                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              March 2, 2007
                             No. 06-14413                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 05-00201-CR-T-N

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ERICA RUTH STILLWELL,

                                                         Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________

                             (March 2, 2007)

Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:
      Erica Stillwell appeals her 51-month prison sentenced imposed after she

pleaded guilty to possession with intent to distribute methamphetamine and aiding

and abetting the same. She argues that (1) the district court sentenced her to a

longer term of imprisonment than it believed reasonable based on its belief that her

sentence would be reduced by 12 months after she successfully completed a

residential drug treatment program, and (2) her sentence is unreasonable because it

is greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a). For the

reasons that follow, we affirm.

                                  I. BACKGROUND

      On June 20, 2005, Stillwell accompanied Angela Waugh as she drove from

Montgomery, Alabama to Atlanta, Georgia for the purpose of purchasing

methamphetamine. After dropping Stillwell off at an Atlanta store, Waugh met her

drug supplier and completed the drug purchase. Waugh then returned to the store

to pick up Stillwell. As the women drove back to Montgomery, they stopped in

Auburn, Alabama at the residence of Kyle Bailey, a suspected drug dealer. While

Stillwell remained in the front of the residence, Waugh and Bailey went to the back

of the home where Waugh sold a portion of the recently-purchased

methamphetamine to Bailey. Waugh and Stillwell then returned to the vehicle and

headed back to Montgomery.



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          Auburn police officers, who had been surveilling Bailey’s home for drug

activity, followed Waugh and Stillwell as they traveled toward Montgomery.

Upon nearing the Montgomery area, Waugh began driving evasively. Waugh then

slowed to a very low rate of speed, and Stillwell, the front-seat passenger, emptied

the contents of a bag onto the street. Suspecting that the bag had contained illegal

drugs, the officers stopped and searched the vehicle. During the search, officers

found methamphetamine on the front driver’s and passenger seats, the front

floorboard, the center console, and in the weather stripping of the front passenger

window. Tests revealed that the substance Stillwell had dumped on the ground

was also methamphetamine. In all, officers recovered approximately 75.4 grams of

methamphetamine from the scene.

          A grand jury returned a single-count indictment against Stillwell, charging

that she and co-defendant Waugh, while aiding and abetting one another,

knowingly and intentionally possessed with the intent to distribute 50 grams or

more of methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1). Stillwell, without entering into a formal plea agreement, pleaded

guilty.

          The United States Probation Office prepared a presentence investigation

report (“PSI”) establishing Stillwell’s total adjusted offense level as 27 and her



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criminal history category as I under the Sentencing Guidelines, resulting in a

Guidelines range of 70 to 87 months imprisonment. Because of Stillwell’s

cooperation with prosecutors, the Government moved for a downward departure

pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The Government noted

that if the departure were granted, Stillwell’s Guidelines range would be 51 to 63

months.

      During the sentencing hearing, the district court granted the downward

departure and asked both Stillwell’s counsel and the Probation Office to explain

whether and why a sentence of 51 months would be too long. Stillwell’s counsel

asked the district court to “impose a sentence that’s lengthy enough to put

[Stillwell] in the residential drug treatment program.” She stated that it was her

belief that “to qualify for the residential drug treatment program, it requires a

sentence of 24 months.” After the probation officer opined that 51 months was “a

fair sentence,” the court again asked Stillwell to explain why she should not “have

to pay some penalty” for the “tremendous damage” she had caused to the lives of

others. In response, Stillwell’s counsel reiterated her contention that a sentence of

“two years would give her residential drug treatment.” The court took a five-

minute recess to consider the arguments.

      After the recess, both the probation officer, and later, Stillwell’s counsel,



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informed the court that the Bureau of Prisons (“BOP”) could reduce Stillwell’s

sentence by up to one year if she successfully completed its 500-hour residential

drug treatment program. In response, the Government called Alabama Bureau of

Investigation Agent Joe Herman to testify about Stillwell’s extensive involvement

in the trafficking of methamphetamine between Montgomery and Atlanta. After

Agent Herman’s testimony, Stillwell made a statement apologizing for her

conduct. Stating that it had considered the “factors under § 3553,” the court

announced a sentence of 51 months imprisonment. The court specifically

recommended that Stillwell be incarcerated in a facility where intensive residential

drug treatment was available, and the court noted that because Stillwell was likely

to complete such a program, she would “end up serving somewhere around 36 to

39 months, and I think that’s a fair sentence.” Stillwell objected that the sentence

was unreasonable because it was greater than necessary to achieve the purposes of

§ 3553(a). This appeal followed.

                                 II. DISCUSSION

      Under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), we review a defendant’s ultimate sentence for reasonableness. United

States v. Marcus Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). We first

determine whether the district court correctly interpreted and applied the



                                          5
Guidelines, and whether the court calculated correctly the sentencing range

prescribed therein. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

We then determine whether the sentence is reasonable in light of the factors set

forth in 18 U.S.C. § 3553(a). United States v. McVay, 447 F.3d 1348, 1353 (11th

Cir. 2006). This court’s “[r]eview for reasonableness is deferential,” and “the

party who challenges the sentence bears the burden of establishing that the

sentence is unreasonable in the light of both [the] record and the factors in section

3553(a).” Talley, 431 F.3d at 788. These factors include, inter alia, the history

and characteristics of the defendant, the seriousness of the offense, the need to

protect the public from further crimes of the defendant, and the Guidelines range.

18 U.S.C. § 3553(a). Because “[t]he weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court,” this court

will not substitute its judgment in weighing the relevant factors. United States v.

Aaron Williams, 456 F.3d 1353, 1363 (11th Cir. 2006). And “[a]lthough

sentencing courts must be guided by these factors, nothing in Booker or elsewhere

requires the district court to state on the record that it has explicitly considered

each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United

States v. Thomas, 446 F.3d 1348, 1357. Nonetheless, “reasons given by the

district court for its selection of a sentence are important to assessing



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reasonableness.” Marcus Williams, 435 F.3d at 1361. And “[a] sentence that is

based entirely upon an impermissible factor is unreasonable because such a

sentence does not achieve the purposes of § 3553(a).” United States v. Lorenzo,

— F.3d — , — , No. 05-16119, 2006 WL 3526904, at *1 (11th Cir. Dec. 8, 2006)

(citing Aaron Williams, 456 F.3d at 1361).

  A. Consideration of Stillwell’s Potential Completion of Drug Rehabilitation

      Stillwell argues that the district court erred in imposing a sentence greater

than it believed “fair” or “reasonable” based upon its belief that Stillwell would

receive a 12-month sentence reduction if she successfully completed a 500-hour

residential drug treatment program. “Where a defendant raises a sentencing

argument for the first time on appeal, we review for plain error.” United States v.

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). The plain error standard is

applicable here because Stillwell did not raise this specific issue in the district

court. See id. There is a difference between arguing that the sentence imposed is

longer than necessary to achieve the purposes of § 3353(a) (which Stillwell argued

in the district court below) and arguing that the court erred in considering

Stillwell’s possible successful completion of drug treatment in determining the

length of her imprisonment (as Stillwell argues here). See id.

      In United States v. Harris, this court held that “[r]ehabilitative considerations



                                            7
have been declared irrelevant for purposes of deciding whether or not to impose a

prison sentence and, if so, what prison sentence to impose.” 990 F.2d 594, 596

(11th Cir. 1993) (citing 28 U.S.C. § 994(k); United States v. Mogel, 956 F.2d

1555, 1563 (11th Cir. 1992)). “[I]t is inappropriate to imprison or extend the term

of imprisonment of a federal defendant for the purpose of providing him with

rehabilitative treatment.” Id.; United States v. Dunham, 240 F.3d 1328, 1330 (11th

Cir. 2001) (“[A] court cannot impose an initial incarcerative sentence for the

purpose of providing the defendant with rehabilitative treatment.” (citing United

States v. Brown, 224 F.3d 1237, 1240, 1242 (11th Cir. 2000))).

      As a threshold matter, the Government argues that this court is precluded

from addressing Stillwell’s challenge under the doctrine of invited error. “The

doctrine of invited error is implicated when a party induces or invites the district

court into making an error. Where invited error exists, it precludes a court from

invoking the plain error rule and reversing.” United States v. Silvestri, 409 F.3d

1311, 1327 (11th Cir. 2005); see, e.g., United States v. Love, 449 F.3d 1154, 1157

(11th Cir. 2006) (concluding that this court was precluded from reviewing

defendant’s claim that the district court erred in sentencing him to five years of

supervised release because the defendant invited the district court to impose a

sentence that included a term of supervised release); United States v. Baker, 432



                                           8
F.3d 1189, 1215-16 (11th Cir. 2005) (concluding that the doctrine of invited error

precluded review of a claim that admission of testimony violated the hearsay rule

and Confrontation Clause where the party’s counsel elicited that testimony at trial)

United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003) (finding that a

defendant whose counsel had affirmatively stipulated to the playing of a

tape-recorded statement had invited any error resulting from the jury’s hearing the

tape, and thus that any potential error was not reversible).

      As discussed above, at the sentencing hearing, Stillwell’s counsel asked the

district court to “impose a sentence that’s lengthy enough to put [Stillwell] in the

residential drug treatment program.” (emphasis added). Thus, although Stillwell

did not “invite” the court to sentence her to 51 months imprisonment based on the

likelihood of her sentence being reduced by participation in the residential drug

treatment program, Stillwell nonetheless “invited” the court to consider her

potential completion of the program in determining the length of imprisonment to

impose. To the extent the district court may have done so in violation of the rule

articulated in Harris, Stillwell invited this violation and may not be heard to

complain of it on appeal.

               B. Whether the Sentence is Greater than Necessary

      Stillwell argues that her sentence of 51-months imprisonment is



                                           9
unreasonable because it is greater than necessary to achieve the purposes of

§ 3553(a). We disagree.

      As is clear from the record, well before the district court learned that the

BOP could reduce Stillwell’s sentence if she completed the residential drug

treatment program, the court asked both Stillwell and the Probation Office to

explain whether and why Stillwell should be sentenced to less than 51 months.

After the probation officer opined that 51 months was a “fair sentence,” the court

noted that “Stillwell, while perhaps having changed today, has done tremendous

damage to a lot of people by introducing these drugs into the lives of other people

when she brought them into this community.” Only after the court expressed that

Stillwell should “pay some penalty” for the damage she caused to the lives of

others did the court learn (from the probation officer and Stillwell’s counsel) that

the BOP could reduce Stillwell’s sentence by 12 months if she completed a 500-

hour drug treatment program. Nothing in the record evinces that the district court

believed 51 months to be an unreasonably long sentence and so that absent the

possibility of the BOP reduction, it would have sentenced her to only 39 months.

The district court correctly calculated and considered Stillwell’s advisory

Guidelines range of 51-63 months (which resulted from the court granting a

downward departure), and it expressly considered § 3553(a) factors such as the



                                          10
seriousness of the offense and the need to protect the public from any future crimes

Stillwell may commit. And to the extent the court considered the possibility of

Stillwell completing a drug rehabilitation program when it imposed sentence,

the court did not impose sentence solely (or even largely) on this basis. Thus, we

conclude that Stillwell failed to satisfy her burden of establishing that a sentence of

51-months imprisonment is unreasonable in light of § 3353(a).

                                 III. CONCLUSION

      For the foregoing reasons, we AFFIRM.




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