                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 18, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 15-7005
                                              (D.C. No. 6:00-CR-00061-FHS-1)
 CHARLES RUSSELL STEELE,                                (E.D. Okla.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McHUGH, Circuit Judges. **


      Defendant - Appellant, Charles Russell Steele, violated his conditions of

release by testing positive for methamphetamines. Both counsel and Mr. Steele

requested long-term drug treatment as part of his sentence because the 30-day

program he had participated in previously was insufficient. 2 R. 28–29. Though

Mr. Steele’s guideline range for the violation was four to ten months, U.S.S.G.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
§ 7B1.4(a), the district court sentenced him to twenty months’ imprisonment,

noting that only a sentence over eighteen months would enable Mr. Steele to get

the benefit of drug treatment in a federal facility. Id. at 29. At no point did Mr.

Steele object to the sentence.

      On appeal, Mr. Steele argues that the district court committed procedural

error by imposing a longer sentence so that he would be eligible for a Bureau of

Prisons’ drug treatment program. Aplt. Br. 6 (citing Tapia v. United States, 131

S. Ct. 2382, 2393 (2011); United States v. Mendiola, 696 F.3d 1033, 1042 (10th

Cir. 2012)). He contends that this error satisfies the plain error standard. The

government agrees that procedural error occurred and contends that, although a

variety of other sentencing factors could support the sentence imposed, the case

should be remanded for resentencing. Aplee. Br. 3–4.

      At first blush, the doctrine of invited error, under which invited errors are

deemed waived, appears to apply. 1 See United States v. Carrasco-Salazar, 494

F.3d 1270, 1272–73 (10th Cir. 2007) (defendant barred from resurrecting

objection to presentence report after affirmatively conceding to the district court

that all objections had been resolved). As we have explained, waived challenges,

unlike forfeited challenges, are not subject to review for plain error. United

States v. Teague, 443 F.3d 1310, 1315 (10th Cir. 2006). In distinguishing

      1
        Although the government does not argue waiver by invited error, we may
consider it sua sponte. United States v. Mancera-Perez, 505 F.3d 1054, 1057 n.3
(10th Cir. 2007).

                                        -2-
between waiver and forfeiture, we have noted that “waiver is accomplished by

intent, [but] forfeiture comes about through neglect.” United States v. Zubia-

Torres, 550 F.3d 1202, 1205 (10th Cir. 2008) (quoting Carrasco-Salazar, 494 F.3d

at 1272).

      Mr. Steele and his counsel urged the district court to “consider sending Mr.

Steele to a long-term drug treatment facility,” and the district court complied by

ordering a sentence that would make this possible. 2 R. 28. However, given a

more searching review, it is unclear whether Mr. Steele intended to seek a

lengthier prison sentence in order to avail himself of such treatment, or, instead,

long-term drug treatment instead of imprisonment. On the one hand, a lengthier

sentence was essential for Mr. Steele to benefit from a taxpayer-subsidized drug

treatment program while incarcerated, according to the district court. Id. at 29.

On the other, certain comments by Mr. Steele’s counsel, such his request for “a

90 day program” and argument that Mr. Steele had already served “half of the

bottom of the guideline range” while awaiting sentencing, suggest that Mr. Steele

aspired to long-term drug treatment without the imposition of a lengthier

sentence. 2 R. 26–28.

      In cases where invited error has barred review of sentencing error, the

defendant’s intentional relinquishment of an argument was more apparent and

direct than here. See, e.g., Mancera-Perez, 505 F.3d at 1057 (defendant barred

from appealing forty-six month sentence where he conceded appropriateness of

                                         -3-
sentence to district court); Teague, 443 F.3d at 1316–17 (defendant barred from

challenging conditions of supervised release that counsel had proposed and

defendant had affirmatively agreed to). Thus, although it is a close call, we do

not consider Mr. Steele’s argument waived. 2

      Accordingly, we accept the parties’ contentions that Mr. Steele’s sentence

constituted plain error under Tapia, 131 S. Ct. 2382, and Mendiola, 696 F.3d

1033, and that Mr. Steele must be resentenced in compliance with these decisions.

We express no opinion on the appropriate sentence.

      REMANDED to the district court with directions to VACATE the sentence

and resentence.

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




      2
         We certainly do not fault the district court for its equitable solution,
particularly given the urging of Mr. Steele and his counsel, with no objection
from either side.

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