                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                       December 11, 2018
                          _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,
                                                               No. 18-6056
    v.                                                 (D.C. No. 5:17-CR-00170-C-1)
                                                               (W.D. Okla.)
    RAYTHELL ANTWON KELLEY,

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
                  _________________________________

         Defendant Raythell Antwon Kelley appeals the district court’s decision to run his

63-month federal sentence consecutively to sentences in state prison for unrelated

offenses. He argues that the district court committed plain error because its decision to

impose a consecutive sentence was based in part on its desire to promote his

rehabilitation, and hence was contrary to the Supreme Court’s holding that 18 U.S.C.

§ 3582(a) of the Sentencing Reform Act “precludes sentencing courts from imposing or



*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under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.
lengthening a prison term to promote an offender’s rehabilitation.” Tapia v. United

States, 564 U.S. 319, 332 (2011). We review for plain error because Defendant did not

raise this issue in district court. See United States v. Thornton, 846 F.3d 1110, 1114

(10th Cir. 2017). Exercising jurisdiction under 28 U.S.C. § 1291, we hold that Defendant

is not entitled to relief, because even if the district court’s reference to rehabilitation was

error, he has not shown a reasonable probability that his sentence was thereby increased.

       I.     BACKGROUND

       Defendant pleaded guilty in the United States District Court for the Western

District of Oklahoma to possession of a firearm by a convicted felon. See 18 U.S.C. §

922(g)(1). He had been found with the firearm during a traffic stop. Six months earlier,

Defendant, who was 26 at the time, had been released from prison after serving five years

of a 20-year sentencing arising from his participation in a gang-related drive-by shooting.

(The rest of the sentence was suspended.) The probation office’s presentence report

(PSR) computed his offense level under the Sentencing Guidelines as 19, after a three-

level reduction for acceptance of responsibility. It also noted juvenile offenses beginning

when Defendant was 13, and computed his criminal-history category as VI based on

multiple adult offenses, including drug offenses and the gang shooting. The advisory

guidelines sentencing range was 63 to 78 months. The PSR reported that the State had

revoked Defendant’s suspended sentence for the gang-shooting incident after his arrest

on the gun charge and that he had been resentenced to an additional 10 years’

imprisonment.




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       Defendant’s sentencing memorandum did not challenge the PSR’s factual

recitation or recommendation and requested a sentence of 63 months. It noted that he

“wants to use this opportunity while incarcerated to treat his mental illness and his

marijuana use and dependency,” “to learn how to read,” and “to learn a trade such as

woodworking or drafting.” R., Vol. II at 31. It requested that Defendant be

recommended for the RDAP (Residential Drug Abuse Program), which provides

residential drug treatment of at least six months for federal inmates in a specialized unit

set apart from the general prison population. See 28 C.F.R. § 550.53(a). At the

sentencing hearing, defense counsel again requested a 63-month sentence, and again

stated Defendant’s desire to “through incarceration . . . pursue his GED” and “learn a

trade,” and noted his “severe mental issues.” R., Vol. III at 9-10. But Defendant asked

that his 63-month sentence run concurrently with the recently imposed 10-year state

sentence. He also requested a three-year term of supervised release to help him with

rehabilitation. (Counsel noted that Defendant had been charged in state court with a gun

charge arising out of the same incident as the federal charge but that he anticipated

termination of the state charge in light of the federal prosecution.)

       The government responded that the guidelines said that Defendant’s sentence

should be consecutive to his state sentences, not concurrent with them, and that a

consecutive sentence “would be just in this case.” R., Vol. III at 15.

       The district court imposed a 63-month sentence and agreed with the government

that the sentence should be consecutive to Defendant’s state sentences. The court first

established that if Defendant’s sentence ran concurrently with his state sentences, it was


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likely that the federal sentence would expire by the time he was released from state

custody. The court explained the sentence as follows:

       I don’t believe anybody in this courtroom feels more strongly about the
       circumstances from which you come that I do. Clearly, you have not had
       much of a start in life or a middle. We’re not to the end yet, but you have
       not had a lot of luck in your circumstances or a lot of supervision or
       guidance or parental control. I applaud your sister for taking on the
       responsibility for you and your younger sister and making things as good as
       she was able to do. And I know—I’ve sentenced a lot of people sitting up
       here—that that tends to make you go to the gangs, to the street, where you
       have some acceptance and some sense of family.

       Unfortunately, that also means that you spend just about the rest of your life
       in prison for one thing or another, which you’ve got a good start on. On the
       other side of that, you’re now 27 years old. You claim to have left the gang
       life. The statistics show that you eventually age out of commiting crimes,
       and so you need to get started on that. I believe Mr. Phillips when he says
       that you are quiet and friendly and pleasant. That’s my impression of you
       from here at the podium. You can be a success, but you need a lot of help.

       If I were to run this sentence concurrent with the sentences you’re serving,
       first of all, I don’t think that would be right because it is not any
       punishment at all for the new criminal conduct. It should be run concurrent
       to any sentence imposed in the pending charge in state court that is for this
       same conduct. That I agree with, but not concurrent to the other sentences
       that were imposed long ago and you’re simply serving revocation terms on.

       First, because I don’t think it’s appropriate given the circumstances, but,
       secondly, because you need that 63 months in federal custody. You need
       the programs that the Federal Bureau of Prisons can offer you. You need
       residential drug abuse treatment. You need to get your GED. You need to
       learn a trade. I believe it would be punishing you more to sentence you
       concurrently to those state sentences because you wouldn’t get that
       opportunity.

       It is for these reasons that I sentence you to the custody of the Bureau of
       Prisons for a term of 63 months. This will be served concurrently to any
       imprisonment imposed in the pending case in Oklahoma County District
       Court . . . . It is to be served consecutively to other state sentences.

R., Vol. III at 16-18.


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       II.    DISCUSSION

       Defendant acknowledges that our review is for plain error because he did not

object in the district court to a consecutive sentence on the ground that it violated Tapia.

We can therefore grant relief only if Defendant shows that “(1) the district court erred, (2)

the error was plain, (3) the error prejudiced his substantial rights, and (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Thornton, 846 F.3d at 1114.

       We deny relief because Defendant has not satisfied his burden on the third prong:

prejudice. See United States v. Algarate-Valencia, 550 F.3d 1238, 1243 n.3 (10th Cir.

2008) (“We need not address this first prong of the plain error test . . . because the plain

error issue is settled by application of the third prong.”). To determine whether an error

affected a defendant’s substantial rights, “we ask . . . whether there is a reasonable

probability that, but for the error claimed, the result of the proceeding would have been

different.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (internal quotation

marks omitted). “This burden is met if compliance with Tapia would likely have led to a

shorter sentence.” United States v. Tidzump, 841 F.3d 844, 847 (10th Cir. 2016).

       Our review of this issue must begin with the context in which the issue was

presented to the court. All agreed that the federal sentence should be 63 months. And

the court stated that Defendant’s federal offense required a consecutive sentence, because

a concurrent sentence “is not any punishment at all for the new criminal conduct.” R.,




                                               5
Vol. III at 17. As the government has stated, this choice conformed to the guidelines,

which call for a consecutive sentence in this circumstance:

       [I]n cases in which the defendant was on federal or state probation, parole,
       or supervised release at the time of the instant offense and has had such
       probation, parole, or supervised release revoked, . . . the Commission
       recommends that the sentence for the instant offense be imposed
       consecutively to the sentence imposed for the revocation.

USSG § 5G1.3 app. note 4(C).

       The district court also noted that a consecutive sentence would be in Defendant’s

interest because of the rehabilitative programs that would be available in federal prison,

which Defendant himself had requested. But we see no reasonable probability that this

rehabilitative potential led the district court to impose a longer sentence than it otherwise

would have. This case is distinguishable from cases where we have held that the

sentencing court’s rehabilitative concerns had an effect on a defendant’s substantial

rights, because in those cases, unlike this case, the court had indicated that it was tailoring

the sentence to make the defendant eligible for rehabilitative services. For example, in

Tidzump, 841 F.3d at 847, the defendant requested a sentence of 18 months, and the

district court “stated that it preferred not to give any prison time” but nonetheless

sentenced the defendant to 31 months because it wanted to ensure that she would qualify

for RDAP. See id. at 845; see also United States v. Mendiola, 696 F.3d 1033, 1042 (10th

Cir. 2012) (substantial rights affected when district court sentenced defendant to “double

the length of the upper limit of the recommended guideline range, for the express purpose

of giving [him] enough time to participate in a 500-hour prison drug and alcohol

rehabilitation program” (brackets and internal quotation marks omitted)). And in United


                                              6
States v. Cordery, 656 F.3d 1103, 1105, 1108 (10th Cir. 2011), the district court

calculated that the minimum sentence that would qualify the defendant for RDAP was 56

months and stated that it was imposing that sentence to faciliate the defendant’s

rehabilitation.

       In contrast, in this case the court sentenced Defendant to the shortest term

recommended by the guidelines and followed the guidelines recommendation that the

sentence be consecutive to his state sentences. The court clearly thought that the

appropriate punishment was 63 months’ incarceration and that giving a concurrent

sentence would undercut that punishment. We therefore conclude that Defendant has not

met his burden of showing that there is a reasonable probability that a Tapia error led to a

longer sentence. See, e.g., United States v. Moore, 514 F. App’x 764, 765-66 (10th Cir.

2013) (unpublished) (defendant failed to show effect on substantial rights when district

court stated that “if I were to give you less than the maximum sentence, what would

happen to you, other than being turned out on the streets at age 85 or 90, with no place to

go,” because court independently justified the sentence as necessary to make a public

statement about respect for the rule of law); United States v. Collins, 461 F. App’x 807,

809-10 (10th Cir. 2012) (Gorsuch, J.) (unpublished) (defendant failed to show effect on

substantial rights when district court stated that “a new prison term would allow him the

chance to benefit from resident prison sex offender treatment programs” because length

of prison term was the statutory maximum and was not tied to eligibility for any

particular treatment program); United States v. Cardenas-Mireles, 446 F. App’x 991,

993-95 (10th Cir. 2011) (unpublished) (defendant failed to show effect on substantial


                                             7
rights when district court stated a downward departure was not appropriate “especially

given [defendant’s] mental and physical condition” and recommended he be placed in a

facility “where he can get the medication and the assistance that he needs to live a fairly

decent life,” because defendant’s health was “an additional justification, but not a

necessary justification” for the sentence); cf. United States v. Naramor, 726 F.3d 1160,

1168–71 (10th Cir. 2013) (no Tapia error despite court’s reference to rehabilitation).

       We AFFIRM Defendant’s sentence.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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