                        REVISED March 28, 2013

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

                                                                 FILED
                                  No. 11-10917                 March 22, 2013

                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                           Clerk


                                            Plaintiff-Appellee,
v.

TODD MITCHELL CULBERTSON,

                                            Defendant-Appellant.



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


Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Todd Mitchell Culbertson (“Culbertson”) appeals his
revocation sentence because he contends that the district court impermissibly
based the length of the sentence on the court’s perception of his rehabilitative
needs, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011). The district
court sentenced Culbertson to 30 months imprisonment, followed by 113 days in
a residential reentry program, which was above his advisory guideline range of
5 to 11 months imprisonment. We conclude that the district court based
Culbertson’s sentence on its perception of the defendant’s rehabilitative needs.
We therefore VACATE the sentence and REMAND for resentencing.
                                 No. 11-10917

           I. FACTUAL AND PROCEDURAL BACKGROUND
      In January 2001, Culbertson pled guilty to possession with intent to
distribute methamphetamine. The district court sentenced him to 87 months of
imprisonment, followed by 5 years of supervised release. After his release from
prison, Culbertson violated his conditions of supervised release by using and
possessing methamphetamine on six separate occasions, using and possessing
marijuana, and failing to complete his 120-day residential reentry program by
failing to report after 7 days. At the revocation hearing on September 22, 2011,
the recommended guideline range of imprisonment was 5 to 11 months. Defense
counsel argued for a within-guidelines sentence, emphasizing that Culbertson
had struggled with a drug problem intermittently but had been relatively
successful while on supervised release for several years, and that his failure to
report timely to the residential reentry program was justified. He concluded by
stating that he would “object to anything above the guideline sentence as
substantively and procedurally reasonable.” The district court found Culbertson
in violation of his supervised release and revoked same.
      Prior to imposing the sentence, the district court noted, “The United States
Sentencing Commission policy statements contained in Chapter 7 of the
guidelines manual regarding supervised release violations have been duly
considered.” The district court then sentenced Culbertson outside the guideline
range to 30 months of imprisonment, followed by the remaining 113 days of the
residential reentry program that the court previously imposed. The district
court further ordered that, upon release from imprisonment, Culbertson was to
serve 15 months of additional supervised release, with the same terms and
conditions as his prior term of supervision. The district court also ordered that
the sentence would run consecutively to any sentence imposed in Culbertson’s
pending state court case. The district court concluded imposition of the sentence
by stating, “While under supervision, Mr. Culbertson committed the violations


                                        2
                                   No. 11-10917

of using and possessing methamphetamine and marijuana and failing to
complete 120 days at the Volunteers of America. A sentence of 30 months and
113 days will serve as punishment and deterrence from further criminal activity.
I have now stated the sentence.”
      The district court then solicited the parties’ objections to the sentence.
Defense counsel objected to the “substantive and procedural reasonableness of
the sentence,” and to the sentence running consecutively to any sentence
imposed in the state court case. The district court overruled both objections
without further comment.
      The district court then told Culbertson:
             Now, Mr. Culbertson, I am not angry at you, and I’m
             not ordering this sentence because I want to be punitive
             or to hurt you. What I’m trying to do here is give you a
             period of time where you can, once again, get clean and
             sober and stay clean and sober and come out after you
             serve your sentence and stop using drugs and stay on
             your meds.

             I can see you’re an intelligent guy. You’re competent
             and you’re capable, but, apparently, you have to stay on
             your meds to do that, and I’m told that when you’re out,
             you don’t really stay on your meds, and that causes a
             cycle of problems. So I want you to work on that while
             you’re in the [Bureau of Prisons (“BOP”)].

      Then, after discussing with Culbertson whether he might benefit from the
BOP’s 500-hour drug program, the district court said, “I want you to be provided
with housing, and I want you to be taken care of while you get yourself together
and prepare yourself for reentry into society, and I’ve put you on 15 more months
of supervised release so we can help you do that.” The district court added as
explanation, “And so that we can also monitor you, because if you’re not going
to stop using drugs and stop being a threat to society, we’ll have to keep sending
you back.”


                                        3
                                        No. 11-10917

      Defense counsel then asked the court why it was imposing a sentence in
excess of the guideline range:
               [DEFENSE COUNSEL]: Is there a need to triple the
               guidelines, Your Honor? I’m not being disrespectful to
               Your Honor. I’m just asking why so much time?

               THE COURT: 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.

      Culbertson timely filed a notice of appeal.
                                     II. DISCUSSION
A.    Tapia v. United States
      In Tapia v. United States, a unanimous Supreme Court held that a district
court “may not impose or lengthen a prison sentence to enable an offender to
complete a treatment program or otherwise to promote rehabilitation.” 131 S.
Ct. 2382, 2393 (2011). In so holding, the Court noted that 18 U.S.C. § 3582(a)
“precludes sentencing courts from imposing or lengthening a prison term to
promote an offender’s rehabilitation.” Id. at 2391 (citing 18 U.S.C. § 3582(a)).
The Court relied on the plain language of 18 U.S.C. § 3582(a), which provides
that, when a sentencing court is determining whether to impose a term of
imprisonment and the length of that term, it “shall consider the factors set forth
in [18 U.S.C.] section 3553(a)1 to the extent that they are applicable, recognizing

      1
          These “§ 3553(a) factors” include:

               (1) the nature and circumstances of the offense and the history
               and characteristics of the defendant;
               (2) the need for the sentence imposed–
                       (A) to reflect the seriousness of the offense, to promote
                       respect for the law, and to provide just punishment for the
                       offense;
                       (B) to afford adequate deterrence to criminal conduct;
                       (C) to protect the public from further crimes of the
                       defendant; and

                                               4
                                      No. 11-10917

that imprisonment is not an appropriate means of promoting correction and
rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added).                   Interpreting this
statutory language, the Court reasoned, “what Congress said was that when
sentencing an offender to prison, the court shall consider all the purposes of
punishment except rehabilitation—because imprisonment is not an appropriate
means of pursuing that goal.” Tapia, 131 S. Ct. at 2389.
       On the other hand, Tapia also stated that “[a] court commits no error by
discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs.” Id. at 2392. “To the contrary, a court
properly may address a person who is about to begin a prison term about these
important matters” and “may urge the BOP to place an offender in a prison
treatment program.” Id. Thus, Tapia recognized a distinction between imposing
or lengthening a prison sentence based on rehabilitative needs and merely
discussing opportunities for rehabilitation while in prison.
       During the initial sentencing in Tapia, the district court stated, “The
sentence has to be sufficient to provide needed correctional treatment, and here
I think the needed correctional treatment is the 500 Hour Drug Program.” Id.
at 2385, 2392. The district court again stated that the “‘number one’ thing ‘is the
need to provide treatment. In other words, so [the defendant] is in long enough


                      (D) to provide the defendant with needed educational or
                      vocational training, medical care, or other correctional
                      treatment in the most effective manner;
              (3) the kinds of sentences available;
              (4) the kinds of sentence and the sentencing range established .
              ..
              (5) any pertinent policy statement [of the U.S. Sentencing
              Commission] . . .
              (6) the need to avoid unwarranted sentence disparities among
              defendants with similar records who have been found guilty of
              similar conduct; and
              (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

                                              5
                                       No. 11-10917

to get the 500 Hour Drug Program.’” Id. at 2392-93. The Supreme Court
concluded:     “These statements suggest that the [district] court may have
calculated the length of Tapia’s sentence to ensure that she receive certain
rehabilitative services. And that a sentencing court may not do.” Id. at 2393.
Importantly, Justice Sotomayor’s concurring opinion in Tapia discussed at
length the fact that the sentencing judge carefully weighed all of the § 3553(a)
factors, not just the defendant’s need for rehabilitation.2 Id. (Sotomayor, J.,
concurring).
       On this record, the Supreme Court vacated and remanded the matter to
the Ninth Circuit, holding that the district court may have lengthened the
defendant’s sentence impermissibly in order to make her eligible for the BOP’s
500-hour drug treatment program.3 Tapia, 131 S. Ct. at 2392-93.
B.     Post-Tapia
       We have applied the Tapia rule to vacate initial sentences post-conviction
where the district court explicitly relied on the defendant’s need for
rehabilitation in imposing or lengthening a sentence. See, e.g., United States v.
Broussard, 669 F.3d 537, 555 (5th Cir. 2012); United States v. Escalante-Reyes,
689 F.3d 415, 423-24 (5th Cir. 2012) (en banc). Until our recent decision in
United States v. Garza, however, it was an open question in this circuit whether

       2
         For example, Justice Sotomayor highlighted that the sentencing judge considered,
inter alia:

              “[t]he nature and circumstances of the offense”. . . emphasiz[ing]
              that Tapia’s criminal conduct “created a substantial risk of death
              or serious bodily injury” to the smuggled aliens. . . . He noted his
              particular concern about Tapia’s criminal conduct while released
              on bail, when she failed to appear and was found in an apartment
              with methamphetamine, a sawed-off shotgun, and stolen mail[.]

Tapia, 131 S. Ct. at 2393 (Sotomayor, J., concurring) (internal citations omitted).
       3
         The Court left “it to the Court of Appeals to consider the effect of Tapia’s failure to
object to the sentence when imposed.” Id. at 2393.

                                               6
                                        No. 11-10917

Tapia applied to terms of imprisonment imposed upon the revocation of
supervised release, as opposed to the original sentencing.4 See United States v.
Garza, 706 F.3d 655, 657-59 (5th Cir. 2013).                  In Garza, we held that “a
sentencing court may not consider rehabilitative needs in imposing or
lengthening any term of imprisonment,” including for revocations of supervised
release. Id. at 659 (emphasis added). In so holding, we “join[ed] the uniform
post-Tapia case law in our sister circuits,” including the First, Fourth, Eighth,
Ninth, and Tenth Circuits.5 See id. at 657 & n.5 (citations omitted).
       Garza clarified that, while 18 U.S.C. § 3582(a) proscribes the consideration
of a defendant’s rehabilitative needs when imposing a sentence, “this does not
mean . . . that a district court may make no reference to the rehabilitative
opportunities available to a defendant.” Id. at 659 (citing Tapia, 131 S. Ct. at
2392 (stating that “[a] court commits no error by discussing the opportunities for
rehabilitation within prison or the benefits of specific treatment or training
programs”)). Garza noted that “[a] district court also may legitimately ‘urge the
[Bureau of Prisons] to place an offender in a prison treatment program.’” Id.
(second alteration in original) (quoting Tapia, 131 S. Ct. at 2392). “However,


       4
          Although we held in United States v. Breland that, despite Tapia, a district court
could use rehabilitation concerns to determine a revocation sentence, the Supreme Court
vacated and remanded that decision for resentencing. See United States v. Breland, 647 F.3d
284, 290 (5th Cir. 2011) (“Breland I”), vacated by Breland v. United States, 132 S. Ct. 1096
(2012). The Supreme Court vacated Breland I in light of the Solicitor General’s brief, which
acknowledged the Government’s change of position agreeing with the defendant that Tapia
applies in the revocation context. Breland, 132 S. Ct. at 1096. On remand, we noted that the
Government agreed with the First and Ninth Circuits that district courts may not lengthen
a revocation sentence based on rehabilitative needs. United States v. Breland, 463 F. App’x
376, 376-77 (5th Cir. 2012) (per curiam) (unpublished) (“Breland II”) (citing United States v.
Molignaro, 649 F.3d 1, 5 (1st Cir. 2011) (Souter, J. (ret.), sitting by desig.); United States v.
Grant, 664 F.3d 276, 282 (9th Cir. 2011)). Thus, we remanded to the district court for
resentencing. Id. at 377.
       5
        See Molignaro, 649 F.3d at 5; United States v. Bennett, 698 F.3d 194, 197 (4th Cir.
2012); United States v. Taylor, 679 F.3d 1005, 1006 (8th Cir. 2012); Grant, 664 F.3d at 282;
United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012).

                                               7
                                       No. 11-10917

when the district court’s concern for rehabilitative needs goes further—when the
sentencing record discloses ‘that the court may have calculated the length of [the
defendant’s] sentence to ensure that she receive certain rehabilitative services’—
§ 3582(a) has been violated.” Id. at 659-60 (quoting Tapia, 131 S. Ct. at 2393).
Garza further observed that “[o]ur limited precedent post-Tapia has described
the distinction between legitimate commentary and inappropriate consideration
as whether rehabilitation is a “secondary concern” or “additional justification”
(permissible) as opposed to a “dominant factor” (impermissible) informing the
district court’s decision.” Id. at 660 (citing United States v. Receskey, 699 F.3d
807, 810, 812 (5th Cir. 2012) (finding no Tapia error where the district court
discussed the potential rehabilitation services available only after discussing its
unrelated reasons for selecting the length of the defendant’s sentence);
Broussard, 669 F.3d at 545, 551-52 (finding Tapia error where the district court
described the defendant as “need[ing] help badly” and “sick in the head,” and it
emphasized “the need to incarcerate [the defendant] for the treatment that he
needs”)).
       The district court in Garza imposed a sentence of 24 months’
imprisonment, where Garza’s advisory guideline range was 3 to 9 months. Id.
at 660-62. We concluded that the district court impermissibly relied on the
defendant’s rehabilitative needs, based on its statements that Garza “‘should be
required [or] at least be given an opportunity to participate in that residential
institution drug treatment program’ in order to ‘get [Garza] straightened out.’”6
Id. at 660-61 (alterations in original). The district court stated that it would not
give Garza enough time for a long term program “because I don’t think he really
needs that again. I think some of these shorter term programs ought to be


       6
         In a dissenting opinion, Judge Haynes agreed with the panel majority that Tapia
applied to revocation sentences, but she disagreed with the conclusion that the district court
in Garza committed Tapia error. See Garza, 706 F.3d at 663-64 (Haynes, J., dissenting).

                                              8
                                  No. 11-10917

enough for him. . . . I’m hoping a 24 month term of imprisonment followed by a
24 month term of supervised release will be enough.” Id. at 661-62. Accordingly,
we concluded that, although the court might have been inclined to impose some
upward departure in light of Garza’s conduct, “Garza’s rehabilitative needs were
the dominant factor in the court’s mind.” Id. at 662. We therefore vacated the
sentence and remanded for resentencing. Id. at 663.
C.    Application of Tapia to Culbertson’s Case
      The Government argues that the district court did not violate Tapia
because the court did not lengthen Culbertson’s sentence based on rehabilitative
needs. We disagree.
      The district court expressly stated its reason for giving Culbertson three
times the guidelines range:
            [DEFENSE COUNSEL]: Is there a need to triple the
            guidelines, Your Honor? I’m not being disrespectful to
            Your Honor. I’m just asking why so much time?

            THE COURT: 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.

Additionally, the district court explained on several occasions that its purpose
in imposing the sentence was to provide Culbertson with enough time for
rehabilitation. After the district court imposed its sentence and defense counsel
objected, the court stated, “I’m not ordering this sentence because I want to be
punitive or to hurt you.” Rather, the district court stated, “What I’m trying to
do here is give you a period of time where you can, once again, get clean and sober
and stay clean and sober and come out after you serve your sentence and stop
using drugs and stay on your meds.”          While the district court expressly
referenced the policy statements in Chapter Seven of the Sentencing Guidelines
and stated that it was imposing a sentence “as punishment and deterrence from

                                        9
                                        No. 11-10917

further criminal activity,”7 its other statements on the record evidence that a
“dominant factor” in imposing the sentence was Culbertson’s need for
rehabilitation.      See Garza, 706 F.3d at 662 (determining that “Garza’s
rehabilitative needs were the dominant factor in the court’s mind”); cf. Receskey,
699 F.3d at 811 (concluding that the district court’s “concern over rehabilitation
may have been an ‘additional justification,’ but it was not a ‘dominant’ factor in
the court’s analysis”).
       In these ways, this case is similar to Broussard, where we concluded that
the district court erred in determining the defendant’s sentence by relying on his
need for treatment to address his sexual fantasies involving minors and his
inclinations to engage in such sexual conduct. See Broussard, 669 F.3d at 552.
Notably, the district court addressed all of the 18 U.S.C. § 3553(a) factors, but
it also specifically made statements that Broussard “is sick in the head,” “needs
help badly,” and “is in need of education pertaining to his problems and he needs
medical care and treatment.” Id. at 544-45, 552. We held that the district court




       7
          We also note that the district court may have relied on “punishment” improperly as
a justification for the sentence in this case. See United States v. Miller, 634 F.3d 841, 843-44
(5th Cir. 2011), cert. denied, 132 S. Ct. 496 (2011) (holding that it is improper for a district
court to rely on, inter alia, the need “to provide just punishment for the offense” in determining
a revocation sentence where the relevant statute, 18 U.S.C. § 3583(e), omits this
consideration). While Culbertson raises this issue in passing in his opening brief, he did not
object to any potential error on this ground before the district court. Under plain-error review,
we conclude that, while the district court plainly erred, this error did not affect Culbertson’s
substantial rights. See Broussard, 669 F.3d at 555 (noting that, to demonstrate reversible
plain error, the defendant must show “(1) error (2) that is plain and (3) that affects his
substantial rights” ) (citations omitted). “To be ‘plain,’ legal error must be ‘clear or obvious,
rather than subject to reasonable dispute.’” Id. (citations omitted). “To affect the defendant’s
substantial rights, the defendant must demonstrate that the error affected the outcome of the
district court proceedings.” Id. (citations omitted). Here, the error was plain, given our Miller
decision. See Miller, 634 F.3d at 843-44. However, the sentencing court only made passing
reference to the need for “punishment” in sentencing Culbertson. Thus, we conclude that the
court’s mere mention of this impermissible factor did not affect Culbertson’s substantial rights
because the factor did not impact the district court proceedings.

                                               10
                                       No. 11-10917

committed Tapia error in spite of the district court’s consideration of the §
3553(a) factors:
              We do not dispute that the district court considered
              other permissible factors in explaining its chosen
              sentence for Broussard; however, it is also quite
              apparent from the transcript of the sentencing that the
              district court imposed a sentence—a three hundred
              percent increase over the guidelines range—based on
              the court’s belief that Broussard was “sick in the head”
              and in need of treatment.
Broussard, 669 F.3d at 555.
       Accordingly, we reject the Government’s argument that the district court
here did not lengthen Culbertson’s sentence based on his rehabilitative needs
because it also referenced its reasons as “deterrence,” “punishment,” and the
need to prevent Culbertson from being a “threat to society.” Justice Sotomayor’s
concurring opinion in Tapia further supports this conclusion: it demonstrates
that the district court, tracking the § 3553(a) statutory factors, provided multiple
reasons for Tapia’s sentence, and the Supreme Court still vacated the sentence
because the district court may have relied on the defendant’s rehabilitative
needs.8 Tapia, 131 S. Ct. at 2393. Evidently, in both Broussard and Tapia, the
sentencing courts expressly considered the § 3553(a) factors at much greater
length than the sentencing court here, but both we and the Supreme Court
vacated the sentences and remanded for resentencing nonetheless. Again, when
defense counsel specifically asked the district court why it was exceeding
Culbertson’s guideline range threefold, the court made its reasoning clear: “I


       8
         By contrast, Justice Sotomayor, who was joined by Justice Alito, expressed skepticism
over the Court’s finding that the district court may have lengthened the defendant’s sentence
based on the defendant’s rehabilitative needs. Tapia, 131 S. Ct. at 2394. However, she
concluded, “I cannot be certain that [the sentencing judge] did not lengthen Tapia’s sentence
to promote rehabilitation in violation of § 3582(a). I therefore agree with the Court’s
disposition of this case [vacating the sentence and remanding for resentencing] and join the
Court’s opinion in full.” Id. (emphasis added).

                                             11
                                    No. 11-10917

think you need that time to get yourself stabilized.” Accordingly, the district
court’s words are the best evidence of why it did what it did, and they
overshadow its passing reference to deterrence, punishment, and the threat
Culbertson posed to society.
      We also reject the Government’s suggestion that a district court
impermissibly relies on rehabilitative needs only when the court refers to a
specific treatment program as its reason for the length of the sentence. While
several cases, including Tapia, have involved a district court imposing a
sentence of a specific length in part to make the defendant eligible for a certain
program, we do not read Tapia as requiring this element. To the contrary, Tapia
clearly held that a district court “may not impose or lengthen a prison sentence
to enable an offender to complete a treatment program or otherwise to promote
rehabilitation.” Tapia, 131 S. Ct. at 2393 (emphasis added). Thus, it is clear to
us that the Tapia rule contemplates methods that “otherwise . . . promote
rehabilitation” beyond facilitating eligibility for a specific treatment program.
See id.
D.    Plain-Error Review
      Having concluded that the district court erred, we must determine
whether that error is reversible. We agree with the Government that defense
counsel’s objection for “substantive and procedural unreasonableness” before the
district court was ineffective to preserve the error alleged here. Thus, we review
for plain error. Broussard, 669 F.3d at 553.
      To demonstrate reversible plain error, Culbertson must show “(1) error
(2) that is plain and (3) that affects his substantial rights.” Id. (citation omitted).
“To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to
reasonable dispute.’” Id. (citations omitted).         “To affect the defendant’s
substantial rights, the defendant must demonstrate that the error affected the
outcome of the district court proceedings.” Id. (citations omitted). Finally, under

                                          12
                                  No. 11-10917

the fourth prong of plain-error review, “[w]e will exercise our discretion to
correct plain error if it seriously affected the fairness, integrity, or public
reputation of the judicial proceeding.” Id. (citation omitted). As we already have
determined that the district court erred, we focus our analysis on the second,
third, and fourth prongs.
      As to the second prong, we conclude that the error was plain in light of our
recent decision in Garza. See Escalante-Reyes, 689 F.3d at 423 (holding that,
“where the law is unsettled at the time of trial but settled by the time of appeal,
the ‘plainness’ of the error should be judged by the law at the time of appeal”).
      In the sentencing context, the third prong requires that the defendant
demonstrate a “reasonable probability” that, but for the district court’s error, he
would have received a lesser sentence. United States v. Dickson, 632 F.3d 186,
191 (5th Cir. 2011) (citation omitted).       Here, the error clearly affected
Culbertson’s substantial rights, as the district court’s emphasis on his
rehabilitative needs affected the outcome of the sentencing. The district court
gave Culbertson a sentence that was three times his guideline range and
repeatedly referred to Culbertson’s need for rehabilitation, including after
defense counsel specifically questioned why the sentence exceeded the guideline
range three-fold. These facts are similar to those in Escalante-Reyes, where, in
response to the defense counsel’s objection to the length of the sentence, “the
district court mentioned only two things: Escalante–Reyes’s quick return to the
United States and that ‘[h]e has a problem with his anger management. He has
things that need to be addressed.’” Escalante-Reyes, 689 F.3d at 423. Therefore,
Culbertson’s need for rehabilitation was “such a central part of the district
court’s explanation of [Culbertson’s] sentence that ‘we cannot confidently say
that the district court would have imposed the same sentence’ without it.” Id.
at 424 (citation omitted).



                                        13
                                  No. 11-10917

      As to the fourth prong, we recognized in Escalante-Reyes that we respect
the sentencing court’s discretion in making sentencing decisions, and “we do not
view the fourth prong as automatic if the other three prongs are met.” Id. at
425. Further, the Supreme Court’s recent decision in Henderson v. United States
provides additional guidance for assessing claims of error under plain-error
review. 133 S. Ct. 1121, 1130-31 (2013) (holding that the plainness of plain error
is to be judged by the law at the time of appellate consideration, rather than at
the time of trial). On appeal, the Government had expressed a concern about
an expansive plain-error rule that would permit “too many claims of plain error,”
and the Henderson Court emphasized the inherent “screening criteria” contained
within the plain-error rule which helps to avoid any “‘plain error’ floodgates.”
See id. at 1130. The Court noted that, when lower courts of appeals apply the
other prongs of plain error–requiring the impairment of substantial rights and
error that seriously affected the fairness, integrity, or public reputation of the
judicial proceedings–the fact that a defendant failed to object “may well count
against” the grant of relief under plain-error review. Id.
      With these advisories in mind, we nonetheless conclude that the error in
the instant case warrants reversal. For one, while we conclude that Culbertson’s
objection was insufficient to preserve the specific error alleged on appeal, he did
object to a sentence three times higher than his guideline range. Moreover, this
court already held in Escalante-Reyes that the plainness of any error should be
judged by the time of appeal; thus, the Henderson decision only reifies, rather
than supplants, our precedents.      See Escalante-Reyes, 689 F.3d at 422-23.
Accordingly, as in Escalante-Reyes, we are not satisfied here that there is other
record evidence showing that Culbertson’s sentence is “fair,” or that the
“integrity or public reputation” of the judicial proceeding was protected despite
the district court’s erroneous consideration of Culbertson’s need for
rehabilitation in determining the length of his sentence. See id. at 425. Based

                                        14
                                  No. 11-10917

on the sentencing record as a whole, we conclude that the district court’s
repeated emphasis on Culbertson’s need for prison time “to get clean and sober”
and “to get [himself] stabilized” affected the “fairness, integrity, or public
reputation” of the sentencing proceeding. See id. at 425-26. Moreover, unlike
Escalante-Reyes, who received a below-guidelines sentence and we nevertheless
reversed his sentence, here, Culbertson’s sentence was three times in excess of
his advisory range. See id. at 425 (“While the district court gave a slightly-below
Guidelines sentence, the circumstances show a probability that the court’s mercy
was, as Escalante–Reyes noted, ‘tempered’ by the desire to have him receive
anger management training.”). We therefore conclude that we should exercise
our discretion to recognize this error. See id. at 426; Garza, 706 F.3d at 663
(reversing and remanding for resentencing after determining that the district
court committed plain error under Tapia).
                              III. CONCLUSION
      Accordingly, the sentence is VACATED, and this matter is REMANDED
to the district court for resentencing in a manner not inconsistent with this
opinion.




                                        15
