     Case: 11-10565       Document: 00512137784         Page: 1     Date Filed: 02/07/2013




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

                                                                            FILED
                                                                         February 7, 2013
                                       No. 11-10565
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee

v.

CHARLIE KING MEZA,

                                           Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:01-CR-59-1


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Charlie King Meza appeals the sentence imposed after revocation of his
supervised release, which was originally imposed following his guilty plea
conviction for bank robbery and aiding and abetting in violation of 18 U.S.C.
§§ 2113(a), 2113(d), and 18 U.S.C. § 2. Meza argues that it was error for the
district court to rely on his rehabilitation needs for a residential drug treatment
program to impose or lengthen his sentence. He asserts that 18 U.S.C. § 3852(a)
prohibits a sentencing court from considering a defendant’s rehabilitation needs

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        No. 11-10565

when imposing or increasing a sentence, and that this prohibition applies to
sentences imposed upon revocation of supervised release, relying on Tapia v.
United States, 131 S. Ct. 2382, 2393 (2011).
       Because Meza did not object to the reasonableness of his sentence after it
was imposed or to any specific error, our review is limited to plain error. See
United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). To succeed on
plain-error review, Meza must show a clear or obvious forfeited error that
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). This court has discretion to correct the error only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 736 (1993) (quotation omitted).
       The record reflects that the district court chose the thirty-month sentence
so that Meza would have an opportunity to participate in a drug treatment
program. The law at the time of Meza’s sentencing was unclear, but while his
direct appeal was pending, the Supreme Court issued its decision in Tapia,
holding that a district court may not impose or lengthen a sentence for
rehabilitation purposes. See 131 S. Ct. at 2393.1 This court recently held that
Tapia applies to the revocation context. United States v. Garza, No. 11-10543,
2013 WL 398760, at *1 (5th Cir. Feb. 1, 2013). Section 3852(a), therefore,
precludes a court from lengthening a revocation sentence based on the
defendant’s rehabilitative needs. Id. Accordingly, in view of Tapia and Garza,
it was error for the district court to consider Meza’s need to participate in a drug
treatment program in determining the length of his sentence. Tapia, 131 S. Ct.
at 2393; Garza, 2013 WL 398760, at *1. Although this court had not definitively
answered whether § 3852(a) applies in the revocation context until Garza, this


       1
         In Tapia, although the Supreme Court reversed the judgment of the Ninth Circuit,
the Court explained that “[c]onsistent with our practice . . . we leave it to the Court of Appeals
to consider the effect of [the defendant’s] failure to object to the sentence when imposed.” 131
S. Ct. at 2393 (citations omitted).

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error now is clear or obvious. See Garza, 2013 WL 398760, at *4 (concluding that
such error “was clear or obvious by the time of the appeal”); United States v.
Escalante-Reyes, 689 F.3d 415, 419–24 (5th Cir. 2012) (en banc) (holding that the
plainness of an error is to be determined at the time of appeal).
      We now turn to the third prong of plain error—whether the error affected
Meza’s substantial rights.     The record reflects that the district court, in
explaining Meza’s sentence, focused on the need for the sentence to allow Meza
sufficient time to participate in a drug treatment program. Specifically, the
district court explained that “I will recommend that you be given an opportunity
to participate in the Comprehensive Drug Treatment Program in the
penitentiary.    And [it is] necessary for me to give you a sentence of
approximately that length in order to be sure you have an opportunity to
participate in that.” Because the district court’s emphasis on the correlation
between Meza’s sentence and the time necessary to complete a drug treatment
program is “sufficient to undermine our confidence that the district court would
have imposed the same sentence absent the error,” we conclude that the error
affected Meza’s substantial rights. See Escalante-Reyes, 689 F.3d at 425; see
also Garza, 2013 WL 398760, at *4.
      Under the final prong of plain-error review, we retain the discretion to
remedy the error “only if the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Puckett, 556 U.S. at 135 (alteration
in original) (quoting Olano, 507 U.S. at 736). Even if we conclude that the other
three prongs are met, we do not automatically assume that the final prong is
satisfied. See, e.g., Escalante-Reyes, 689 F.3d at 425. We turn to the particular
facts of this case. At his revocation hearing, Meza admitted to the following
violations of the conditions of supervised release: (1) using and possessing
methamphetamine, an illegal controlled substance; (2) failing to report to the
probation office on January 5, 2011, as instructed; (3) failing to attend a drug
counseling session on April 5, 2011, as instructed; (4) failing to provide a urine

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specimen on April 2, 2011, as instructed; (5) failing to make monthly restitution
payments on numerous occasions; and (6) submitting a monthly report in March
2011 that contained untruthful statements regarding his employment. Under
the advisory policy statements in Chapter 7 of the United States Sentencing
Guidelines (“U.S.S.G.”), Meza’s criminal history category of II and his Grade C
violations of the conditions of supervised release yielded an advisory range of
imprisonment of 4 to 10 months. See U.S.S.G. § 7B1.4.
      The district court provided no explanation for imposing a thirty-month
sentence other than to ensure that Meza would have an opportunity to
participate in a drug treatment program during his period of incarceration.
Because we are unable to find any evidence in the sentencing record that shows
that Meza’s sentence—determined solely by reference to the prohibited
consideration of Meza’s rehabilitative needs—“is ‘fair,’ or that the ‘integrity or
public reputation’ of the judicial proceeding was protected” despite the erroneous
consideration of Meza’s need for a drug treatment program, we conclude that the
error seriously affected the “fairness, integrity or public reputation” of
sentencing proceedings. See Escalante-Reyes, 689 F.3d at 425–26; cf. United
States v. Davis, 602 F.3d 643, 648, 652 (5th Cir. 2010) (declining to exercise
discretion to remand for resentencing when the defendant received a sentence
above both the incorrect and corrected advisory range where the record
demonstrated that the district court, in imposing the sentence, “placed great
weight on the seriousness of the circumstances” surrounding the defendant’s
violations of supervised release).
      Therefore, we conclude that we should exercise our discretion to correct
this error. See Garza, 2013 WL 398760, at *5 (explaining that reversal was
warranted in light of this court’s precedent in Escalante-Reyes); Escalante-Reyes,
689 F.3d at 426 (remanding for resentencing and explaining that it was
particularly appropriate to exercise the discretion to correct an error “[g]iven
Congress’s express admonition that ‘imprisonment is not an appropriate means

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of promoting correction and rehabilitation,’ 18 U.S.C. § 3582(a), and the
Supreme Court’s recent analysis in Tapia”).
      Accordingly, Meza’s sentence is VACATED and the case is REMANDED
for resentencing in accordance with this opinion.




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