            Case: 17-12834   Date Filed: 01/26/2018   Page: 1 of 3


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12834
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:08-cr-00064-EAK-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RAFAEL ANTONIO LOPEZ,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (January 26, 2018)

Before ED CARNES, Chief Judge, TJOFLAT, and NEWSOM, Circuit Judges.

PER CURIAM:
              Case: 17-12834     Date Filed: 01/26/2018   Page: 2 of 3


      Rafael Lopez challenges his 24-month prison sentence imposed for violating

his supervised release conditions. He contends, and the government concedes, that

the district court procedurally erred by considering Lopez’s rehabilitative needs in

sentencing him to 24 months.

      Lopez served a 70-month sentence for possessing a firearm and ammunition

as a convicted felon and then began serving a three-year term of supervised

release. He violated the conditions of his supervised release and pleaded guilty to

those violations at his revocation hearing. His guidelines range was 7 to 13 months

in prison, with a statutory maximum of 24 months. The probation office

recommended 24 months. The government sought 13 months. Lopez asked for 7

months.

      The court sentenced Lopez to 24 months and recommended a 500-hour drug

treatment program. It explained that it was giving Lopez 24 months so that he

could “get the chance” to do the drug treatment program and that it was “trying to

get [him] in [the prison] for the 500-hour program.” Lopez objected to the

sentence on the ground that it violated the Supreme Court’s holding in Tapia v.

United States, 564 U.S. 319, 332, 131 S. Ct. 2382, 2391 (2011), that sentencing

courts cannot “impos[e] or lengthen[] a prison term to promote an offender’s

rehabilitation.” The district court overruled his objection and stated: “You are

getting the 24 [months] because you need to have that much time for the 500-hour.


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               Case: 17-12834     Date Filed: 01/26/2018     Page: 3 of 3


You are going to be in a line. If you get in that line, it will be a long line, but I’m

trying to get you in the 500-hour program.” This is Lopez’s appeal.

      The government concedes that the district court committed Tapia error by

imposing the 24-month sentence so that Lopez would have enough time to

complete the 500-hour drug treatment program. See United States v. Alberts, 859

F.3d 979, 986 (11th Cir. 2017) (stating that a district court committed Tapia error

where it told the defendant that he “needed a period of time where he [could]

receive the treatment that he should have”) (alterations and quotation marks

omitted); United States v. Vandergrift, 754 F.3d 1303, 1309 (11th Cir. 2014)

(concluding that Tapia “applies in the context of resentencing upon the revocation

of supervised release”). As a result, this case must be remanded for resentencing.

      VACATED AND REMANDED.




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