     Case: 19-50949   Document: 00515400356        Page: 1   Date Filed: 04/30/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                    No. 19-50949                        April 30, 2020
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


             Plaintiff - Appellee

v.

FRANCISCO RODRIGUEZ-SALDANA, also known as Francisco Saldana-
Rodriguez,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Appellant Francisco Rodriguez-Saldana was sentenced to 24 months’
imprisonment after pleading guilty to felony illegal reentry. He was in the
United States to receive necessary eye surgery. This surgery became part of
the dialogue between counsel and the district court at the sentencing hearing.
Now, Rodriguez-Saldana contends the prospect that he would receive surgery
while in prison was a “dominant factor” in the sentence imposed, which would
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                                      No. 19-50949
be improper under the Supreme Court’s decision in Tapia v. United States. 1
Reviewing for plain error, we affirm.
                                           I.
      Rodriguez-Saldana, a citizen of Mexico, pled guilty in August 2019 to
illegally reentering the United States after removal. 2 This charge was
precipitated by his December 2018 arrest for possession of less than one gram
of a controlled substance, which was dismissed for insufficient evidence.
      After entering federal custody, an immigration check revealed two prior
convictions for illegal reentry. Rodriguez-Saldana was first ordered removed
on January 7, 2010. He was sentenced to eight months’ imprisonment for his
first illegal reentry conviction in April 2010 and to 16 months’ imprisonment
for his second such conviction in June 2014. These convictions, along with other
state convictions for possession with intent to deliver a controlled substance
(September 2009), failure to identify (May 2014), and possession of less than
one gram of a controlled substance (July 2017), led to a criminal history
category of V and an adjusted offense level of 16 in Rodriguez-Saldana’s
presentencing report (PSR). This was reduced to 13 for acceptance of
responsibility. Rodriguez-Saldana’s imprisonment range under the Sentencing
Guidelines was 30 to 37 months.
      At the sentencing hearing, the district court asked Rodriguez-Saldana
about his family in Mexico and asked, “Wouldn’t you rather be with them than
in jail?” Rodriguez-Saldana answered, “I needed an operation, and I can’t pay
it over there.” This was the first mention of the eye surgery at the brief hearing.
      Next, the Government, when asked its position on the sentence, said it
considered the Guidelines range of 30 to 37 months appropriate since



      1   564 U.S. 319, 332 (2011).
      2   8 U.S.C. § 1326.
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                                  No. 19-50949
Rodriguez-Saldana has received “higher and higher sentences each time he’s
come here” and been convicted of illegal reentry. The district court said, “That
works fine. Eight months to 16 months, now to 30 months.”
      In response, Rodriguez-Saldana’s counsel explained that his client was
in the United States to undergo necessary eye surgery. He then argued that
the age of some of Rodriguez-Saldana’s offenses overstated his criminal
history. Subtracting these older offenses would mean an 18- to 24-month
range. Counsel lobbied for a sentence at the bottom of this range. After
counsel’s argument, the district court said, “Well, it needs to go up. So it still
can—we can get there.” That is, a sentence within this new proposed range
would still yield an increase over Rodriguez-Saldana’s last 16-month sentence
for illegal reentry.
      The court then directly addressed Rodriguez-Saldana, who explained he
had sought a medical visa but had been denied. The district court stated, “I
guess the good news is, now that you’re in federal prison, you will get very good
medical care.” Departing downward from the Guidelines, the court pronounced
a sentence of 24 months “among other things, so that he will have time to get
his eye surgery.” Rodriguez-Saldana’s counsel then offered more details: The
surgery was independently scheduled for December 15, and Rodriguez-
Saldana was working to pay for the surgery and had paid half up front.
      The court responded to this information: “Well, then the Court
recommends that he be sent to the Fort Worth Bureau of Prison Medical
Center with his records so that he can get the eye surgery done there,
hopefully.” Finally, the court warned Rodriguez-Saldana that if he returned to
the United States illegally, “next time, instead of 24 months, it’ll be more like
48 months. And then the next time will be 96 months. You understand how it
works now?” Rodriguez-Saldana did not object.


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                                     No. 19-50949
      The written judgment recommended that “[t]he defendant shall serve
this sentence at the Fort Worth Bureau of Prison’s Medical Center and receive
the necessary medical care pertaining to his eye(s) and the surgery he
requires.” In the written Statement of Reasons (SOR), the court checked
“Criminal History Inadequacy” as a reason for departing downward. As the
basis for departure, the court wrote that it “found the criminal history to be
overstated and the defendant has a medical issue requiring eye surgery.”
                                            II.
      This court reviews a sentence for abuse of discretion. We presume that a
within-Guidelines sentence is reasonable, 3 a presumption that is rebutted
when the district court gives significant weight to an improper factor. 4 Since
Rodriguez-Saldana did not object to his sentence, we review for plain error.
Under the four-prong framework of plain-error review, Rodriguez-Saldana
must show (1) an error (2) that is “clear or obvious” and that (3) “affected [his]
substantial rights.” 5 If the first three prongs are satisfied, we may exercise our
discretion to correct the error if it (4) “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” 6
                                           III.
      The sole issue in this appeal is whether the district court violated 18
U.S.C. § 3582(a) and Tapia v. United States, which prevent a sentencing court
from “impos[ing] or lengthen[ing] a prison sentence to enable an offender to
complete a treatment program or otherwise to promote rehabilitation.” 7
      “Our caselaw applying § 3582(a) and Tapia holds that ‘a sentencing court
errs if a defendant’s rehabilitative needs are a dominant factor that informs


      3 United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      4 United States v. Cooks, 589 F.3d 173, 189 (5th Cir. 2009).
      5 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018).
      6 Id. at 1905.
      7 564 U.S. at 335.

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                                     No. 19-50949
the district court’s sentencing decision.’” 8 But “we have never required the
appellant to establish that the court’s improper reliance on rehabilitation
considerations was the sole factor in sentencing.” 9 A court commits no Tapia
error—and a defendant is thus not entitled to a resentencing—if the need for
rehabilitation is a “secondary concern” of the court or “additional justification”
for the sentence. 10 It is not error to “discuss[] the opportunities for
rehabilitation within prison or the benefits of specific treatment or training
programs.” 11 Along the same lines, a court can “urge the BOP to place an
offender in a prison treatment program.” 12
      The chance that Rodriguez-Saldana would get his eye surgery was
mentioned by the district court several times at the sentencing hearing and in
the written judgment and SOR. We must answer Rodriguez-Saldana’s
contention that the eye surgery was a dominant factor, not merely a secondary
concern, in the arrived-at sentence. Rodriguez-Saldana points to the district
court’s surgery-related comments—for example, that “I guess the good news is,
now that you’re in federal prison, you will get very good medical care” and that
“[t]he Court will sentence [Rodriguez-Saldana] to 24 months in prison, among
other things, so that he will have time to get his eye surgery.”
       A survey of statements that have been found to be improper in this
context will aid our review. In Tapia, the sentencing court erred by stating, for
example, that “[t]he sentence has to be sufficient to provide needed correctional
treatment.” 13 The sentencing court also stated that the “number one” thing “is



      8  United States v. Galvan Escobar, 872 F.3d 316, 320 (5th Cir. 2017) (quoting United
States v. Pillault, 783 F.3d 282, 290 (5th Cir. 2015) (alterations and quotation marks
omitted)).
       9 United States v. Wooley, 740 F.3d 359, 366 (5th Cir. 2014).
       10 Pillault, 783 F.3d at 290.
       11 Tapia, 564 U.S. at 334.
       12 Id.
       13 Id. (cleaned up).

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                                     No. 19-50949
the need to provide treatment” and ensure “she is in long enough to get the 500
Hour Drug Program.” 14 To the Tapia Court, “[t]hese statements suggest that
the court may have calculated the length of Tapia’s sentence to ensure that she
receive certain rehabilitative services.” 15 This was improper, as “a court may
not impose or lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” 16
      Our cases finding Tapia error have done so based on statements like
these. In United States v. Garza, we found error where the district court
departed upward because the defendant “should be required [or] at least be
given an opportunity to participate in that residential institution drug
treatment program” to “get [the defendant] straightened out.” 17 In United
States v. Broussard, applying plain-error review, we found error sua sponte
where the court stated that the defendant “needs help badly,” that the
defendant “needs medical care and treatment,” and that there was a
“compelling . . . need to incarcerate this individual for the treatment that he
needs.” 18 In United States v. Escalante-Reyes, we also found plain error where
the court stated, for example, that “there’s a temper and anger problem here
. . . [a]nd that’s got to be the basis for what good prison will do for this
Defendant.” 19 And in United States v. Culbertson, we found error where the
district court based its sentence in part on giving the defendant “a period of
time where [he] can, once again, get clean and sober and stay clean and
sober.” 20 When asked why it imposed a 30-month sentence, a steep upward




      14 Id.
      15 Id. at 334–35.
      16 Id. at 335.
      17 706 F.3d 655, 660–61 (5th Cir. 2013).
      18 669 F.3d 537, 552 (5th Cir. 2012).
      19 689 F.3d 415, 423 (5th Cir. 2012) (en banc).
      20 712 F.3d 235, 237–38, 244–45 (5th Cir. 2013).

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                                          No. 19-50949
departure from the five-to-11-month Guidelines range, the Culbertson
sentencing court answered, “Because I think you need that time to get yourself
stabilized. I think if we gave you within the guidelines, you would be there and
then quickly out and be right back here.” 21
      On the other hand, we have not found Tapia error where “the district
court merely advises the defendant of rehabilitative opportunities or expresses
its hope that the defendant will take advantage of such rehabilitative
programming while imprisoned.” 22 In United States v. Galvan Escobar, we
affirmed the district court, which stated it “hope[d]” the defendant could get
help in prison “and therefore requested the BOP provide it.” 23 And in United
States v. Pillault, we found no error where “the court acknowledged [the
defendant’s] mental health history and the ‘need to address his abuse of alcohol
and narcotics,’ [but] it did so immediately after referring to the testimony that
. . . [the defendant’s] risk of future dangerous[ness] was much higher if he
continued to abuse substances.” 24
      Our post-Tapia cases, however, stress that we look at the record as a
whole. 25 Here, we first recognize the district court’s clearest sentencing
criterion in this case: that Rodriguez-Saldana receive a significantly longer
sentence for third illegal reentry than he received for his second or his first.
The court viewed this as a necessary escalation, as seen when it originally
agreed with the Government’s position that the Guidelines range was
appropriate: “Yeah. He went from—yeah. That works fine. Eight months to 16
months, now to 30 months.” The court consistently returned to the idea of
doubling, or at least substantially increasing, each consecutive sentence. At


      21 Id. at 237.
      22 Wooley, 740 F.3d at 365.
      23 872 F.3d at 321.
      24 783 F.3d at 291.
      25 See Pillault, 783 F.3d at 292.

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                                 No. 19-50949
the end of the hearing, the court warned Rodriguez-Saldana: “So if you come
back, next time, instead of 24 months, it’ll be more like 48 months. And then
the next time will be 96 months. You understand how it works now?”
      With that concern in mind, the court was willing to accept Rodriguez-
Saldana’s argument that his criminal history was overstated because the
adjusted range would still accomplish the primary objective of increasing
Rodriguez-Saldana’s sentence. Rodriguez-Saldana’s last sentence was 16
months and the new range, after subtracting the outdated, unrelated criminal-
history points, was 18 to 24 months. The court stated the sentence “needs to go
up” but “we can get there” with the new range—it saw room at the upper end
of Rodriguez-Saldana’s proposed range to accommodate its intent to
substantially increase his sentence.
      Our view is that the district court’s desire to increase Rodriguez-
Saldana’s sentence in relation to prior sentences was a dominant factor. A
secondary concern was that some of the criminal-history points were dated and
unrelated to illegal reentry. The court accommodated that secondary concern
while staying true to its main guidepost for the sentence’s length.
      Still, we must contend with the court’s troubling statements that it
imposed the sentence “among other things, so that he will have time to get his
eye surgery” and, in the SOR, that the defendant “has a medical issue requiring
eye surgery.” These comments could indicate, as Rodriguez-Saldana argues,
that while the court had other concerns in mind, the eye surgery was at least
a dominant factor in the specific sentence it chose. Reviewing the full
sentencing transcript, however, we conclude the eye surgery was at most a
secondary concern for the sentence. The only argument Rodriguez-Saldana’s
counsel made for sentence reduction was based on the outdated offenses; he
did not argue that the justification for Rodriguez-Saldana’s presence in the
United States warranted a lighter sentence. When the court pronounced the
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24-month sentence, the eye surgery had been mentioned as the reason for
Rodriguez-Saldana’s presence but most of the minimal information the court
learned about the surgery had not yet been offered. After the sentence was
pronounced, more information came out about the surgery—that it had already
been scheduled, and that Rodriguez-Saldana had paid half and was working to
pay the full cost on his own—but Rodriguez-Saldana’s counsel did not raise
this as a reason for a reduced sentence and the court did not indicate how or
whether it adjusted the sentence based on what it knew of the surgery.
      In sum, reviewing for clear and obvious error, we do not find enough
indication that the district court extended Rodriguez-Saldana’s sentence to
allow him time to have eye surgery. The district court’s statements as to the
possible availability of eye surgery are not clear error, nor is the court’s
recommendation that Rodriguez-Saldana be sent to a specific medical facility.
After all, the Tapia Court noted that “a court may urge the BOP to place an
offender in a prison treatment program.” 26
                                            IV.
      Rodriguez-Saldana has not shown clear and obvious error. Accordingly,
we affirm the sentence of the district court.




      26   564 U.S. at 334.
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