     11-1088-cr
     United States v. Gilliard
 1
 2                      UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6
 7
 8                                 August Term, 2011
 9
10   (Submitted: February 8, 2012                Decided: February 17, 2012)
11
12                               Docket No. 11-1088-cr
13
14
15                               UNITED STATES OF AMERICA,
16
17                                                                  Appellee,
18
19                                        –v.–
20
21                           TROY GILLIARD, AKA T ROY,
22
23                                                       Defendant-Appellant.
24
25
26
27   Before:
28    WESLEY, LOHIER, Circuit Judges, and ROSENTHAL, District Judge.*
29
30        Appeal from a judgment of the United States District
31   Court for the Southern District of New York (Sullivan, J.),
32   following Defendant’s guilty plea to conspiring to
33   distribute and possess with the intent to distribute heroin.
34   The district court sentenced Defendant principally to a term
35   of 96 months’ imprisonment. Defendant contends that the
36   above-Guidelines sentence was procedurally unreasonable
37   because the district court impermissibly based the sentence
38   on his rehabilitative needs. Defendant also challenges the
39   sentence as substantively unreasonable. We hold that the
40   district court did not impose the prison term to promote


           *
            The Honorable Lee H. Rosenthal, of the United States
     District Court for the Southern District of Texas, sitting by
     designation.
 1   Defendant’s rehabilitative needs and that the court’s
 2   discussion of rehabilitation during the sentencing
 3   proceeding was permissible. We conclude that the sentence
 4   was neither procedurally nor substantively unreasonable.
 5
 6       AFFIRMED.
 7
 8
 9
10            Steven M. Statsinger, Federal Defenders of New
11                 York, Inc., Appeals Bureau, New York, NY, for
12                 Defendant-Appellant.
13
14            Niketh Velamoor, Iris Lan, Assistant United States
15                 Attorneys, for Preet Bharara, United States
16                 Attorney for the Southern District of New
17                 York, New York, NY, for Appellee.
18
19
20
21   WESLEY, Circuit Judge:

22       Defendant-Appellant Troy Gilliard appeals from a March

23   9, 2011 judgment of the United States District Court for the

24   Southern District of New York (Sullivan, J.), following his

25   guilty plea to conspiring to distribute and possess with the

26   intent to distribute heroin, in violation of 21 U.S.C.

27   §§ 841(b)(1)(C) and 846.   The district court sentenced

28   Gilliard principally to a term of 96 months’ imprisonment.

29   Gilliard contends that the above-Guidelines sentence was

30   procedurally unreasonable in light of Tapia v. United

31   States, 131 S. Ct. 2382 (2011), because the district court

32   impermissibly based the sentence, at least in part, on his


                                   2
 1   rehabilitative needs.   We disagree and conclude, based on

 2   our review of the record, that the district court did not

 3   impose the prison term to promote Gilliard’s rehabilitative

 4   needs and that the court’s discussion of rehabilitation

 5   during the sentencing proceeding was permissible.     We also

 6   disagree with Gilliard’s contention that the sentence was

 7   substantively unreasonable.   Accordingly, we affirm the

 8   sentence imposed by the district court.

 9       In July 2010, Gilliard was arrested after a series of

10   authorized communication intercepts confirmed that he was

11   involved in heroin trafficking.     On November 12, 2010,

12   Gilliard pled guilty to conspiring to distribute and possess

13   with the intent to distribute heroin, in violation of 21

14   U.S.C. §§ 841(b)(1)(C) and 846.     Under the plea agreement,

15   the parties stipulated that the calculated Sentencing

16   Guidelines range was 57 to 71 months’ imprisonment.

17       In Gilliard’s Presentence Report (“PSR”), the Probation

18   Office made the same calculation.     In arriving at that

19   calculation, the PSR set forth Gilliard’s troubled past.        He

20   had New York state convictions for grand larceny and bail

21   jumping, and a federal conviction for money laundering

22   (related to his involvement in distributing prescription


                                   3
 1   drugs), for which he was sentenced to 100 months’

 2   imprisonment.   Gilliard also had additional prior

 3   convictions for escape, assault, and possession of a

 4   controlled substance, each resulting in either a prison

 5   sentence or fine.     Moreover, Gilliard violated the terms of

 6   his supervised release on multiple occasions.     Most notably,

 7   Gilliard committed the instant offense while on supervised

 8   release.   The Probation Office ultimately recommended a

 9   sentence of 65 months’ imprisonment.

10       Gilliard argued in his sentencing submission that 57

11   months would be sufficient, asserting principally that his

12   involvement in narcotics trafficking stemmed from

13   debilitating medical issues that led him to self-medicate

14   and to sell narcotics.     The government responded that a

15   sentence within the advisory Guidelines range of 57 to 71

16   months was appropriate, given that the instant offense

17   represented Gilliard’s eighth criminal conviction and second

18   narcotics-related federal conviction.

19       At the sentencing proceeding, the district court also

20   calculated the applicable Guidelines range to be 57 to 71

21   months and confirmed that neither party had any objections

22   to the calculation.     In response to defense counsel’s



                                     4
 1   confirmation that Gilliard was asking for a Guidelines

 2   sentence, the district court explained that it could not

 3   reconcile Gilliard’s health struggles stemming from a car

 4   accident and his ensuing efforts to self-medicate with his

 5   prior crimes which preceded and continued after the

 6   accident.

 7       After providing Gilliard an opportunity to address the

 8   court, the district court focused on several sentencing

 9   factors in turn.   With respect to Gilliard’s “extensive

10   criminal history,” the district court took into account the

11   federal conviction for money laundering—which related to

12   drug dealing—and Gilliard’s failed attempts to comply with

13   the terms of supervised release.     The district court again

14   was skeptical of the connection between Gilliard’s efforts

15   to self-medicate and the crime at issue, noting that many

16   people with pain do not resort to selling heroin.     Turning

17   to “the facts and circumstances of the crime,” the district

18   court described the seriousness of the crime of conspiring

19   to sell heroin and suggested that the amount of drugs

20   attributed to Gilliard was relatively small compared to the

21   amount of drugs actually involved.    The district court then

22   addressed the goal of specific deterrence, stating that it


                                   5
 1   sought to impose an appropriate sentence to prevent Gilliard

 2   from committing similar crimes in the future.

 3       Finally, the district court addressed Gilliard’s own

 4   needs while in custody by noting:

 5       I think you obviously had a substance abuse problem.
 6       You obviously also have medical issues that need to
 7       be dealt with.    You also have psychiatric issues
 8       that need to be dealt with and have been dealt with
 9       sort of sporadically over a number of years. But
10       those are important things. And it’s important, as
11       [defense counsel] has requested, that you be
12       sentenced in such a way that you are able to address
13       those problems; that you have access to facilities
14       and care that will enable you to deal with these
15       problems.   So that’s something, obviously, I take
16       very, very seriously, and will, in fashioning my
17       sentence.
18
19   A 124.

20       Before imposing the sentence, the district court

21   explained that all the arguments made by defense counsel in

22   support of a lower sentence were “outweighed by what [the

23   court] consider[ed] to be the high, high likelihood of

24   recidivism and the serious nature of the crime committed and

25   the crimes committed in the past.”   A 125.   The district

26   court concluded that an above-Guidelines sentence was

27   warranted.   Although it had contemplated a 10-year sentence,

28   the district court ultimately decided that an 8-year

29   sentence was appropriate “in light of everything [the court



                                   6
 1   had] talked about.”     A 125-26.   After imposing a term of 96

 2   months’ imprisonment, the district court stated its intent

 3   to recommend to the Bureau of Prisons (“BOP”) that Gilliard

 4   be placed close to family and in a facility with effective

 5   drug treatment programs.

 6       We review a district court’s sentence for

 7   reasonableness.    See, e.g., United States v. Booker, 543

 8   U.S. 220, 261-62 (2005).     Under this “deferential abuse-of-

 9   discretion standard,” we first consider whether the district

10   court committed procedural error.      United States v. Cavera,

11   550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal

12   quotation marks omitted).     A district court “errs

13   procedurally if it does not consider the § 3553(a) factors,

14   or rests its sentence on a clearly erroneous finding of

15   fact.”    Id. at 190.

16       Gilliard argues that the sentence was procedurally

17   unreasonable because the district court violated 18 U.S.C.

18   § 3582(a) by imposing a term of imprisonment to promote his

19   rehabilitative needs.     As a preliminary matter, we note that

20   Gilliard did not raise this argument before the district

21   court, and thus it would normally be subject to plain error

22   review.    See United States v. Villafuerte, 502 F.3d 204, 208


                                     7
 1   (2d Cir. 2007).   In cases such as this one, however, where

 2   the claim is based on an intervening Supreme Court decision,

 3   this Circuit has previously applied a “modified” plain error

 4   review, which requires the government to prove that the

 5   error was harmless.    United States v. Needham, 604 F.3d 673,

 6   678 (2d Cir. 2010).   Although it is unclear whether this

 7   standard continues to apply, see id., we need not decide

 8   between the two standards because under either, we conclude

 9   that the district court committed no error in light of the

10   Supreme Court’s decision in Tapia.

11        In Tapia, the Supreme Court held that 18 U.S.C.

12   § 3582(a) “precludes sentencing courts from imposing or

13   lengthening a prison term to promote an offender’s

14   rehabilitation,” but allows the court to discuss

15   “opportunities for rehabilitation within prison or the

16   benefits of specific treatment or training programs.”     131

17   S. Ct. at 2391-92.    The Court relied on the text of

18   § 3582(a), which provides:

19       The court, in determining whether to impose a term
20       of imprisonment, and, if a term of imprisonment is
21       to be imposed, in determining the length of the
22       term, shall consider the factors set forth in [18
23       U.S.C. § 3553(a)] to the extent that they are
24       applicable, recognizing that imprisonment is not an
25       appropriate means of promoting correction and
26       rehabilitation.   In determining whether to make a

                                    8
 1       recommendation concerning the type of prison
 2       facility appropriate for the defendant, the court
 3       shall consider any pertinent policy statements
 4       issued by the Sentencing Commission pursuant to 28
 5       U.S.C. 994(a)(2).
 6
 7   18 U.S.C. § 3582(a) (emphasis added).     In light of the plain

 8   language of the statute, the Court explained, “when

 9   sentencing an offender to prison, the court shall consider

10   all the purposes of punishment except rehabilitation—because

11   imprisonment is not an appropriate means of pursuing that

12   goal.”     Tapia, 131 S. Ct. at 2389.   The Court also reasoned

13   that because § 3582(a) allows a court to make

14   recommendations concerning rehabilitation, the district

15   court “did nothing wrong . . . in trying to get [the

16   defendant] into an effective drug treatment program.”      Id.

17   at 2392.

18       But the Court concluded, based on excerpts from the

19   sentencing transcript, that the district court may have

20   selected the length of the sentence to ensure that the

21   defendant could complete a 500-hour drug treatment program.

22   Id. at 2392-93.     Most notably, the district court explained

23   that “[t]he sentence has to be sufficient to provide needed

24   correctional treatment,” and that the defendant should be

25   “in long enough to get the 500 Hour Drug Program.”      Id. at


                                     9
 1   2385.    These statements, according to the Court, suggested

 2   that the district court did more than what was permissible

 3   under § 3582(a).1   Id. at 2393.

 4        Gilliard contends that the district court erred in

 5   considering Gilliard’s “own needs while in custody” in

 6   imposing the sentence.    Gilliard focuses on two statements

 7   made by the district court to argue that the sentence was

 8   unlawfully imposed in light of Tapia.     First, the district

 9   court explained that it was “important, as [defense counsel]

10   has requested, that [Gilliard] be sentenced in such a way

11   that [he is] able to address those [substance abuse,

12   medical, and psychiatric] problems.”     A 124.   Second, the

13   district court concluded that eight years “is the

14   appropriate sentence in light of everything [the judge had]

15   talked about.”    A 125-26.

          1
            Justice Sotomayor, joined by Justice Alito, concurred to
     express her skepticism that the district court imposed or
     lengthened the defendant’s sentence to promote rehabilitation.
     Tapia, 131 S. Ct. at 2393-94 (Sotomayor, J., concurring). She
     noted that the district court carefully reviewed the sentencing
     factors set forth in § 3553(a) and offered two reasons for
     choosing the sentence: the need for drug treatment and
     deterrence. Id. at 2393. With respect to the latter reason, the
     district court highlighted the defendant’s criminal history and
     criminal conduct while released on bail. Id. at 2393-94.
     Notwithstanding her skepticism, Justice Sotomayor concluded that
     she could not be certain that the district court did not lengthen
     the defendant’s sentence to promote rehabilitation in violation
     of § 3582(a), and thus agreed with the Court’s disposition of the
     case. Id. at 2394.

                                    10
 1       Unlike in Tapia, the record here does not suggest that

 2   the length of Gilliard’s sentence was based on the district

 3   court’s consideration of his rehabilitative needs.

 4   Instead, the district court permissibly applied the

 5   applicable sentencing factors under § 3553(a), addressing

 6   (1) Gilliard’s extensive criminal history and failures to

 7   comply with the terms of his supervised release; (2) the

 8   facts and circumstances of Gilliard’s drug-related crime;

 9   and (3) the goal of deterrence and Gilliard’s high

10   likelihood of recidivism.

11       The sentencing in Tapia was improper because the

12   district court explicitly stated that the defendant needed a

13   sentence long enough so that she could participate in the

14   500-hour drug treatment program.   Here, there is no

15   indication that the district court tied the length of the

16   sentence to any treatment Gilliard would receive.      To the

17   contrary, whenever the district court discussed Gilliard’s

18   rehabilitative needs, it did so in the context of

19   recommending to the BOP appropriate treatment programs he

20   should receive while in custody—not with regard to whether

21   he should spend more time in prison for treatment purposes.

22   The district court’s recommendations—including that Gilliard


                                  11
 1   have access to facilities and care that would enable him to

 2   deal with his problems—were well within what the Supreme

 3   Court deemed permissible in Tapia.    See Tapia 131 S. Ct. at

 4   2392.

 5       Our conclusion is consistent with our recent

 6   application of Tapia, as well as the decisions of several

 7   other circuits finding that, notwithstanding discussion of

 8   rehabilitation in the record, there was no error where the

 9   sentence length was based on permissible considerations,

10   such as criminal history, deterrence, and public protection.

11   See United States v. Magner, No. 11-0751-cr, 2012 WL 206013,

12   at *2 (2d Cir. Jan. 25, 2012); see also United States v.

13   Tolbert, ---F.3d----, 2012 WL 413806, at *5 (6th Cir. 2012);

14   United States v. Blackmon, 662 F.3d 981, 987 (8th Cir.

15   2011); United States v. Cardenas-Mireles, No. 11-2138, 2011

16   WL 6394280, at *3 (10th Cir. Dec. 21, 2011); United States

17   v. Gregg, No. 11-12144, 2011 WL 5248165, at *1 (11th Cir.

18   Nov. 3, 2011).

19       To be sure, our sister circuits in several other recent

20   cases have found error where the record revealed that the

21   defendant’s rehabilitative needs influenced the length of

22   imprisonment.    In United States v. Cordery, 656 F.3d 1103


                                    12
 1   (10th Cir. 2011), the Tenth Circuit found error in the

 2   sentence when the district court commented that, after

 3   taking into account the time that the defendant had already

 4   served, the defendant “need[ed] a sentence of at least 56

 5   months to be able to successfully complete that [treatment]

 6   program together with mental health counseling.”    Id. at

 7   1105.   In United States v. Himes, 439 F. App’x 272 (4th Cir.

 8   2011), the Fourth Circuit held that the district court

 9   impermissibly considered the defendant’s need for

10   rehabilitation when the district court noted that an

11   increased sentence of 34 months would “provide enough time

12   for [the defendant] to be admitted to the [500-hour

13   residential drug] program and complete that program.”    Id.

14   at 274-75.   Finally, in United States v. Kubeczko, 660 F.3d

15   260 (7th Cir. 2011), the Seventh Circuit held that the

16   defendant was entitled to resentencing after the district

17   court explained that “[a] stay in the Bureau of Prisons of a

18   significant length [was] necessary in order for [the

19   defendant] to get the Bureau of Prisons’ inpatient treatment

20   program.”    Id. at 261.

21       A common theme exists between Tapia and those cases in

22   which our sister circuits found error—in all four cases, the


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 1   sentencing judge explicitly tied the need to impose a

 2   sentence of particular length to the defendant’s ability to

 3   participate in a drug treatment program.    That connection is

 4   missing here.   Rather, the record indicates that Gilliard’s

 5   sentence was based on, among other permissible reasons, his

 6   extensive criminal history.   The district court discussed

 7   Gilliard’s rehabilitation only in the context of making its

 8   recommendations to the BOP, and in so doing, did no more

 9   than what was deemed permissible in Tapia.    Accordingly,

10   Gilliard’s claim of procedural unreasonableness fails.

11        Gilliard also challenges the substantive

12   reasonableness of his sentence.    In reviewing that claim, we

13   “take into account the totality of the circumstances, giving

14   due deference to the sentencing judge’s exercise of

15   discretion, and bearing in mind the institutional advantages

16   of district courts.”   Cavera, 550 F.3d at 190.   “[W]e will

17   not substitute our own judgment for the district court’s on

18   the question of what is sufficient to meet the § 3553(a)

19   considerations in any particular case.”    Id. at 189.

20   Rather, we will “set aside a district court’s substantive

21   determination only in exceptional cases where the trial

22   court’s decision ‘cannot be located within the range of


                                   14
 1   permissible decisions.’”     Id. (quoting United States v.

 2   Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

 3       Gilliard contends that his sentence was substantively

 4   unreasonable because the district court gave too much weight

 5   to his criminal history and the offense conduct itself.

 6   Gilliard also argues that the district court undervalued his

 7   poor mental and physical health and the relationship between

 8   his substance abuse problem and his criminal conduct.      We

 9   disagree.

10       The district court properly considered, and was well

11   within its discretion to give great weight to, (1)

12   Gilliard’s extensive criminal history and failed attempts to

13   comply with terms of his supervised release; (2) the facts

14   and circumstances of his crime; and (3) his high likelihood

15   of recidivism and the need to deter him from committing

16   future crimes.   Moreover, the district court thoroughly

17   considered Gilliard’s personal circumstances and adequately

18   explained why it could not reconcile them with his prior

19   crimes and the instant offense.      We find no reason to second

20   guess the weight (or lack thereof) that the district court

21   accorded to these factors.     See United States v. Fernandez,

22   443 F.3d 19, 34 (2d Cir. 2006); see also Cavera, 550 F.3d at


                                     15
 1   191.    The district court did not err in determining that

 2   Gilliard’s personal circumstances were outweighed by the

 3   high likelihood of recidivism and the serious nature of his

 4   crimes.

 5          Taking into account the totality of the circumstances,

 6   the 96-month term of imprisonment was not “shockingly high

 7   . . . or otherwise unsupportable as a matter of law.”

 8   United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

 9   Thus, the sentence was substantively reasonable.

10          For the foregoing reasons, the judgment of the district

11   court is hereby AFFIRMED.




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