 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 20, 2012          Decided February 5, 2013

                        No. 10-3105

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                      JOSHUA GODOY,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:10-cr-00161-1)


    Jerry Ray Smith, appointed by the court, argued the cause
and filed the briefs for appellant.

    Angela G. Schmidt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III,
Elizabeth Trosman, and David S. Johnson, Assistant U.S.
Attorneys.

    Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.
                              2
     GRIFFITH, Circuit Judge: Over the course of four years,
Joshua Godoy committed multiple acts of identity theft. He
acquired birth dates, social security numbers, and the like
from strangers, acquaintances, and even family members.
With that information, he drained bank accounts, bought cell
phones on others’ credit, and had Costco ship him a fifty-inch
plasma screen TV. The government caught him, and Godoy
quickly pled guilty to the federal crime of mail fraud. See 18
U.S.C. § 1341. The district court sentenced him to sixty
months in prison followed by thirty-six months of supervised
release and ordered him to pay $67,764.33 in restitution to his
victims. Godoy appeals his sentence, and we have jurisdiction
to hear his appeal pursuant to 18 U.S.C. § 3742(a). We affirm
the district court, with one modification.

                               I

     At the outset, the government argues that Godoy’s plea
agreement waived his right to this appeal. We might agree if
we looked only to the language of the plea. Godoy expressly
waived “the right to appeal his sentence or the manner in
which it was determined pursuant to 18 U.S.C. § 3742, except
to the extent that the Court sentences [him] to a period of
imprisonment longer than the statutory maximum.” 1 Godoy’s
sentence is well below the twenty-year statutory maximum for
mail fraud. See 18 U.S.C. § 1341. But in a colloquy during his
plea hearing, the district court mischaracterized the meaning
of the waiver in a fundamental way: “[Y]ou have given up
your right to appeal except should you come to believe after
consulting with counsel that the Court has done something
illegal, such as imposing a period of imprisonment longer

    1
       18 U.S.C. § 3742 enables defendants to appeal sentencing
decisions, but limits their ability to appeal sentences imposed
pursuant to plea agreements.
                              3
than the statutory maximum.” Transcript of the Plea Hearing
at 7 (emphasis added.) Taken for its plain meaning—which is
how criminal defendants should be entitled to take the
statements of district court judges—the court’s explanation
allows Godoy to appeal any illegal sentence.

     The government asks us to interpret the district court’s
use of “such as” to mean “limited to.” We decline to do so.
The phrase “such as” typically indicates that enumerated
examples are not comprehensive. For instance, when Justice
Thomas discusses the “rights enumerated in the Constitution,
such as the freedom of speech,” he is referring to the whole
set of enumerated constitutional rights, and not just the one.
McDonald v. City of Chicago, __ U.S. __, 130 S. Ct. 3020,
3077 n.15 (2010) (Thomas, J., concurring) (emphasis added).
Similarly, in the present case, the category of “something
illegal” includes the imposition of a sentence that exceeds the
twenty-year statutory maximum, but it certainly is not limited
to that. Rather, the category of illegal sentences includes the
types of statutory and constitutional violations Godoy alleges.

     “[C]riminal defendants . . . ‘need to be able to trust the
oral pronouncements of district court judges.’” United States
v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (quoting United
States v. Buchanan, 59 F.3d 914, 918 (9th Cir. 1995)). That
trust is maintained by enforcing their pronouncements in
situations like this. As Rule 11(b) of the Federal Rules of
Civil Procedure requires,

    Before the court accepts a plea of guilty . . . the court
    must address the defendant personally in open court.
    During this address, the court must inform the defendant
    of, and determine that the defendant understands . . . the
    terms of any plea-agreement provision waiving the right
    to appeal or to collaterally attack the sentence.
                               4

FED. R. CRIM. P. 11(b). Ideally, such colloquies are
straightforward. The court explains the waiver provision, and
the defendant demonstrates that he understands and accepts
that provision. But when a court mischaracterizes a waiver
provision “during this address,” a defendant can hardly be
taken to comprehend, let alone accept. Here, the district court
inaccurately rephrased the written waiver during the colloquy.
Therefore, Godoy had no chance to demonstrate that he
understood and accepted what it meant.

     The government could have objected at the hearing to the
district court’s mischaracterization, but it did not. As a sister
circuit court has held, “[g]iven the district court judge’s clear
statements at sentencing, the defendant’s assertion of
understanding, and the prosecution’s failure to object, we hold
that in these circumstances, the district court’s oral
pronouncement controls . . . .” Buchanan, 59 F.3d at 918. We
apply the same reasoning here. Because the district court’s
oral pronouncement controls, Godoy’s appeal is not barred. 2

                               II

     Turning to the merits of his appeal, Godoy argues that his
sentence violates 18 U.S.C. § 3582(a), which prohibits prison
time as a means of rehabilitation. See Tapia v. United States,
__ U.S. __, 131 S. Ct. 2382, 2390 (2011). Godoy also argues
that he was given a longer prison term than he would have
received had he been wealthier and thus able to more quickly
repay the restitution, a disparity that violates the Fifth
Amendment. See Bearden v. Georgia, 461 U.S. 660 (1983)

    2
       Godoy offers a number of other arguments in support of his
right to bring this appeal. Since we have already decided the
question in his favor, we need not address them.
                                 5
(sentencing courts cannot subject defendants to imprisonment
simply because they are too poor to pay fines). Additionally,
Godoy argues that the district court erred by requiring him to
enroll in the Bureau of Prisons Inmate Financial
Responsibility Program.

     Arguing that he had no meaningful opportunity to
challenge the district court’s mistakes, Godoy urges us to
review his sentence for abuse of discretion. The government
maintains that plain error review is required. We need not
choose between the two because the sentence withstands
scrutiny under both. See United States v. Rubio, 677 F.3d
1257, 1260 (D.C. Cir. 2012) (“We need not address the
standard of review . . . because there was no error—plain or
otherwise—in the proceedings in the district court.”).

                                 A

    First, we determine that Godoy’s § 3582(a) claim fails.
When meting out sentences, judges must consider the goals of
punishment, deterrence, incapacitation, and rehabilitation. See
18 U.S.C. § 3553(a)(2). 3 Current law allows judges to employ

    3
       Because we refer to § 3553(a) often, it is useful to set forth
the relevant portions here:
     (a) 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—
         (1) the nature and circumstances of the offense and the
              history and characteristics of the defendant;
         (2) the need for the sentence imposed—
              (A) to reflect the seriousness of the offense, to
                  promote respect for the law, and to provide just
                  punishment for the offense;
                                6
a wide range of sentencing methods to achieve these goals.
Rehabilitation, in particular, may come through employment
training, drug addiction treatment, or a stint in a halfway
house upon supervised release. See, e.g., 18 U.S.C.
§§ 3563(b); 3583(d). But prison time cannot be a means to the
end of rehabilitation. The relevant provision in the Sentencing
Reform Act of 1984 states:

    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) to the
    extent they are applicable, recognizing that imprisonment
    is not an appropriate means of promoting correction and
    rehabilitation.

18 U.S.C. § 3582(a) (emphasis added). As the Supreme Court
has explained, § 3582(a) is designed to send a message to
sentencing courts: “Do not think about prison as a way to
rehabilitate an offender.” Tapia, 131 S. Ct. at 2390.

    Godoy asserts that the district court acted upon just such
a forbidden thought, but the record does not support his
argument. At sentencing, the district court gave no indication
that it thought time in prison would aid Godoy’s
rehabilitation. After discussing the harms that Godoy had
caused his victims, the court stated that it had to “provide

             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the
                 defendant; and
             (D) to provide the defendant with needed educational
                 or vocational training, medical care, or other
                 correctional treatment in the most effective
                 manner[.]
18 U.S.C. § 3553(a).
                               7
deterrence” and “send a message” to similar criminals. It also
noted that “[i]ncapacitation is one of those things that is
important,” and that the Guidelines required that the court
look at “retribution.” The district court further emphasized
that it deemed the Guidelines range of thirty-three to forty-
one months insufficient punishment. Finally, the district court
spent a great deal of time discussing Godoy’s history and
character—two other § 3553 factors that are unrelated to
rehabilitation. See 18 U.S.C. § 3553(a).

     Of course, the district court discussed the process of
rehabilitation—as it should have—but only in connection
with elements of Godoy’s sentence other than imprisonment.
For instance, only after it imposed Godoy’s sixty months’
incarceration did the district court turn to the rehabilitative
portions of the sentence, stating, “you will, I recommend, be
placed in intensive drug treatment rehab[ during your time in
prison]. I am directing that upon your release, you be placed
in intensive psychiatric treatment.” At no point did the district
court suggest that its talk of rehabilitation related to anything
other than the treatment of Godoy’s mental health and the
terms of his supervised release, which is entirely acceptable.

     Godoy urges us to disregard what the court said about its
purposes in sentencing him and look instead to an
administrative form used to report sentences to the United
States Sentencing Commission called the Statement of
Reasons. District courts are required to complete Statement of
Reasons forms by 28 U.S.C. § 994(w)(1):

    The Chief Judge of each district court shall ensure that,
    within 30 days following entry of judgment in every
    criminal case, the sentencing court submits to the
    Commission, in a format approved and required by the
    Commission, a written report of the sentence, the offense
                               8
    for which it is imposed, the age, race, sex of the offender,
    and information regarding factors made relevant by the
    guidelines. The report shall also include—

    ....

    (B) the written statement of reasons for the sentence
    imposed (which shall include the reason for any
    departure from the otherwise applicable guideline range
    and which shall be stated on the written statement of
    reasons form issued by the Judicial Conference and
    approved by the United States Sentencing Commission).

     Godoy argues that the Statement of Reasons form
provides insight into the district court’s mindset at sentencing
and vindicates his § 3582(a) claim. Other circuits have
struggled with how to weigh the importance of the Statement
of Reasons form, see United States v. Denny, 653 F.3d 415,
421-22 (6th Cir. 2011), but we need not wade into that murky
water. Regardless of the weight we give it, the Statement of
Reasons form does not help Godoy’s case. To the contrary,
the form here is of a piece with the sentencing colloquy.

     The first relevant section of the form, Section IV,
indicates that the district court imposed a sentence “outside
the advisory sentencing guideline system.” Because the
district court went outside the Guidelines altogether, Section
VI of the form asks the district court its reasons for imposing
all elements of the sentence, not just the prison term. In
Section VI, the district court checks boxes that completely
describe the various bases for the entire sentence. Here, the
district court checked the following:
                               9
           •   “the nature and circumstances of the offense
               and the history and characteristics of the
               defendant[;]”

           •   “to afford adequate deterrence to criminal
               conduct[;]”

           •   “to protect the public from further crimes of
               the defendant[;]”

           •   “to provide the criminal with needed
               educational or vocational training, medical
               care, or other correctional treatment in the
               most effective manner[;]”

           •   “to provide restitution to any victims of the
               offense . . . .”

Rehabilitation was clearly one basis for the sentence, but there
is nothing on the form that indicates that rehabilitation was a
factor when the court determined Godoy’s prison time. The
answers the court gave in Section VI of the form explain the
entirety of Godoy’s outside-Guidelines sentence—supervised
release included.

                               B

     Next, Godoy argues that the length of his prison time
reflects his poverty and thus violates the due process and
equal protection principles of the Fifth Amendment. The
district court, he contends, lengthened his time in prison so
that he could earn funds to speed the restitution payments he
owes his victims. Had he greater wealth with which to make
his payments, he argues, his prison term would have been
shorter. We need not consider the Fifth Amendment’s
                                10
application to such treatment. We can find no support for the
claim that Godoy’s prison term is longer than a wealthy
person’s term would have been for a similar crime.

     The court never drew any link between the goal of
restitution and Godoy’s prison time. Indeed, the first time the
district court even mentioned restitution was after it had
offered a litany of reasons justifying the length of Godoy’s
prison term—a litany that did not include restitution. And the
district court anticipated that Godoy would be paying his
restitution bills long after he leaves prison. He is required to
pay those bills at a rate of $25 a month after he is released
from prison. Indeed, the district court considered the fact that
Godoy “agreed to full restitution” to be a factor in his favor,
not a factor counseling further imprisonment. There is nothing
in the record to suggest that the district court had restitution in
mind when it sentenced Godoy to prison.

     It would be absurd to think Godoy’s meager earning
potential in the Bureau of Prisons Inmate Financial
Responsibility Program (IFRP) could motivate the district
court to keep him in prison. Even if Godoy were to
immediately begin earning the highest available Bureau of
Prisons wage—$1.15 per hour for a high-level Federal Prison
Industries factory job—he would need to work more than
twenty years of forty-hour weeks, keeping not a cent for
himself, to pay off his restitution order. See Work Programs,
FEDERAL BUREAU OF PRISONS, http://www.bop.gov/
inmate_programs/work_prgms.jsp (last visited Jan. 15, 2013).
His entire sentence is fifteen years shorter than even that
ambitious payback timeframe. It would be irrational to
sentence an offender to prison for the purpose of garnishing
his IFRP earnings, and we decline to attribute irrationality to
the district court.
                              11
     Once again, Godoy asks us to look to the Statement of
Reasons form to alter our views of what the district court
actually said at sentencing about restitution. But again, the
Statement of Reasons is unhelpful to Godoy’s case. In Section
VI of the form, the district court stated that it sought “to
provide restitution to any victims of the offense” when it
imposed Godoy’s sentence. We find that the most plausible
reading—indeed, the only rational reading—of this portion of
the form is that it refers to the district court’s reasons for
imposing the entirety of Godoy’s sentence. Though the form
does not provide a space for delineating which portions of the
sentence were animated by which reasons, we are confident
that the “restitution” reasoning was related to the imposition
of the restitution requirements, not to the imposition of prison
time.

                               C

     Finally, Godoy argues that the district court erred by
stating that he would be required to enroll in the Bureau of
Prisons IFRP. Because the government conceded at oral
argument that Godoy cannot be ordered to enroll in the IFRP,
we hereby modify his sentence to reflect the fact that
enrollment is voluntary. Cf. United States v. Boyd, 608 F.3d
331, 335 (7th Cir. 2010) (modifying a sentence to clarify that
enrollment in the IFRP is voluntary and affirming as
modified).

                              III

    As modified, the district court’s sentence is affirmed.

                                                    So ordered.
