     Case: 11-10627    Document: 00512003720         Page: 1    Date Filed: 09/28/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                      September 28, 2012

                                      No. 11-10627                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA

                                                 Plaintiff-Appellee
v.

JULIE ANN RECESKEY

                                                 Defendant-Appellant



                  Appeal from the United States District Court
                  for the Northern District of Texas, Fort Worth
                                  4:09-CR-42-1


Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner Julie Ann Receskey (“Receskey”) appeals her revocation
sentence because she contends the length of her sentence was impermissibly
based on the court’s perception of her rehabilitative needs in violation of Tapia
v. United States, 131 S. Ct. 2382 (2011). The district court sentenced Receskey
to 30 months of imprisonment upon revocation of her supervised release, which



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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was above the recommended guideline range. Receskey challenges the
reasonableness of that sentence, arguing that the district court imposed it for the
sole purpose of allowing her to participate in available drug treatment programs.
We conclude that while the district court discussed opportunities for
rehabilitation, it did not base Receskey’s sentence or lengthen the sentence for
rehabilitative purposes and that the sentence is not plainly unreasonable. We
therefore affirm.


                                           I.
      Receskey      pled   guilty   to   possession   with   intent   to   distribute
methamphetamine. The district court sentenced her to 46 months in prison and
5 years of supervised release. Her supervised release began on May 2, 2008. In
June of 2011, Receskey’s probation officer charged Receskey with multiple
violations of the conditions of her supervision, including heroin use and failure
to comply with her required inpatient substance abuse and mental health
treatment.
      The district court held a revocation hearing on June 23, 2011. At the
hearing, Receskey pled true to all allegations. Receskey’s attorney said that
while her problems stemmed from drug addiction, she had shown herself capable
of staying off of drugs for long periods and of working successfully at a job. He
urged a sentence within the recommended guideline range of 3-9 months. The
court engaged Receskey in a discussion of some of her past problems with drugs
and the law. It noted the leniency of her 46 month sentence in light of her drug
charges and found that despite previous violations of her conditions of release,
her release had not been revoked in those instances.


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       The district court revoked Receskey’s supervised release and sentenced her
to 30 months in prison and an additional 24 months of supervised release. Due
in large part to the fact that the defendant was charged with violating her
supervised release because of a number of positive drug tests, counsel’s and
Receskey’s statements focused on her history of drug addiction and her efforts
to avoid drugs for extended periods of time. The district court questioned
Receskey about her history of drug use and past failed treatment attempts,
recited her criminal history and past “lenient” treatment, and noted her
violations of the terms of supervised release. The district court then stated:
              I agree that it’s a drug problem, it’s a bad drug problem,
              but I’ve considered the possibility of a sentence within
              that policy statement range, and I don’t think a
              sentence within that range would begin to adequately
              and appropriately address the factors the Court should
              consider under Section 3583(a) of Title 18.1 To the
              extent they are applicable in a revocation context, I
              don’t think a sentence of 3 to 9 months would begin to
              address that.

              I’m inclined to think that a sentence of 30 months,
              followed by a term of supervised release of 24 months,
              would be a sentence that would adequately and
              appropriately address the factors the Court should
              consider in sentencing.

              And that would give the Bureau of Prisons time to
              allow you to participate in the drug treatment program
              or programs they have available, and I would hope that
              they would be in the position to give you some
              assistance in whatever mental problems you might


       1
       Presumably the district court intended to refer to the § 3553(a) factors here.
Because § 3583 refers back to the § 3553(a) factors, it makes little difference.

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              have, so I would recommend both of those things, that
              you be -- your sentence be served in a place where they
              could provide mental health treatment and drug
              treatment intervention, and that you be actually
              permitted to participate in programs for those purposes.
Receskey’s counsel objected to the sentence as unreasonable, “particularly to the
extent if the sentence is premised on the availability of rehabilitation programs
in prison.”

                                         II.
      Because Receskey raised this argument before the district court, we apply
a “plainly unreasonable” standard when reviewing a sentence of imprisonment
imposed upon revocation of supervised release. United States v. Miller, 634 F.3d
841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). Under that standard, this
court must “evaluate whether the district court procedurally erred before [it]
consider[s] the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. (internal quotation marks omitted). “If a
sentence is unreasonable, then we consider whether the error was obvious under
existing law.” Id.


                                        III.
                                        A.
      Receskey first objects to the use of the “plainly unreasonable” standard
exercised by this court when reviewing post-revocation sentences. Receskey
concedes this argument is foreclosed and is raised only to preserve the issue. See
id. She argues that her revocation sentence should instead be reviewed under
a “reasonableness” standard.      Because this court has held that sentences


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imposed upon revocation of supervised release are reviewed under the plainly
unreasonable standard, Id. (“The ‘plainly unreasonable’ standard is . . . proper
given that the goal of revocation is to punish a defendant for violating the terms
of the supervised release.”), this contention merits no further discussion.
                                     B.
      Receskey argues that her sentence is both unreasonable and plainly
unreasonable because the district court erred by considering rehabilitation in
arriving at the sentence, in violation of Tapia v. United States, 131 S. Ct. 2382
(2011).
      The district court may revoke a term of supervised release and impose a
maximum prison sentence as allowed by the revocation statute, which in this
case was a maximum prison term of 3 years. See 18 U.S.C. § 3583(e)(3) (2006).
In imposing a revocation sentence, the district court must consider the factors
enumerated in 18 U.S.C. § 3553(a) and the nonbinding policy statements found
in Chapter Seven of the Sentencing Guidelines. See United States v. Mathena,
23 F.3d 87, 90-93 (5th Cir. 1994); § 3583(e).
      However, in Tapia, the Supreme Court held that a district court “may not
impose or lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” 131 S. Ct. at 2393.
Because the Government in the instant case concedes that the rule of Tapia
applies in the revocation context, we assume without deciding that Tapia applies
and conclude that the district court did not violate Tapia in sentencing Receskey.
      In Tapia, the Supreme Court held that 18 U.S.C. § 3582(a) “precludes
sentencing courts from imposing or lengthening a prison term to promote an
offender’s rehabilitation.” Id. at 2391. The Court relied on the text of


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§ 3582(a), which provides:
            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 [18 U.S.C. 3553(a)] to the extent that
            they are applicable, recognizing that imprisonment is not an
            appropriate means of promoting correction and rehabilitation.
Under that textual direction, the Court explained, “when sentencing an offender
to prison, the court shall consider all the purposes of punishment except
rehabilitation – because imprisonment is not an appropriate means of pursuing
that goal.” Tapia, 131 S. Ct. at 2389.
      Tapia, however, made clear that district courts do not err by discussing
the rehabilitative opportunities within prison or by urging the Bureau of Prisons
(“BOP”) to place an offender in a treatment program: “A court commits no error
by discussing the opportunities for rehabilitation within prison or the benefits
of specific treatment or training programs.” Id. at 2392. Far from error, “a court
properly may address a person who is about to begin a prison term about these
important matters.” Id. Finally, the Court explained that a sentencing judge
“may urge the BOP to place an offender in a prison treatment program.” Id.
Thus, Tapia recognized a distinction between basing or lengthening a sentence
on rehabilitative needs and merely discussing opportunities for rehabilitation in
prison. Because the district court in Tapia suggested that it increased the length
of the defendant’s prison sentence in order to make her eligible for the 500-hour
Residential Drug Abuse Program run by the BOP, the Court remanded the case
for further consideration. Id. at 2392-93 (noting the district court’s language that
“the sentence has to be sufficient to provide needed correctional treatment, and
here I think the needed correctional treatment is the 500 Hour Drug Program”).


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      In contrast, in United States v. Teel this court found that the district court
did not commit Tapia error during sentencing when “nothing in the record
suggest[ed] that the district court actually lengthened [defendant’s] sentence
based on its consideration of his need of alcohol rehabilitation” and the court did
not “reference any specific treatment program in the future that would require
lengthening [his] sentence.” No. 11-60509, 2012 WL 3324286, at *7 (5th Cir.
Aug. 14, 2012). In United States v. Pickar, the district court recited a number of
reasons for imposing a 150-month sentence including defendant’s long criminal
record and inability to stay out of jail; defendant was a danger to the public; and,
important to our purposes, “I believe that a long sentence is necessary to provide
Mr. Pickar with needed care and treatment.” 666 F.3d 1167, 1169 (8th Cir.), cert.
denied, 132 S. Ct 2704 (2012). In affirming the sentence the court concluded
that a desire to protect the public and the need for deterrence were the
“dominant factors in the court's § 3553(a) analysis.” Id. (emphasis added). Thus
while a consideration of rehabilitative needs may have been a secondary concern
for the district court, because it was not a dominant factor in sentencing, the
Eighth Circuit held that the court did not impermissibly lengthen the
defendant’s sentence on account of rehabilitation and affirmed the conviction.
See id. at 1169-70. Similarly, in United States v. Cardenas-Mireles, the Tenth
Circuit stated that “the question is not merely whether the district court had
[defendant’s needs] on its mind when it issued his sentence, but whether the
court’s assessment of [defendant’s needs] actually changed the sentence the
court would otherwise have imposed.” 446 F.App'x 991, 994-95 (10th Cir. 2011).
Thus the court found no Tapia error when the “district court indicated
Cardenas-Mireles's extensive criminal record justified a 96-month sentence,


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independent     of   the   court's   concerns   regarding     his   health”   and
“Cardenas-Mireles's health was, at best, an additional justification, but not a
necessary justification, for the 96-month sentence." Id. at 995 (emphasis in
original).
      This court has applied Tapia to vacate initial sentences that were based
on an explicit consideration of a defendant’s rehabilitative needs. For example,
an above-guidelines sentence was vacated and remanded for resentencing where
the district court relied on the need for rehabilitation as evidenced by its
statements that the defendant “needs help badly,” that the defendant “needs
medical care and treatment,” and that there was a “compelling . . . need to
incarcerate this individual for the treatment that he needs.” United States v.
Broussard, 669 F.3d 537, 552 (5th Cir. 2012) (noticing error sua sponte and
applying plain error review). Similarly, in United States v. Escalante-Reyes this
court, applying plain error review, found that the district court committed Tapia
error when it stated, inter alia, “Well there’s a temper and anger problem here
. . . And that’s got to be the basis for what good prison will do for this
Defendant.” No. 11-40632, 2012 WL 3024195, at *5 (5th Cir. July 25, 2012) (en
banc). Accord United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir. 2011)
(remanding initial sentence under plain error review based on the district court’s
statement that the defendant “needs a sentence of at least 56 months to be able
to successfully complete [the BOP drug] program together with mental health
counseling”).
      Other courts have found no Tapia error when the district court merely
discussed rehabilitation during a defendant’s initial sentencing. See, e.g., United
States v. Gilliard, 671 F.3d 255, 257-58 (2d Cir. 2012) (“After imposing a term


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of 96 months’ imprisonment, the district court stated its intent to recommend to
the [BOP] that Gilliard be placed close to family and in a facility with effective
drug treatment programs.”); United States v. Lucas, 670 F.3d 784, 795 (7th Cir.
2012) (“[T]he mere mention that Lucas would have the opportunity to take part
in rehabilitative programs is not prohibited under Tapia.”); United States v.
Blackmon, 662 F.3d 981, 987 (8th Cir. 2011) (“[T]he district court never
expressed an intention to lengthen Blackmon’s sentence for rehabilitative
purposes [and] the fact that the district court discussed the BOP’s program with
Blackmon is not dispositive.”).
     Cases that have found Tapia error in the context of supervised release
revocation have featured district courts lengthening a defendant’s sentence
expressly to make him or her eligible for a BOP treatment program. For
example, in United States v. Grant, “the judge made it plain that he was giving
Grant more time in prison in order to facilitate his [drug and alcohol]
rehabilitation.” 664 F.3d 276, 278 (9th Cir. 2011). There the district court said,
“in talking with [the Bureau of Prisons], in order to get you into the kind of
programs we need to get you in, we need at least 24 months. And that’s one of
the reasons I selected the time.” Id. at 279 (alteration in original). Likewise, the
First Circuit held that Tapia error occurred when the district court resentenced
with the “objective of tailoring the length of imprisonment to provide adequate
time for treatment.” United States v. Molignaro, 649 F.3d 1, 2 (1st Cir. 2011)
(Souter, J. (Ret.), sitting by designation); see also United States v. Taylor, 679
F.3d 1005, 1007 (8th Cir. 2012) (finding district court plainly erred by sentencing
defendant to 24 months based on district court’s statement that it was “using
that number because that makes him eligible to participate in the 500-hour drug


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program”).
      Here Receskey contends that the district court erred because it lengthened
her sentence based on rehabilitative needs. The court’s remarks at sentencing
do not support this argument. The court did not base the length of Receskey’s
sentence on rehabilitative needs; rather it addressed the fact that Receskey had
wasted many opportunities, stated its intention to apply the statutory
sentencing factors, and then articulated a sentence. Only after doing so did the
court discuss opportunities for rehabilitation and urge Receskey to take
advantage of them. Based on the court’s discussion, concern over rehabilitation
may have been an “additional justification,” but it was not a “dominant” factor
in the court’s analysis. See Cardenas-Mireles, 446 F.App'x at 995; Pickar, 666
F.3d at 1169. Unlike Grant, Molignaro, or Taylor, where the court stated it was
making the revocation sentence long enough to assure treatment, here the court
did not indicate an intention that Receskey’s sentence be long enough to allow
her to get into any specific drug treatment program and instead merely
referenced whatever “program or programs [the BOP has] available.” See Grant,
664 F.3d at 279; Molignaro, 649 F.3d at 2; Taylor, 679 F.3d at 1007.         Its
general comment that it “would hope” Receskey would take advantage of
whatever programs the BOP might offer came only after it explicitly referenced
and considered the statutory factors and was designed to encourage Receskey to
take advantage of these programs. Because the district court did not impose or
lengthen defendant’s prison term for the purpose of making Receskey eligible for
any rehabilitative program, it is not plainly unreasonable under Tapia.


                                      IV.


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   For the foregoing reasons, we AFFIRM Receskey’s sentence.
   Judge Haynes concurs in the judgment only.




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