                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0230n.06

                                          No. 14-1424
                                                                                    FILED
                                                                               Mar 26, 2015
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE EASTERN DISTRICT OF
JOHN GESING,                                          )   MICHIGAN
                                                      )
        Defendant-Appellant.                          )



        BEFORE: GUY, MOORE, and McKEAGUE, Circuit Judges.


        PER CURIAM. John Gesing, a federal prisoner, appeals through counsel the 24-month

sentence of imprisonment imposed upon the revocation of his period of supervised release.

        In 2011, Gesing entered a guilty plea to a charge of interstate transportation of stolen

property. He was sentenced to 36 months of probation. After only two months, his probation

was revoked and he was sentenced to seven months of imprisonment and two years of supervised

release. After Gesing served his term of imprisonment and commenced his supervised release,

the terms of his release were amended to call for placement in a community corrections center

for the duration. Gesing again violated the terms of his supervised release by, among other

things, using controlled substances, associating with a known criminal, and failing to pay

restitution.

        A hearing was held at which Gesing admitted these violations. The sentencing guidelines

range was computed at four to ten months of imprisonment. The district court imposed a
No. 14-1424
United States v. Gesing

sentence of two years in prison, stating, “I hope while you are in prison . . . that you could take

advantage of a short-term drug program, there is a longer drug program which I really would like

to see you get into but I understand you need more time than that, and the statutory maximum I

can give you is two years.” The term was not to be followed by any additional supervised

release period. Counsel for Gesing objected that two years was longer than necessary for

punishment, deterrence, or protection of the public. The district court agreed that the two-year

sentence was not necessary for protection of the public or punishment, but explained “that the

element that affects this case the most is the one with providing the defendant with needed

medical care.” The court concluded by advising Gesing that he needed three things: “a strong

showing that you can’t get away with this type of conduct,” . . . “a lot of time to sit and think

about what you have done,” and “help.”

       We review a sentence imposed on revocation of supervised release for reasonableness

under an abuse of discretion standard. United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007).

A sentence based on an impermissible factor is substantively unreasonable. United States v.

Deen, 706 F.3d 760, 762 (6th Cir. 2013). In Tapia v. United States, 131 S. Ct. 2382, 2391-93

(2011), the Supreme Court held that a court may not impose or lengthen a prison sentence to

promote rehabilitation. That holding applies to sentences imposed on revocation of supervised

release. Deen, 706 F.3d at 765–67. In Deen, we recognized that a sentencing court may discuss,

encourage, and even recommend a defendant’s participation in prison treatment programs. Id. at

768. Cognizable error occurs only when the perceived rehabilitative benefits of incarceration are

“the reason” for imposing or lengthening a prison sentence. Id. (quoting United States v. Grant,

664 F.3d 276, 282 (9th Cir. 2011)).




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No. 14-1424
United States v. Gesing

       The government contends the district court’s discussion of Gesing’s need for drug abuse

treatment was in the nature of a recommendation and did not run afoul of Tapia, citing United

States v. Krul, 774 F.3d 371 (6th Cir. 2014). In Krul, the sentencing court justified imposition of

a 63-month sentence by considering such factors as the defendant’s extensive criminal history,

the seriousness of the offense, the need to promote respect for the law, the need to afford

adequate deterrence, and the need to protect the public. Id. at 373–74. The court noted that the

period of incarceration would also afford opportunity for participation in educational,

correctional and medical programs. We upheld the sentence because we found no basis for

concluding that the court impermissibly calculated the length of the sentence to ensure receipt of

certain rehabilitative services. Id. at 375–76. We thus refused to give Tapia such an expansive

reading as to require resentencing whenever “it is merely possible” that rehabilitation was a

sentencing factor. Id. at 375.

       This case is different. Considering the district court’s history with defendant Gesing,

Gesing’s repeated failures, and the court’s use of progressive discipline, we would be inclined to

hold there was no abuse of discretion, consistent with Krul—but for what the court said in

response to Gesing’s counsel’s objection. As the court varied upward from the guidelines range

of four to ten months, exceeded the government’s recommendation of a sentence at the upper end

of the range, and imposed the statutory maximum of 24 months’ imprisonment, the court

candidly acknowledged that the most significant factor was Gesing’s need for medical care. The

court expressly disclaimed reliance on the need for punishment or the need for protection of the

public as justifications for the admittedly “hard sentence.” On this record, we cannot but find

that the district court’s “hope” for rehabilitation played a determinative role in the length of the

prison term imposed.      The two-year sentence, as imposed, thus contravenes Congress’s


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No. 14-1424
United States v. Gesing

admonition in the Sentencing Reform Act “that imprisonment is not an appropriate means of

promoting correction and rehabilitation,” as interpreted in Tapia. 18 U.S.C. § 3582(a).

       Accordingly, we hold that the sentence imposed, based in part on an impermissible

factor, is substantively unreasonable. We therefore VACATE the judgment of sentence and

REMAND the case to the district court for resentencing.




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