                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4032


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JUSTIN C. BUNTING,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Terrence W. Boyle, District Judge. (2:16-mj-01115-BO-1)


Submitted: May 8, 2017                                            Decided: May 30, 2017


Before SHEDD, KEENAN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States
Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Barbara D.
Kocher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Justin C. Bunting appeals the 12-month sentence imposed following his guilty plea

to being “under the influence of alcohol/drugs to a degree that endangers

self/others/property,” in violation of 36 C.F.R. § 2.35(c) (2015), and possession of a

controlled substance, in violation of 36 C.F.R. § 2.35(b)(2) (2015). Bunting contends that

the district court violated the rule established in Tapia v. United States, 564 U.S. 319

(2011), by improperly basing its sentencing decision on its concern for Bunting’s

rehabilitative needs. We agree.

       Where, as here, a defendant presents a claim for the first time on appeal, we review

only for plain error. United States v. McNeal, 818 F.3d 141, 148 (4th Cir.), cert. denied,

137 S. Ct. 164 (2016). To demonstrate plain error, a defendant must show “that there was

an error, the error was plain, and the error affected his substantial rights.” United States v.

Mills, 850 F.3d 693, 696 (4th Cir. 2017) (brackets and internal quotation marks omitted).

Even where a defendant satisfies these requirements, we need only correct the error if it

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

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks

omitted).

       “Tapia stands for the proposition that a court cannot impose or lengthen a sentence

to ensure that a defendant can complete a training or rehabilitation program.” United States

v. Alston, 722 F.3d 603, 609 (4th Cir. 2013); see 18 U.S.C. § 3582(a) (2012). It does not,

however, “prevent a district court from considering rehabilitation in the course of a

sentencing proceeding.” United States v. Lemon, 777 F.3d 170, 173 (4th Cir. 2015)

                                              2
(brackets and internal quotation marks omitted). Ultimately, “the presence of Tapia error

turns on whether a sentencing court’s reference to rehabilitative needs is causally related

to the length of the sentence.” Id. at 174 (brackets and internal quotation marks omitted).

       Bunting was charged after he was discovered unconscious on a beach, lying on or

near needles, a vial of pills, and a scorched spoon containing a white substance. At

sentencing, the district court repeatedly referenced the prospect of Bunting’s early death,

telling Bunting’s mother, “You understand that if he gets out he’s going to die. He can’t

take care of himself, and you apparently can’t take care of him. . . . He’ll be dead in a

month if he goes out.” In explaining its decision to sentence Bunting to a term of

imprisonment, the court stated:

       Well, my considered judgment is to not prolong this, that . . . he needs to be
       in the BOP and not in the county jail, and he needs to be in there as soon as
       possible. And he needs to be in there for as long as he can be in there, and
       he needs to be referred to substance abuse examination and treatment while
       he’s in the BOP. I don’t think a county facility or a state run facility is going
       to provide him any of the acute care that he needs in order to save his life.

Defense counsel then noted that FCI Butner has “substantial treatment facilities,” and the

court responded, “I’m going to hopefully send [Bunting] to Butner, and hopefully the BOP

will accept him, and hopefully he’ll get mental health intervention and drug abuse

intervention, because I think his life is in immediate danger of him dying from what he’s

been doing.” Bunting assured the court that he wanted to help himself, and the court

replied, “You can’t help yourself on the outside. . . . I’m going to give you an opportunity

to have 12 months of sobriety, which you haven’t had since you were a young boy. It’s

the only thing that will save your life.”


                                              3
       The record clearly reflects that the district court determined to imprison Bunting in

order to provide him access to substance abuse treatment. This was error. See United

States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012). Because Tapia was settled law at the

time Bunting was sentenced, the error was plain. See United States v. White, 836 F.3d 437,

446-47 (4th Cir. 2016) (articulating standard for plainness).

       “In the sentencing context, the third prong of the plain-error standard is satisfied if

there is a non-speculative basis in the record to conclude that the district court would have

imposed a lower sentence upon the defendant but for the error.” United States v. McLaurin,

764 F.3d 372, 388 (4th Cir. 2014) (internal quotation marks omitted); see United States v.

Tidzump, 841 F.3d 844, 847 (10th Cir. 2016) (finding Tapia error affected substantial rights

because “compliance with Tapia would likely have led to a shorter sentence”).

       The district court imposed two consecutive six-month sentences—the maximum for

the misdemeanors of which Bunting was convicted. See 36 C.F.R. § 1.3(a) (2015). While

sentencing courts “have discretion to select whether the sentences they impose will run

concurrently or consecutively with respect to other sentences that they impose,” Setser v.

United States, 566 U.S. 231, 236 (2012), terms of imprisonment imposed at the same time

are to run concurrently unless otherwise ordered by the court. See 18 U.S.C. § 3584(a)

(2012); United States v. Deffenbaugh, 709 F.3d 266, 275 (4th Cir. 2013). Although not

explicitly stated, the district court’s decision to impose the sentences consecutively

apparently resulted from its intention to send Bunting to a federal prison “for as long as he

can be in there.” Absent any alternative rationale, we are compelled to conclude that the

Tapia error affected Bunting’s substantial rights. Cf. Bennett, 698 F.3d at 201 (holding

                                              4
that Tapia error did not affect substantial rights where defendant’s “rehabilitative needs

clearly constituted only a minor fragment of the court’s reasoning”). Moreover, we find

that the error affected the fairness, integrity, or public reputation of the sentencing

proceeding. See Tidzump, 841 F.3d at 847-48 (noticing Tapia error resulting in 40 per cent

sentencing increase); United States v. Garza, 706 F.3d 655, 663 (5th Cir. 2013) (noticing

Tapia error resulting in sentence nearly three times greater than Guidelines maximum);

United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012) (noticing Tapia error

resulting in sentence two times greater than Guidelines maximum). *

      Accordingly, we vacate Bunting’s sentence and remand for resentencing. We deny

as moot Bunting’s motions to expedite. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

                                                           VACATED AND REMANDED




      *
        We acknowledge that the district court “probably [did] something very right” in
attempting to provide Bunting with access to substance abuse treatment; the court
nevertheless erred, however, in solely predicating its sentencing decision on this
consideration. Tapia, 564 U.S. at 334.

                                            5
