau of

Prisons. That, as we held in Mendiola, is improper and amounts to plain procedural error.

Id. at 1042.

       Further, as was the case in Mendiola, we conclude that the third and fourth prongs

of the plain error test are satisfied because it is likely that, had the district court not

focused on Foster’s need for rehabilitation, it would have imposed a lesser sentence. Id.

Consequently, we must remand the case to the district court for resentencing. Id.




                                                5
       We GRANT the government’s motion to remand, and REVERSE and REMAND

to the district court with directions to vacate Foster’s revocation sentence and resentence.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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