             Case: 14-14009    Date Filed: 05/28/2015   Page: 1 of 9


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-14009
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:05-cr-00206-WS-B-3


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

LEONARD EDWARD WESTRY, JR.,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                         ________________________

                                 (May 28, 2015)

Before JORDAN, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Leonard Edward Westry, Jr., appeals his sentence imposed following

revocation of his supervised release. We vacate and remand for resentencing.
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                              I.      BACKGROUND

      In 2006, Westry was sentenced to 180 months of imprisonment followed by

120 months of supervised release after pleading guilty to a drug crime. He later

received two sentence reductions, pursuant to 18 U.S.C. § 3582(c)(2); his sentence

was reduced to 102 months of imprisonment. In March 2013, Westry was released

from prison and began his term of supervised release. In 2014, Westry’s probation

officer petitioned the district judge to revoke his supervised release, because

Westry had violated the conditions of his release by failing to report for eight

different drug screenings. Westry voluntarily waived his right to an initial hearing,

admitted the allegations, and the judge found him guilty.

      On August 20, 2014, at the final supervised-release-revocation hearing,

Westry explained, although he had found a job after his release from prison, he lost

it for lack of transportation. He also explained he had a drug problem.

Consequently, Westry requested that the judge sentence him to a total of 6 months

of imprisonment followed by a 28-day Salvation Army, drug-treatment program.

This sentence would total 7 months of confinement and be comparable to the low

end of his revocation Sentencing Guidelines range of 7 to 13 months of

imprisonment. Westry told the judge he wanted to undergo psychiatric treatment,

because he had been through a lot. The government responded that, under the

circumstances, including Westry’s extensive criminal history, a sentence of 12 to


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13 months of imprisonment followed by an additional 108 months of supervised

release was appropriate.

      The judge explained that Westry obviously needed help, because he had

struggled with drugs, mental health, and employment issues. The judge stated that

imprisonment was necessary and expressed hope that, during his period of

confinement, Westry would be able to obtain help for his drug addiction. The

judge stated he had considered the 18 U.S.C. § 3553(a) factors and the Chapter VII

provisions of the Sentencing Guidelines. The judge sentenced Westry to 12

months of imprisonment, because that amount of time was needed to punish

Westry and to give him the opportunity to avail himself of any available drug

treatment and vocational programs.

      After the district judge announced the 12-month sentence, Westry’s counsel

asked the judge to consider a sentence of 12 months and 1 day, which would allow

Westry to qualify for good-time credits. The judge denied the request and stated a

full 12 months was needed to make sure that Westry received the full benefit of

any available treatment. Westry did not raise any objections at the end of the

sentencing hearing.

                               II.   DISCUSSION

      On appeal, Westry argues the district judge’s consideration of the need for

him to obtain drug and mental-health treatment was plain error, because it fell


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afoul of the Supreme Court’s decision in Tapia v. United States, 564 U.S. ___, 131

S. Ct. 2382 (2011), and this court’s decision in United States v. Vandergrift, 754

F.3d 1303 (11th Cir. 2014). The government responds the judge’s error, although

plain, did not affect Westry’s substantial rights because other considerations,

including its argument about Westry’s criminal history, the need to punish him,

and the § 3553(a) factors, weighed more heavily in the judge’s determination.

      We generally review the sentence imposed by a district judge on revocation

of supervised release for reasonableness. Vandergrift, 754 F.3d at 1307. When a

defendant does not raise a relevant objection at the time of sentencing, however,

we review for plain error. Id. To show plain error, a defendant must demonstrate

“(1) that the district court erred; (2) that the error was plain; and (3) that the error

affected his substantial rights.” Id. (internal quotation marks and alteration

omitted). The third prong “usually means that the error must have affected the

outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625,

632, 122 S. Ct. 1781, 1786 (2002) (internal quotation marks omitted). This prong

is satisfied when the defendant establishes “a reasonable probability that, but for

the error, the outcome of the proceedings would have been different.” United

States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005) (internal quotation

marks omitted).




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      Plain-error review “is permissive, not mandatory”; we have “authority to

order correction, but [are] not required to do so.” United States v. Olano, 507 U.S.

725, 735, 113 S. Ct. 1770, 1778 (1993). If a defendant meets the three requisite

conditions, then we must decide whether “the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Id. at 736, 113 S. Ct. at

1779 (internal quotation marks and alteration omitted). We have held that a

defendant met the fourth prong of plain error analysis where, pre-Booker,1 “the

district judge imposed the lowest permissible sentence under the mandatory

guidelines and stated that she thought the sentence was too high” but had the

discretion to impose a lower sentence after Booker at the time of the defendant’s

appeal. Henderson, 409 F.3d at 1308.

      Under 18 U.S.C. § 3583(e)(3), a district judge may revoke a term of

supervised release and require the defendant to serve in prison all or part of the

term of supervised release, if he finds by a preponderance of the evidence a

defendant has violated a condition of supervised release. 18 U.S.C. § 3583(e)(3).

In Tapia, the Supreme Court held a sentencing court may not impose or lengthen a

prison term to promote an offender’s rehabilitation. Tapia, 564 U.S. ___, 131 S.

Ct. at 2391. We recently extended Tapia’s holding and explained it applies

“whether a person is initially being sent to prison or being sent back to prison after


      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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a period of supervised release.” Vandergrift, 754 F.3d at 1309. Moreover, in

Vandergrift, we held “Tapia error occurs where the district court considers

rehabilitation when crafting a sentence of imprisonment,” not merely when it

(1) tailors the length of the sentence to permit completion of a rehabilitation

program, or (2) makes rehabilitation the dominant factor in reaching its sentencing

determination. Id. at 1310. A judge may not consider rehabilitation “when

determining whether to impose or lengthen a sentence of imprisonment.” Id.

“Because it is impermissible to consider rehabilitation, a court errs by relying on or

considering rehabilitation in any way when sentencing a defendant to prison.” Id.

at 1311.

      In Vandergrift, defendant Walter Vandergrift served a prison sentence for

possession and distribution of child pornography. Id. at 1305. His supervised

release was revoked after the judge determined he had possessed or had access to a

pornographic DVD and a Maxim magazine, which contained sexually stimulating

material. Id. at 1305-06. In revoking Vandergrift’s supervised release, the judge

sentenced him to 24 months of imprisonment and explained he had to consider

(1) “the safety of the public”; (2) “the examples set to others to deter similar

conduct”; (3) just punishment for the violations; and (4) what was best for

Vandergrift. Id. at 1306. Relying in part on a psychologist’s testimony, the judge

also had explained Vandergrift might be helped by a prison sentence for his


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mental-health treatment and vocational training. Id. Specifically, the judge stated,

“a period of time in the prison system not only would benefit the public, or could,

at least more than not having that, but could also help save the defendant’s life.”

Id.

      In Vandergrift, we determined the judge had erred in considering

rehabilitation when imposing Vandergrift’s sentence; we determined the error was

plain. Id. at 1310-12. Nevertheless, we affirmed, because Vandergrift had failed

to prove the third prong of the plain-error test, that the error had affected his

substantial rights. See id. at 1312. Specifically, Vandergrift failed to show his

sentence would have been different, because the sentencing transcript reflected that

his rehabilitative needs constituted only a minor portion of the district judge’s

reasoning. Id. We explained, “[t]he [district] court’s primary considerations were

for the safety of the public and deterring others from similar conduct. Indeed, the

court emphasized its concern that Vandergrift continued to possess” pictures he

had taken of young boys about whom he had fantasized. Id.

      Westry has met the first two prongs of plain-error review: the district judge

clearly considered the need for rehabilitation in imposing the sentence, and, after

Vandergrift, doing so was plain error. See id. at 1310-12. The only remaining

issues are whether the judge’s error affected Westry’s substantial rights and




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whether that error implicates the fairness, integrity, or public reputation of the

judicial proceedings. See Vandergrift, 754 F.3d at 1307, 1312.

      On this record, Westry has shown a reasonable probability of receiving a

lower sentence but for the error; therefore, he has met the third prong of the plain-

error test. See Henderson, 409 F.3d at 1308. Two facts from the sentencing

proceeding support this conclusion. First, the district judge declined to impose

Westry’s requested 7-month sentence; in sentencing him to 12 months of

imprisonment, the judge stated it was for Westry’s need to obtain treatment while

in prison. See id. Second, when Westry requested that he be sentenced to 12

months plus 1 day of imprisonment in order to qualify for good-time credits, the

judge specifically declined the request to make sure that Westry could avail

himself fully of any treatment programs in prison. See Henderson, 409 F.3d at

1308. The government’s contention that other permissible factors, such as the

§ 3553(a) factors and the stated need to punish Westry were the judge’s primary

considerations, is unpersuasive because those permissible factors received

comparably less focus in the judge’s explanation of the sentence. In contrast to

Vandergrift, where treatment represented only a minor portion of the judge’s

reason for imposing the sentence, other factors, such as protecting the public from

the defendant factored more prominently in this case, where the record shows the

judge’s primary reason for sentencing Westry to a full year was to allow him to


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obtain treatment. See Vandergrift, 754 F.3d at 1312. Because the record shows a

reasonable probability that the district judge well may have imposed a different

sentence had it not been for Westry’s need to obtain drug, mental health, and

vocational treatment, Westry has made a showing of prejudice and satisfied the

third prong of plain error. Id.

      Moreover, Westry has met the fourth prong of the plain-error test. See

Olano, 507 U.S. at 736, 113 S. Ct. 1779. The judge specifically crafted his

sentence to ensure that Westry would serve a full 12 months of imprisonment and

nothing less. See Henderson, 409 F.3d at 1308. Given the strong suggestions in

the record the judge lengthened Westry’s sentence because of his reliance on an

impermissible factor and the reasonable probability Westry would have received a

lower sentence absent this consideration, we conclude this error seriously affected

the fairness, integrity, and public reputation of judicial proceedings. See id. We

exercise our discretion to correct the judge’s plain error by vacating and remanding

his case for resentencing. See Olano, 507 U.S. at 736, 113 S. Ct. 1779.

      VACATED AND REMANDED.




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