                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5047


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANDRE PAUL MARTIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:09-cr-00010-jpj-pms-1)


Argued:   December 10, 2010                 Decided:   September 1, 2011


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant.         Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, for Appellant.     Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Andre    Paul     Martin      pleaded          guilty   to    a   single       count      of

escape.       See 18 U.S.C. § 751(a).                    The district court varied

upward from the advisory sentencing range of 15-21 months and

sentenced Martin to 48 months’ imprisonment.                                Martin appeals,

arguing that the district court improperly considered Martin’s

rehabilitative        needs        when    determining          the         length    of        his

sentence.     See 18 U.S.C. § 3582(a).                 We affirm.



                                                I.

      18    U.S.C.      §     3582(a)           directs       district         courts       when

“determining whether to impose a term of imprisonment” and when

“determining      the       length”       of     any     term      of       imprisonment         to

“consider the factors set forth in section 3553(a) to the extent

that they are applicable, recognizing that imprisonment is not

an     appropriate           means         of         promoting         correction              and

rehabilitation.”         (Emphasis added).                At the time of Martin’s

sentencing,      this    court       had       not     addressed        §     3582(a)      in     a

published     opinion,       and    the    circuits       that      had      considered         the

statute were divided as to its scope.                           Compare, e.g., United

States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994) (concluding

that § 3582(a) prohibits consideration of rehabilitative needs

when deciding whether to impose a term of imprisonment, but does

not   prohibit    consideration           of     rehabilitation         when     determining

                                                2
the length of the sentence to be imposed), with, e.g., United

States v. Manzella, 475 F.3d 152, 161 (3d Cir. 2007) (concluding

that § 3582(a) prohibits consideration of rehabilitative needs

when determining whether to impose a term of imprisonment and

when determining the length of any term of imprisonment).

      The    Supreme       Court,       however,       recently         resolved       the

uncertainty,    concluding         that    §     3582(a)   “precludes         sentencing

courts from imposing or lengthening a prison term to promote an

offender’s rehabilitation.”             Tapia v. United States, 131 S. Ct.

2382, 2391 (2011).           And as the Court’s opinion makes clear,

“rehabilitation” as used in § 3582(a) encompasses educational

and   vocational      training,      medical       care,     and      other    treatment

programs.      See id. at 2391-92; see also 28 U.S.C. § 994(k)

(directing     the     Sentencing         Commission       to      ensure     that     the

Sentencing Guidelines “reflect the inappropriateness of imposing

a   sentence   to     a    term    of     imprisonment       for      the   purpose     of

rehabilitating       the   defendant       or    providing      the    defendant      with

needed   educational       or     vocational       training,       medical     care,    or

other correctional treatment”).



                                           II.

         Shortly after Martin was arrested on the escape charge,

he was diagnosed with a “serious and chronic medical condition

that [will], in all likelihood, both shorten his life expectancy

                                            3
and require life-long treatment.”                Brief of Appellant at 5. 1           On

appeal,      Martin   argues      that    he     is    entitled     to    resentencing

because the district court violated § 3582(a) by considering his

medical       condition    and    need     for     treatment       when     determining

Martin’s sentence.          The government, however, argues that the

district      court   varied      upward       because     of    Martin’s     extensive

criminal history, not his need for medical treatment.                            As we

will       explain,   we   believe       the     record    establishes        that   the

district court based its sentencing decision, at least in part,

on Martin’s medical condition and need for treatment.

       The record reveals that Martin’s medical condition played a

role in the sentencing arguments made by both parties.                               The

government moved for an upward variance from Martin’s advisory

sentencing       range,    arguing        that        Martin’s     criminal     history

category       (Category    VI,    the     highest        category)       substantially

under-represented the seriousness of his criminal history and

the likelihood that he would commit additional crimes in the

future.

       Counsel for Martin opposed that motion and urged the court

to consider instead a downward variance.                         Counsel argued that

       1
       The specifics of Martin’s medical diagnosis appear in a
sealed portion of the record, but counsel for Martin chose not
to identify the condition in the brief.     Because the specific
diagnosis is not relevant to our analysis, we follow counsel’s
lead and refer to the diagnosis in general terms.



                                           4
most of Martin’s criminal history points were from drug crimes

and misdemeanor conduct that presented no danger to society, and

that given Martin’s age (41 at the time of sentencing), Martin

was    less     likely     to    re-offend        than     younger     Category-VI

defendants.        Counsel      also     contended       that    Martin’s     medical

condition gave Martin a newfound motivation for avoiding future

criminal      activity,    explaining      that    the     diagnosis    had     “both

sharpened     [Martin’s]     resolve     for   personal         rehabilitation   and

provided him motivation to lead a sober and lawful life in order

to facilitate the life-long treatment he will need to manage his

medical condition.”        J.A. 16.

       At the sentencing hearing, the government argued that an

above-Guidelines      sentence     was    warranted,       noting    that   Martin’s

prior convictions were not merely for simple drug offenses, but

also    included      robberies,         escapes,        and     drug-distribution

offenses.       The   government       contended    that    Martin    was   a   “very

likely candidate to be a recidivist,” J.A. 25, given his history

of committing new offenses shortly after release from a prior

offense.       As to the medical diagnosis, the government argued

that the diagnosis was

       not a reason for a downward departure, but based on
       his criminal history and I think what appears to be a
       belief by Mr. Martin that almost all is lost, that he
       really has nothing to lose at this point, and that is
       one more reason for an upward departure as a means of
       deterrence, and not necessarily a deterrence to other
       individuals in his same position, but more so as a

                                          5
      deterrence for Mr. Martin that while he is locked up
      he will not be out committing any further offenses.

J.A. 26-27.

      The     district     court        also       addressed        Martin’s    medical

condition when announcing its sentence.                       After listing each of

the   §     3553(a)    factors     on    the       record     and    summarizing   the

information contained in the presentence report, the district

court stated its view that the advisory sentencing range was

inadequate.      The court then turned to the arguments made by

Martin in support of a below-Guidelines sentence:

      It is first argued on Mr. Martin’s behalf that he has
      had a life change because he now knows that he has
      received a diagnosis for a life threatening disease;
      that in the words of the memorandum in his behalf will
      in all likelihood shorten his life expectancy and
      require long term treatment, and I accept that fact,
      of course.

           The problem is that based on Mr. Martin’s past
      history, and lack of responsibility in his own life,
      lack of any stabilizing work or life experience, I
      think it is unlikely that he will take the steps
      necessary to obtain needed medical treatment, and not
      only will that harm him, but based on his past history
      will also leave others at risk from his disease which
      can easily be passed on to others.

J.A. 34.      The court went on to reject the argument that Martin’s

age made him less likely to re-offend and the argument that a

lengthy     sentence    would    not     be       effective    in   deterring    future

crimes that might be committed by Martin or by others:

      [A] sentence above the guideline range is not likely,
      perhaps, to deter others . . . [and] I think unlikely
      to deter Mr. Martin.    Mr. Martin has been receiving
      criminal sentences throughout his adult life, and he
                                              6
     obviously has not been de[t]erred.  In fact, he just
     left a federal prison where he committed the escape
     charge, and the fact that he had been in prison,
     obviously, did not deter him.  He simply did what he
     wanted to do.

            . . . .

          But one of the important purposes of sentencing
     is to incapacitate the defendant, that is, to make
     sure the public is protected from him for a reasonable
     length of time based on all the circumstances of his
     crime.

            . . . .

          In essence, I believe that Mr. Martin’s prior
     history, and criminal history in particular, and all
     of his circumstances require a sentence above the
     guideline range.

J.A. 35-36.

     According to the government, the oral statements made by

the district court at sentencing unambiguously show that the

sentencing decision was driven solely by the court’s concern

about   Martin’s   extensive      criminal   history   and    the    likelihood

that he would continue to commit crimes upon his release.                        We

disagree.      While     the   statements    made   during    the    sentencing

hearing show that the district court was concerned with Martin’s

extensive     criminal    history,    the    statements      also    raise   the

possibility    that    Martin’s    medical    condition      was    at   least   a

factor in the court’s decision-making process.

     In any event, a review of the “Statement of Reasons” filed

as part of the formal criminal judgment against Martin resolves

any doubt about whether the district court considered Martin’s
                                      7
medical      condition         when     selecting        the    length       of    Martin’s

sentence.          In    the    Statement   of     Reasons,      the     district     court

identified the following § 3553(a) factors as the basis for the

sentence:      (1) “the nature and circumstances of the offense and

the history and characteristics” of Martin; (2) the need “to

protect      the    public      from     further    crimes”       that       Martin    might

commit; and (3) the need to provide Martin with “educational or

vocational         training,      medical        care,     or     other       correctional

treatment     in    the    most       effective    manner.”           J.A.   75.      As   an

explanation         of    the     facts     justifying          the     above-Guidelines

sentence, the court stated that “[t]he defendant’s criminal and

social history require that he be incapacitated by confinement

in   order    to    protect      the    public     and    provide      him    with    needed

medical treatment.”              Id. (emphasis added).                In our view, this

explanation makes it clear that the district court in fact did

consider Martin’s medical condition and need for treatment when

determining the length of sentence to be imposed. 2


      2
       Relying on the well-established general “rule that where a
conflict exists between an orally pronounced sentence and the
written judgment, the oral sentence will control,” United States
v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003), the
government   argues  that   we  should   disregard   the  written
explanation as inconsistent with the district court’s oral
explanation of the basis for its sentence.     We disagree.   The
rule is typically applied when there are questions about the
sentence itself (e.g., the length of the sentence, the terms of
supervised release) rather than about the reasoning underlying
the court’s decision to impose a particular sentence.     Because
(Continued)
                                             8
       Although the district court when sentencing Martin did not

have the benefit of the Supreme Court’s decision in Tapia, it is

now clear that the district court erred by considering Martin’s

medical      needs    when      selecting      the    appropriate      sentence.      The

question,       then,     is     whether      the    court’s    error     requires    re-

sentencing.



                                              A.

       To determine whether the Tapia error requires resentencing,

we    must    first     determine      the    appropriate       standard      of   review.

This court generally reviews preserved sentencing errors for an

abuse of discretion, reversing only if an error is not harmless.

Errors       raised     for     the   first    time     on     appeal,    however,    are

reviewed only for plain error.                       See, e.g., United States v.

Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                       In this case, counsel

for    Martin     did     not     mention     §     3582(a)    prior     to   or   during



district courts are statutorily required to provide written
explanations of non-Guidelines sentences, see 18 U.S.C. §
3553(c)(2), it is not obvious to us that the rule should be
applied in this case in the manner suggested by the government.
In any event, the general rule as described in Osborne applies
when the oral pronouncement is unambiguous and in conflict with
the written judgment.  See Osborne, 345 F.3d 281, 283 n.1.   As
discussed above, the district court’s oral statements suggest
that the court did consider Martin’s medical condition when
imposing sentence, and the written explanation provided by the
court therefore is not inconsistent with the court’s oral
statements.



                                               9
sentencing or otherwise suggest to the district court that it

was improper to consider Martin’s health issues when imposing

sentence,        nor     did     counsel        object        after    the     sentence       was

announced or after reviewing the formal judgment that included

the     district        court’s      Statement         of      Reasons       explaining       the

sentence.        Notwithstanding this failure to explicitly raise §

3582(a) before the district court, Martin, relying on United

States    v.     Lynn,        contends     that      he       preserved      his     sentencing

objection      by      arguing      for    a    within-Guidelines             sentence.        We

disagree.

       In Lynn, we held that a defendant preserves an objection to

the    court’s      consideration          of    the      §    3553(a)      factors     or    its

explanation of the sentence by arguing “for a sentence different

than the one ultimately imposed.”                         Lynn, 592 F.3d at 578.               We

rejected the government’s contention that such a challenge could

be    preserved        only    by   an     objection          made    after    sentence       was

imposed, explaining that “[b]y drawing arguments from § 3553 for

a     sentence      different       than       the     one      ultimately         imposed,    an

aggrieved party sufficiently alerts the district court of its

responsibility           to      render         an        individualized            explanation

addressing those arguments, and thus preserves its claim.”                                    Id.

Given the differences between the claim raised in this case and

those raised in Lynn, we do not believe the manner of error

preservation           found     sufficient          in       Lynn    can     be    viewed     as

                                                10
sufficient in this case, because there was nothing in Martin’s §

3553(a)-based        arguments      about      the   appropriate            sentence        that

would have alerted the district court to Martin’s claim that §

3582(a) precluded any consideration of his medical condition.

See United States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010)

(applying plain-error review to claim that district court when

imposing sentence improperly considered defendant’s exercise of

his right to trial:           “This claim of error was not addressed at

all   in    Hargrove’s       earlier        arguments         in    favor     of    a    below-

Guidelines sentence.           It was an alleged error that arose during

the court’s statements explaining the basis for the sentence it

imposed.        Hargrove   failed      to   object       to    it    at   the      time,    thus

denying     the      district       court      the       opportunity          to        consider

Hargrove’s        argument      and     correct          the        purported       error.”).

Accordingly, we conclude that Martin’s challenge to his sentence

must be reviewed for plain error only.



                                             B.

      Under       plain-error     review,         Martin       bears      the      burden     of

establishing that the district court erred, that the error was

plain, and that the error affected Martin’s substantial rights.

See United States v. Olano, 507 U.S. 725, 734 (1993); United

States     v.    Massenburg,     564    F.3d      337,    342-43       (4th     Cir.     2009).

Even if Martin makes the required showing, “we retain discretion

                                             11
to deny relief.”            United States v. Robinson, 627 F.3d 941, 954

(4th Cir. 2010).           “[P]lain errors should only be corrected where

not doing so would result in a miscarriage of justice, or would

otherwise    seriously           affect    the     fairness,    integrity        or   public

reputation of judicial proceedings.”                        Id. (citation, internal

quotation marks, and alteration omitted).

       As we have noted, a Tapia error occurred, and we assume,

without deciding, that the error was plain.                          Nonetheless, Martin

cannot     show     that     the     Tapia     error       affected     his    substantial

rights.

       As a general rule, an error affects substantial rights if

the error was prejudicial, which “means that there must be a

reasonable probability that the error affected the outcome of

the [proceeding].”               United States v. Marcus, 130 S. Ct. 2159,

2164 (2010); accord United States v. McClung, 483 F.3d 273, 276

(4th Cir. 2007).           To satisfy this requirement in the sentencing

context, there must be a non-speculative basis in the record for

concluding        that     the     defendant       would    have      received    a   lower

sentence    had     the     error    not     occurred.         See    United     States   v.

Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc) (explaining

that   a   sentencing        error    affected       the     defendant’s       substantial

rights if the sentence imposed “was longer than that to which

[the defendant] would otherwise be subject”); United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005) (explaining that error

                                              12
in treating the Guidelines as mandatory affects a defendant’s

substantial rights only if the record reveals a “nonspeculative

basis for concluding that the treatment of the guidelines as

mandatory        affected     the     district       court’s      selection       of    the

sentence        imposed”     (internal       quotation      marks    and        alteration

omitted)).

     As previously discussed, the district court’s decision to

impose     an     above-Guidelines          sentence      was    based     on     Martin’s

medical    condition        and     his    extensive     criminal     history.          The

district court’s statements demonstrate that the court was quite

concerned about Martin’s criminal history, and the court clearly

shared    the     government’s       view     that    Martin’s      criminal      history

score understated the severity of his criminal history and the

likelihood       that   he    would        re-offend.       The     extensiveness           of

Martin’s criminal record alone would have been sufficient to

support the sentence imposed by the court, and there are no

statements in the record suggesting that the court would have

imposed a lesser sentence had it not considered Martin’s health

issues.

     It    is,     of   course,      possible      that    the    court     might      have

imposed a lower sentence, but that simple possibility is not

enough    to     satisfy     the     defendant’s       burden     under     plain-error

review.         Instead,     the    defendant     must     show    that    there       is    a

reasonable       probability        that    the   error    “actually       resulted         in

                                             13
prejudice    and    not    merely      possible     or    speculative          prejudice.”

Robinson,    627    F.3d    at   955;    cf.      Marcus,     130   S.    Ct.     at    2164

(finding “irreconcilable with our ‘plain error’ precedent” the

Second Circuit’s practice of reversing a specific type of trial

error     under     plain-error         review       whenever       there        is     “any

possibility, no matter how unlikely” of prejudice).                               Because

there is no concrete, record-based indication that Martin would

have received a lower sentence, Martin has not demonstrated that

his substantial rights were actually affected by the district

court’s Tapia error.          See Jones v. United States, 527 U.S. 373,

394-95   (1999)     (“Where      the   effect      of    an   alleged     error        is    so

uncertain, a defendant cannot meet his burden of showing that

the error actually affected his substantial rights.”); White,

405 F.3d at 223-24 (concluding that defendant did not establish

that sentencing error affected the district court’s selection of

a    within-Guidelines      sentence         in   part   because      “[t]he     district

court made no statements at sentencing indicating that it wished

to    sentence     White   below       the    guideline       range      but    that        the

guidelines prevented it from doing so”).




                                             14
                                  III.

     Accordingly, because Martin has not satisfied the stringent

requirements   of   plain-error    review,   we   hereby   affirm   his

sentence. 3

                                                              AFFIRMED




     3
       Our conclusion that Martin has not demonstrated that his
substantial rights were affected by any error in the district
court’s   consideration  of   Martin’s  medical  condition  also
forecloses his claims (raised for the first time on appeal) that
the sentence violated the statutes governing quarantine, see 42
U.S.C. §§ 264-272, and amounted to punishment for his medical
status in violation of the Eighth Amendment, see, e.g., Robinson
v. California, 370 U.S. 660, 666-67 (1962).




                                   15
