                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2007

USA v. Manzella
Precedential or Non-Precedential: Precedential

Docket No. 06-3434




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                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                         No. 06-3434


              UNITED STATES OF AMERICA

                               v.

                   VALERIE MANZELLA,

                                           Appellant



         Appeal from the United States District Court
          for the Western District of Pennsylvania
          (D.C. Criminal Action No. 05-cr-00289)
         District Judge: Honorable Arthur J. Schwab


                  Argued December 5, 2006

      Before: RENDELL and AMBRO, Circuit Judges
                BAYLSON,* District Judge


 *
   Honorable Michael M. Baylson, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
             (Opinion filed: February 2, 2007)

Lisa B. Freeland
   Federal Public Defender
Kimberly R. Brunson, Esquire (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

      Counsel for Appellant

Mary Beth Buchanan
   United States Attorney
Robert L. Eberhardt, Esquire (Argued)
Kelly R. Labby, Esquire
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

      Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

      Section 3582(a) of Title 18 requires sentencing judges to

                              2
“recogniz[e] that imprisonment is not an appropriate means of
promoting correction and rehabilitation.” We conclude that the
District Court, despite the best of intentions, violated this
statutory command by sentencing Valerie Manzella to 30
months of imprisonment solely because a term of that length
was believed necessary to make her eligible for a 500-hour drug
treatment program offered by the Bureau of Prisons.

                    I. Factual Background

       Manzella pled guilty to one count of “Uttering a
Counterfeit Security of an Organization Involved in Interstate
Commerce,” in violation of 18 U.S.C. § 513(a). The
Government admits that Manzella was a “small participant in a
large[-]scale counterfeit check cashing scheme.” The organizer
of the scheme, Herbert Lamont Ballard, had recruited Tammy
Racz for assistance. Racz, in turn, sought people who would
provide their own personal information with which to generate
counterfeit checks, all in return for a portion of the fraudulent
proceeds. Manzella was one of those recruits.

       Manzella is a drug addict, but it was not always so.
Around the age of 30, she and her partner wanted to have a
child, but had difficulty conceiving. When Manzella finally
became pregnant, she had a miscarriage, causing her to become
depressed. It was then that she began abusing drugs. Soon the
relationship with her partner ended and Manzella became
involved with a drug addict who prostituted her for cash. In the


                               3
decade since her miscarriage, Manzella has tried several times
to treat her addiction, but nothing has worked. Like others
similarly involved, Manzella was thus vulnerable to Racz’s
invitation to join Ballard’s fraud conspiracy.

       On her arrest for attempting to cash a counterfeit check
in the amount of $484.06, Manzella immediately cooperated
with the authorities. It has been suggested that the threat of
Manzella testifying against Ballard played a significant role in
causing him to plead guilty.

       Aside from this cooperation, however, it is fair to say that
the period between Manzella’s arrest and sentencing was a
tragic drama. Conditions of Manzella’s pre-trial release
included refraining from the use and possession of controlled
substances and reporting regularly to Pre-Trial Services for drug
testing. In addition, she was required to attend outpatient drug
therapy at a facility called “Zoar NewDay” in Pittsburgh.
Several months after being released on bond, Manzella failed to
report to Pre-Trial Services and to Zoar NewDay, causing the
District Court to issue a warrant for her arrest. Once Manzella
was apprehended, the District Court held a hearing concerning
the violation of her pre-trial release, resulting in the imposition
of an additional condition—home confinement monitored by
electronic device. Shortly after the hearing, Manzella entered
her guilty plea. After the plea colloquy, the Court advised
Manzella that “it will be foolish to come to your sentencing
having violated” the conditions of pre-trial release.


                                4
Nevertheless, in the several months following her plea,
Manzella repeatedly left her residence for unauthorized purposes
and tested positive for cocaine. Shortly before her sentencing,
Manzella again was arrested, this time after being found passed
out with a crack pipe in her purse.

       Manzella was sentenced in June 2006. The undisputed
advisory Sentencing Guidelines range was 2–8 months of
imprisonment.1 In her pre-sentencing memorandum, Manzella’s
attorney argued for a non-jail sentence. At the sentencing
hearing, however, she instead argued (presumably because of
the pre-trial release violations) that Manzella should be
sentenced to a one-month prison term only or, at most, one
month in prison followed by a term of supervised release.
Manzella’s mother also addressed the Court regarding her
daughter’s history of drug addiction. The Government did not
make any specific recommendations as to the proper sentence
but did argue that “the only thing that’s going to get [Manzella]
clean, to change her lifestyle, is a lengthy period of
incarceration. . . . She’s never been made to face the
consequences of her actions.”

  1
   This range falls into “Zone B” of the Sentencing Table. See
U.S.S.G. Ch. 5, Pt. A. Under the mandatory Guidelines system,
a Guidelines range falling in Zone B authorized a court, instead
of imprisonment, to sentence the defendant to a term of
probation, as long as it also included intermittent confinement,
community confinement, or home detention.                See Id.
§ 5B1.1(a)(2).

                               5
       After counsel had finished making their arguments, the
Judge imposed a sentence of 36 months in prison and
recommended that Manzella be placed in the Bureau of
Prisons’s 500-hour drug treatment program while incarcerated.
The Judge explained:

             The reason for the sentence is as follows:
      The Court finds the sentence imposed to be
      sufficient, but not greater than necessary for the
      sentence to reflect the seriousness of the offense,
      promote respect for the law, and provide just
      punishment for the offense; to afford adequate
      deterrence; to protect the public against
      commission of further crimes by this Defendant;
      and provide the Defendant with needed and
      effective educational or vocational training,
      medical care, or other corrective treatment.

             It is obvious that the short-term
      incarcerations and the drug treatment programs to
      date have not been sufficient to help [the]
      Defendant work through her issues. The drug
      treatment program of 500 hours is the best
      program that is available in the federal
      correctional system and requires a minimum of 36
      months in order to participate in that program.

             I also find that her conduct is different than


                               6
      the other people that I have given probation to or
      minimum sentences because of her conduct and
      her continued violation of her obligations to this
      court. And I have great concern that a sentence of
      one month and putting her back out on the street
      will not help her solve her issues and, quite
      frankly, could lead to her great harm and possibly
      to her death.

             The Court, additionally, has considered all
      the other factors set forth in Title 18 [of the]
      United States Code, Section 3553(a), including
      the nature and circumstances of the offense, the
      Defendant’s history and characteristics, the kinds
      of sentences available for this offense, the
      sentencing guidelines range under the advisory
      guidelines adopted by the United States
      Sentencing Commission for the category of
      offense and [the] Defendant’s criminal history,
      any applicable policy statements adopted by the
      Sentencing Commission, the need to avoid
      unwarranted sentence disparities among
      Defendants with similar records who have been
      found guilty of similar conduct, and the need to
      provide restitution to any victim of the offense.

Manzella’s attorney objected almost immediately, arguing that
there were several options short of prison that could provide


                              7
Manzella with rehabilitative services. Specifically, she pointed
out that the longest treatment program Manzella had ever
attended had lasted only 30 days and that a longer, more
intensive program—such as a halfway house—might prove
more effective.

        When the Judge did not respond to these arguments,
Manzella’s attorney then recalled that “there was somebody else
in my office who had a case where I believe Your Honor had
sentenced the Defendant to the 500-hour drug treatment
program through [the Bureau of Prisons], but they thought a
24-month sentence would be sufficient to be able to get her into
it, given that it was a female, et cetera.” Though still contending
that no prison sentence was warranted, Manzella’s attorney
requested in the alternative that the Judge impose a 24-month
sentence instead.

       This argument piqued the Judge’s interest.

              I had previously been informed that for a
       woman, that 24 months was adequate to
       participate fully in the 500-hour program. I was
       either misinformed or that information has been
       updated and so my understanding is that it is --
       the minimum is 36 months.

              If counsel wishes, I would be pleased to
       hold the implementation of this sentencing until


                                8
       early next week so counsel -- the counsel for [the]
       Defendant and the Government can meet with the
       Probation Office and verify that information. But
       I do remember the sentence from two weeks ago,
       I did inquire of the probation officer about the 24
       months and was informed that it’s 36 months. I
       did that intentionally today.

Rather than delaying the sentence into the next week, everyone
agreed to adjourn briefly so that the probation officer could
inquire from the Bureau of Prisons as to the specific term of
imprisonment needed in order for Manzella to be eligible for the
500-hour treatment program. When the hearing resumed, the
Judge reported:

       It is my understanding from the Probation Office
       that although the Bureau of Prisons wished to
       have 36 months to conduct the program in light of
       scheduling issues, they believe that they can do it
       at 30 months. So I will amend my sentence to 30
       months, down from 36 months.

Even this reduced sentence is almost four times longer than the
top of the advisory Guidelines range.

       Manzella filed an expedited appeal of her sentence,
claiming that (1) it violates 18 U.S.C. § 3582(a); (2) it is
unreasonable in light of 18 U.S.C. § 3553(a) and United States


                               9
v. Booker, 543 U.S. 220 (2005); and (3) it violates the Ex Post
Facto Clause of the Constitution, see U.S. CONST. art. I, § 9, cl.
3. The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1).

                         II. Discussion

       Though the Sentencing Guidelines are now advisory,
sentencing courts must still follow statutory mandates. We
review criminal sentences for a “violation of the law,” 18 U.S.C.
§ 3742(a)(1), which includes (i) matters of statutory
interpretation over which we have plenary review, United State
v. Howerter, 248 F.3d 198, 200 (3d Cir. 2001), as well as (ii)
questions about reasonableness, Booker, 543 U.S. at 258–65;
United States v. Cooper, 437 F.3d 324, 326–28 (3d Cir. 2006).

       A. Reconciling Sections 3582(a) and 3553(a)(2)(D)

      Manzella claims that the District Court violated the law
when it imposed a 30-month term of incarceration for the sole
purpose of making her eligible for the Bureau of Prisons’s 500-
hour drug treatment program. Specifically, she points to 18
U.S.C. § 3582(a), which provides:

       Factors to be considered in imposing a term of
       imprisonment—The court, in determining
       whether to impose a term of imprisonment, and,


                               10
      if a term of imprisonment is to be imposed, in
      determining the length of the term, shall 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).

       On the other hand, the Government argues that the
District Court’s desire to provide Manzella with rehabilitative
services is not only allowed, but affirmatively encouraged.
Specifically, 18 U.S.C. § 3553(a) provides in part:

      Factors to be considered in imposing a
      sentence—The court shall impose a sentence
      sufficient, but not greater than necessary, to
      comply with the purposes set forth in paragraph
      (2) of this subsection. The court, in determining
      the particular sentence to be imposed, shall
      consider—

             ...

             (2) the need for the sentence imposed—

                    ...



                              11
                      (D) to provide the defendant with
                      needed educational or vocational
                      training, medical care, or other
                      correctional treatment in the most
                      effective manner . . . .

       At a glance, §§ 3553(a)(2)(D) and 3582(a) appear to be
in conflict—the former requiring a sentencing court to consider
a defendant’s need for rehabilitation and the latter prohibiting it.
On closer reading, however, the supposed conflict is illusory.

       We begin, of course, with the statutory text. “In matters
of statutory interpretation, the ‘plain meaning’ of statutory
language is often illuminated by considering not only ‘the
particular statutory language’ at issue, but also the structure of
the section in which the key language is found, ‘the design of
the statute as a whole and its object . . . .’” United States v.
Tupone, 442 F.3d 145, 151 (3d Cir. 2006) (quoting United
States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)).

         Sections 3553(a)(2)(D) and 3582(a) were enacted as part
of the Sentencing Reform Act of 1984. See Pub. L. No. 98-473,
Tit. II, ch. II, §§ 3553, 3582, 98 Stat. 1837 (1984). It is widely
recognized that this legislation rejected rehabilitation as the
primary goal of our criminal justice system, though it did not
abandon it entirely. See Mistretta v. United States, 488 U.S.
361, 366–67 (1989); Ilene H. Nagel, Structuring Sentencing
Discretion: The New Federal Sentencing Guidelines, 80 J.


                                12
CRIM. L. & CRIMINOLOGY 883, 899–906 (1990); Harvey M.
Silets & Susan W. Brenner, The Demise of Rehabilitation, 13
AM. J. CRIM. L. 329, 356–62 (1986); Michael Vitiello,
Reconsidering Rehabilitation, 65 TUL. L. REV. 1011, 1027–29
(1991).

       The Second Circuit Court of Appeals, in United States v.
Maier, 975 F.2d 944 (2d Cir. 1992), was among the first to
explain how this refocus functioned in practice. It refuted the
claim—advanced by the Ninth Circuit Court of Appeals in
United States v. Martin, 938 F.2d 162 (9th Cir. 1991)—that
“‘rehabilitation is no longer a direct goal of sentencing.’” Maier,
975 F.2d at 946 (emphasis omitted) (quoting Martin, 938 F.2d
at 163). For that proposition, the Ninth Circuit had cited 28
U.S.C. § 994(k), which is a directive to the Sentencing
Commission to ensure that “the [G]uidelines reflect the
inappropriateness of imposing a sentence to a term of
imprisonment for the purpose of rehabilitating the defendant.”
The Second Circuit explained, however, that rather than
prohibiting rehabilitation as a goal of sentencing, § 994(k)
“stands for the significantly different proposition that
rehabilitation is not an appropriate goal for imprisonment.” See
Maier, 975 F.2d at 946 (emphasis in original). This was not to
say that § 3553(a)(2)(D) has no effect, for “Congress expressed
no hostility to rehabilitation as an objective of sentencing.” Id.
at 946–47 (emphasis in original) (citing 18 U.S.C.




                                13
§ 3553(a)(2)(D)).2

       The terms “sentence” and “imprisonment” in the
Sentencing Reform Act are different—and are the key to
understanding how §§ 3582(a) and 3553(a)(2)(D) operate in
harmony. “Sentence” has broad meaning. It includes many
types of possible punishment, only one of which is
“imprisonment.” See 18 U.S.C. § 3551(b) (authorizing
sentences of fines, probation, restitution, forfeiture, and victim
notice, in addition to imprisonment); id. § 3583 (providing for
supervised release after a term of imprisonment). So
understood, the “conflict” between §§ 3582(a) and


     2
       Like § 3582(a), § 994(k) was enacted as part of the
Sentencing Reform Act. See Pub. L. No. 98-473, Tit. II, ch. II,
§ 994(k). Unlike § 3582(a), though, § 994(k) is a directive to
the U.S. Sentencing Commission, not to sentencing courts.
United States v. Hawk Wing, 433 F.3d 622, 629 n.5 (8th Cir.
2006); United States v. Hardy, 101 F.3d 1210, 1212–13 (7th Cir.
1996); United States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994).
Still, given the sections’ common origin and remarkably similar
wording, we find analyses of § 994(k) to be instructive to our
understanding of § 3582(a). See United Sav. Ass’n v. Timbers
of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (instructing
that statutory provisions, to the extent possible, be interpreted
harmoniously). Other courts have done so as well. See, e.g.,
Hawk Wing, 433 F.3d at 629; United States v. Jackson, 70 F.3d
874, 879–80 (6th Cir. 1995); United States v. Anderson, 15 F.3d
278, 280–81 (2d Cir. 1994).

                               14
3553(a)(2)(D) wanes away: courts must consider a defendant’s
need for rehabilitation when devising an appropriate sentence
(pursuant to § 3553(a)(2)(D)), but may not carry out that goal by
imprisonment (pursuant to § 3582(a)).

        The reason for establishing such a policy was explained
by the Second Circuit in Maier: “Congress wanted to be sure
that no defendant was locked up in order to put him in a place
where it was hoped that rehabilitation would occur.” 975 F.2d
at 946 (emphasis added). Instead, “[i]ncarceration would have
to be justified by such traditional penological purposes as
incapacitation, general deterrence, specific deterrence, and
retribution.” Id. This rationale gains credence when we realize
that sentencing judges have no authority to order the Bureau of
Prisons to place a defendant in any given rehabilitative program
that might be offered, though they may offer recommendations.
United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002); Thye
v. United States, 109 F.3d 127, 130 (2d Cir. 1997). Allowing a
judge to issue a specific term of imprisonment based on the
uncertain placement of a defendant in a rehabilitative programs
is a practice Congress was unwilling to endorse.

        The Eleventh Circuit Court of Appeals, in United States
v. Harris, 990 F.2d 594 (11th Cir. 1993), addressed this issue in
a fact setting nearly identical to ours. There, the court reversed
a district court’s decision to impose consecutive sentences on
two counts of conviction based on the district court’s “desire
that the defendant have enough time . . . to undergo drug


                               15
treatment in a federal institution.” 990 F.2d at 595. It reasoned
that “[r]egardless of the laudable motive of the district court and
its sentencing determination that perhaps would give this
defendant the best chance for rehabilitation, . . . it is not within
the district court’s discretion.” Id. at 596 (citing 28 U.S.C.
§ 994(k); United States v. Mogel, 956 F.2d 1555, 1563 (11th
Cir. 1992) (“Rehabilitative considerations have been declared
irrelevant for purposes of deciding whether . . . to impose a
prison sentence and, if so, what prison sentence to impose.”)).
The Harris Court went on to note—correctly—that “this
prohibition relates only to the imprisonment part of a sentence
and not to any other terms of a sentence. In fact, the precise
factors that are not to be considered in imposing imprisonment
are set forth by statute as factors to be considered in imposing
sentence.” 990 F.2d at 596 (emphasis added) (citing 18 U.S.C.
§ 3553(a)(2)(D)).         “For instance,” the Court added,
“rehabilitation-oriented conditions are appropriate on supervised
release.” Id. (citing 18 U.S.C. § 3583(d)).

        These holdings from the Second and Eleventh Circuits
are consistent with congressional intent in passing the
Sentencing Reform Act. See Reese Bros., Inc. v. United States,
447 F.3d 229, 235 (3d Cir. 2006) (“Our role in interpreting a
statute is to give effect to Congress’[s] intent.”). The Senate
Report accompanying the Act3 noted generally that, “[i]n the


  3
  See Mistretta, 488 U.S. at 366 (“Helpful in our consideration
and analysis of the statute is the Senate Report on the 1984

                                16
federal system today, criminal sentencing is based largely on the
outmoded rehabilitation model. . . . [A]lmost everyone
involved in the criminal justice system now doubts that
rehabilitation can be induced reliably in a prison setting.” S.
REP. NO. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3221. Later, in its specific discussion of § 3582(a), the Report
explained further:

        Subsection (a) specifies, in light of current
        knowledge, that the judge should recognize, in
        determining whether to impose a term of
        imprisonment, “that imprisonment is not an
        appropriate means of promoting correction and
        rehabilitation.” This caution concerning the use
        of rehabilitation as a factor . . . is to discourage
        the employment of a term of imprisonment on the
        sole ground that a prison has a program that might
        be of benefit to the prisoner. This does not mean,
        of course, that if a defendant is to be sentenced to
        imprisonment for other purposes, the availability
        of rehabilitative programs should not be an
        appropriate consideration, for example, in
        recommending a particular facility.

Id. at 3302. In addition, the Report noted that probation and
supervised release were appropriate means to meet the


legislation . . . .”).

                                17
rehabilitative goals of § 3553(a)(2)(D). See id. at 3274
(“[W]hen the purpose of sentencing is to provide . . .
correctional treatment required for rehabilitation, given the
current state of knowledge, probation is generally considered to
be preferable to imprisonment.”); id. at 3307 (noting that a
“primary goal” of supervised release is “to provide rehabilitation
to a defendant who has spent a fairly short period in prison for
punishment or other purposes but still needs supervision and
training programs after release”).

        Rather than supporting the plain reading of the statute
and congressional intent as set out above, the Government
argues that § 3582(a) only prohibits a sentencing judge from
considering § 3553(a)(2)(D)’s rehabilitative goals when
selecting imprisonment as a component of the sentence in the
first place, but does not bar that consideration in determining the
length of that imprisonment. It is unclear what legal basis this
argument has, yet the Ninth Circuit Court of Appeals has
adopted it and suggested a textual rationale. In United States v.
Duran that Court wrote that

       [i]f Congress had intended to prohibit sentencing
       judges from considering correction and
       rehabilitation in setting the length of the sentence,
       it could have enacted a statute that admonished
       judges to recognize “that imprisonment or the
       length of imprisonment is not an appropriate
       means of promoting correction and


                                18
       rehabilitation.” It did not enact such a statute in
       18 U.S.C. § 3582.

37 F.3d 557, 561 (9th Cir. 1994) (emphasis in original).

        The problem with this observation is that the plain
language of § 3582(a) in fact does extend its prohibition to a
court’s determination of “the length of the sentence.” Id.; see 18
U.S.C. § 3582(a) (“The court, in determining whether to impose
a term of imprisonment, and, if a term of imprisonment is to be
imposed, in determining the length of the term, shall consider
the factors set forth in section 3553(a) . . . , recognizing that
imprisonment is not an appropriate means of promoting
correction and rehabilitation.” (emphasis added)).            The
possibility that a clearly worded statute might be even more
clearly worded does not negate the fact that it is already clear.
Only the Eighth Circuit, in United States v. Hawk Wing, 433
F.3d 622 (8th Cir. 2006), has agreed with the Ninth Circuit on
this issue. Hawk Wing, however, offers no additional analysis
beyond that in Duran, see id. at 629–30, and we decline to adopt
the latter’s reading of § 3582(a).4

  4
   The Government cites for additional support United States v.
Jackson from the Sixth Circuit Court of Appeals. 70 F.3d 874
(6th Cir. 1995). The issue in Jackson was whether it was proper
for a district court to seek rehabilitative goals in revoking
supervised release. See id. at 879. However, this is an issue
entirely different from determining what an initial sentence
should be, as the revocation of supervised release is governed by

                               19
18 U.S.C. §§ 3583(e) and (g), which mandate consideration of
§ 3553(a), but not of § 3582(a). See, e.g., United States v.
Tsosie, 376 F.3d 1210, 1214–17 (10th Cir. 2004); United States
v. Brown, 224 F.3d 1237, 1239–42 (11th Cir. 2000); Jackson, 70
F.3d at 880–81; Anderson, 15 F.3d at 280–83. Anything in
Jackson regarding the role of rehabilitation in determining a
defendant’s initial sentence, therefore, is dicta. The same
infirmity also applies to the Government’s citation to United
States v. Giddings from the Fifth Circuit Court of Appeals. 37
F.3d 1091, 1094–96 (5th Cir. 1994) (“We need not, and do
not[,] decide whether a district court may properly consider a
defendant’s rehabilitative needs in deciding whether, as an
initial matter, imprisonment is warranted.”).
        The Government also cites United States v. Lara-
Velasquez, 919 F.2d 946 (5th Cir. 1990). The district court there
refused to consider the defendant’s rehabilitative potential in
determining where, within the then-mandatory Guidelines range,
to sentence him. The Fifth Circuit reversed, stating that a
district court may do so. Id. at 956–57. Though this position is
at odds with our reading of § 3582(a), Lara-Velasquez did not
consider that section’s relevance to its decision. The closest it
came was in a footnote, which noted the truism that nothing in
§ 3582(a) “preclude[d] the district court’s consideration of the
defendant’s rehabilitative potential as a mitigating factor at
sentencing.” Id. at 956 n.13. We certainly agree with that
statement, but do not find it instructive on the precise issue
presented in our case.
        Manzella, on the other hand, argues that the Tenth Circuit
Court of Appeals has joined the Second and Eleventh Circuits,
citing Tsosie, which noted in a dictum that “[a]lthough [it] has

                               20
That section restricts a sentencing court’s discretion in
determining the length of a defendant’s term of imprisonment,
just as it does for the initial selection of imprisonment, when
“promoting correction and rehabilitation.”

        We find the reasoning of the Second and Eleventh
Circuits consistent with the plain language as well as the intent
of the Sentencing Reform Act. It is the policy of the United
States Congress, clearly expressed in law, that defendants not be
sent to prison or held there for a specific length of time for the
sole purpose of rehabilitation. Instead, that legitimate goal of
sentencing is to be accomplished through other authorized forms
of punishment.5


not yet had reason to comment on the specific import of
[§ 3582(a)], the other circuits have recognized its clear
mandate—when imposing an original sentence to a term of
imprisonment, it is inappropriate for the district court to
consider rehabilitation of the defendant as the sole purpose for
imprisonment.” 376 F.3d at 1214. This statement, however,
offers no support for the argument that § 3582(a)’s prohibition
extends to determining the length of imprisonment. It merely
recites the undisputed proposition that rehabilitation cannot be
a court’s sole reason for imposing a term of imprisonment in the
first place.
   5
    In addition to violating statutory commands, we also note
potential due process concerns in sentencing a defendant to a
term of imprisonment simply because she is addicted to a
controlled substance. McMillan v. Pennsylvania, 477 U.S. 79,

                               21
       In this case, the circumstances of the sentencing hearing
clearly indicate that the District Court sentenced Manzella to a
prison term of 30 months for rehabilitative purposes (i.e., so that
she would be eligible for the Bureau of Prisons’s 500-hour drug
treatment program). At the outset, the Court expressly stated
what it hoped to accomplish with Manzella’s sentence:

       It is obvious that the short-term incarcerations and
       the drug treatment programs to date have not been
       sufficient to help [Manzella] work through her
       issues. The drug treatment program of 500 hours
       is the best program that is available in the federal
       correctional system and requires a minimum of 36
       months in order to participate in that program.

Later, after the Court sentenced Manzella to a 36-month term
and Manzella’s attorney suggested that a lesser term might be
sufficient to accomplish its specific rehabilitative aim, the Court
recessed to investigate the question. Upon determining the
answer, it then amended Manzella’s term to 30 months. There
can be no conclusion but that the Court set the length of


87–90 (1986); United States v. Mobely, 956 F.2d 450, 459 (3d
Cir. 1992). Because the parties have not raised or briefed this
issue, and because we avoid deciding constitutional questions if
possible, we do not address it. See Hagans v. Lavine, 415 U.S.
528, 547 (1974) (“[A] federal court should not decide federal
constitutional questions where a dispositive nonconstitutional
ground is available.”).

                                22
Manzella’s prison term solely for rehabilitative reasons. Despite
its good intentions, this was error.6

       B. Reasonableness

        Additionally, we have said that “[m]erely reciting the
§ 3553(a) factors, saying that counsel’s arguments have been
considered, and then declaring a sentence, are insufficient to
withstand our reasonableness review.” United States v. Jackson,
467 F.3d 834, 842 (3d Cir. 2006); see also Cooper, 437 F.3d at
329 (“[A] rote statement of the § 3553(a) factors should not
suffice if at sentencing either the defendant or the prosecution
properly raises a ground of recognized legal merit (provided it
has a factual basis) and the court fails to address it.” (internal
quotation marks omitted)). “Instead, the record must show a
true, considered exercise of discretion on the part of a district
court, including a recognition of, and response to, the parties’
non-frivolous arguments.” Id. at 841. Moreover, the more that
a sentence varies from the advisory Guidelines range, the more
compelling the supporting reasons must be. See United States

  6
    At oral argument, defense counsel reported that the Bureau
of Prisons did place Manzella in the 500-hour drug treatment
program. She is scheduled to complete the prison portion of the
program in July 2007—well before the end of her 30-month jail
term. This situation, assuming it is true, offers a classic example
of why Congress instructed that the length of a defendant’s
prison term not be determined based on the rehabilitative goals
of sentencing.

                                23
v. King, 454 F.3d 187, 195 (3d Cir. 2006).7

        The District Court’s list of reasons for imposing
Manzella’s sentence primarily constituted a rote recitation of the
§ 3553(a) factors. Jackson, 467 F.3d at 842; Cooper, 437 F.3d
at 329. Of the two substantive reasons given, one was
statutorily prohibited, as explained above.           The other
(Manzella’s pre-trial release violations), while adequate to
justify some term of incarceration, cannot alone justify in this
case a sentence nearly four times the advisory Guidelines range.
King, 454 F.3d at 195. Finally, the record does not reflect why
the Court disagreed with defense counsel’s argument that an
alternative sentence would have accomplished the Court’s
rehabilitative goals. Jackson, 467 F.3d at 841; Cooper, 437 F.3d
at 329. We require more than this to facilitate meaningful
reasonableness review.

                        *   *   *    *   *

       We hold that 18 U.S.C. § 3582(a) prohibits a sentencing
court from effecting the rehabilitative goals of 18 U.S.C.
§ 3553(a)(2)(D) either in sentencing a defendant to a term of
imprisonment or, if a term of imprisonment is otherwise to be
imposed, in determining the length of that term. Other options


  7
   But see United States v. Claiborne, 439 F.3d 479 (8th Cir.
2006), cert. granted 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No.
06-5618) (considering the propriety of such a rule).

                                24
must be employed to foster a defendant’s rehabilitation.8
Because the District Court relied on a statutorily prohibited
justification in setting the length of Manzella’s sentence, and
because the record does not reflect an adequate consideration of
the § 3553(a) factors (making it “unreasonable”), Manzella’s
sentence was “imposed in violation of the law.” 18 U.S.C.
§ 3742(a). We vacate that sentence and remand this case for re-
sentencing.9




    8
    For example, on remand the District Court may find it
appropriate to impose a sentence that includes prison along with
community confinement or home detention, which could be
conditioned on attendance at a drug rehabilitation program.
   9
     We do not reach the argument that Manzella’s sentence
violates the Ex Post Facto Clause of the Constitution.

                              25
