                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                      No. 17-3090
                                      _________

                          UNITED STATES OF AMERICA

                                           v.

                                     LINDA TODD,
                                               Appellant
                                     _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-14-cr-00320-001)
                     District Judge: Honorable Gene E. K. Pratter
                                   ______________

                                   Argued June 5, 2018
                                    ______________

             Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                          (Opinion Filed: November 7, 2018)

Jacob Schuman, Esq. [Argued]
Christy Martin, Esq.
Maranna J. Meehan, Esq.
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Counsel for Appellant

Emily McKillip, Esq. [Argued]
K. T. Newton, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for United States

                                    ________________

                                         OPINION

                                    ________________

VANASKIE, Circuit Judge.

       In Tapia v. United States, 564 U.S. 319, 335 (2011), the Supreme Court made

clear that “a court may not impose or lengthen a prison sentence to enable an offender to

complete a treatment program or otherwise to promote rehabilitation.” Recently, in

United States v. Schonewolf, 2018 WL 4782146 (3d Cir. Oct. 4, 2018), we concluded that

this prohibition applies to revocations of supervised release, overruling our previous

decision in United States v. Doe, 617 F.3d 766 (3d Cir. 2010). We also took the

opportunity in Schonewolf to join the First, Second, Fourth, Fifth, Sixth, and Eighth

Circuits in holding that, to violate Tapia, rehabilitation must have been a primary or

dominant factor in a district court’s decision to impose a term of incarceration.

Schonewolf, 2018 WL 4782146, at *7–8.

       The District Court revoked Appellant Linda Todd’s supervised release before we

decided Schonewolf. We write today to illustrate the contrast between the facts of our

case and the facts presented in Schonewolf. Whereas we found no Tapia error in

Schonewolf, we think it clear that, here, Tapia was violated. Nonetheless, recognizing

that we announced the applicable standard for discerning Tapia error for the first time in

Schonewolf, we cannot conclude that the error in Todd’s case was plain. Nor can we

                                             2
conclude that Todd demonstrated prejudice that affected her substantial rights.

Accordingly, we will affirm the Order of the District Court revoking Todd’s supervised

release.

                                               I.

       We begin by recounting Todd’s history of substance abuse and the judicial

proceedings in this matter, which are deeply intertwined.

       The parties agree Todd has struggled with drug addiction for many years. Prior to

the proceedings in this case, Todd was hospitalized several times for substance-abuse

disorders and was convicted of several drug-related crimes.

       In 2014, Todd pled guilty to participation in a bank-fraud and identity-theft

scheme. The District Court sentenced her to thirteen months of imprisonment, followed

by sixty months of supervised release. As conditions of her supervised release, Todd was

required to abstain from illegal substances, report to her probation officer, and, in

particular, report to her probation officer for drug testing.

       Following her release from prison in March 2015, Todd began her period of

supervised release. For the first year and a half of her supervised release term, she

complied with her conditions. In the fall of 2016, however, Todd relapsed: she tested

positive for cocaine, morphine, oxycodone, and oxymorphone in September, October,

and November. She also missed several drug tests. As a result, her probation officer

directed her to enroll in an intensive outpatient program to treat her addiction and mental

health issues. In addition, Todd was given permission to enroll in a Suboxone



                                               3
maintenance program. Although she initially reported to these programs as directed, she

was eventually discharged after missing several appointments.

       Todd continued to struggle with substance dependence through the winter. In

January 2017, she enrolled in a five-day detoxification program, but dropped out one day

before she was scheduled to finish. She then joined another intensive outpatient and

Suboxone maintenance program, but stopped attending a few weeks later. Around this

time, Todd also stopped communicating with her probation officer.

       In February 2017, Todd’s probation officer filed a petition asking the court to

issue a summons directing Todd to appear and modify the conditions of her supervised

release. In particular, the probation officer sought to add as a condition of supervised

release thirty days of inpatient treatment. A month later, Todd’s probation officer filed a

Violation of Supervised Release petition, alleging that Todd had violated the conditions

of her release by using drugs, failing to complete treatment, and failing to report to her

probation officer as directed. This petition superseded the one from February. Pursuant

to the petition, Todd was arrested and brought before the District Court for a hearing.

       At the hearing, Todd’s probation officer proposed that the District Court modify

the conditions of Todd’s release to require participation in a drug treatment program.

Both Todd and the government agreed that treatment was necessary. Accordingly, the

District Court modified her conditions to require her to attend sixty days of inpatient

treatment, followed by ninety days of outpatient treatment. The District Court

emphasized this was “another chance,” with “a little bit closer supervision.” (App. 104.)



                                              4
       Todd completed the inpatient program in April 2017. In June 2017, she began the

outpatient program at a residential reentry center. In August 2017, she relapsed again.

She tested positive for cocaine and opioids, and confided to her probation officer that she

had been using drugs.

       On August 17, 2017, Todd overdosed on heroin. Staff at the reentry center

administered Narcan, an opioid blocker, and transported her to the hospital, where she

was revived. When the staff searched her personal belongings, they found ten small bags

of heroin along with drug paraphernalia. The next day, Todd was discharged from

outpatient treatment.

       After the overdose, Todd’s probation officer sought revocation of her supervised

release. The officer filed another Violation of Supervised Release petition, alleging that

Todd had again violated the conditions of her release by using drugs, failing to complete

outpatient treatment, and missing meetings with the probation officer. Todd was arrested

and appeared for a second hearing.

       At this hearing, Todd’s probation officer recommended that the District Court

revoke Todd’s supervised release and sentence her to twelve months of incarceration,

followed by twenty-four months of supervised release. The government agreed. Todd

opposed and requested that the District Court place her in a drug treatment program

instead of prison. Defense counsel noted Todd had done well in the inpatient program,

held a job, and had support from her family. Defense counsel further explained that,

although Todd had relapsed during outpatient treatment, drug use was endemic at the

reentry center, which made it a difficult environment in which to maintain sobriety.

                                             5
Defense counsel also stressed that while battling opioid dependence was “a long road,”

the overdose had been “a wake-up call” for Todd. (App. 118–19.)

       The Court then engaged Todd in a colloquy. Todd expanded on her history of

drug use, her recent overdose, her varying degrees of success in inpatient and outpatient

programs, and her aspirations of becoming a drug and alcohol addiction counselor. She

also emphasized that she had made progress during inpatient treatment, but had

succumbed to the rampant drug use in the outpatient facility. In response, the District

Court questioned whether Todd had “a grip on the reality of the risk of overdosing,”

stating,

              [I]f . . . you think that you’re doing well and that everything
              would have been fine as long as you hadn’t gone to [the reentry
              center], I’m not sure that you’re really thinking about the big
              picture and what you have to face in life because in the final
              analysis, none of these programs are successful unless they
              click with you and you’re able to monitor yourself.

(App. 122.) The District Court also expressed concern that Todd was demonstrating

neither “personal accountability,” nor “responsibility . . . .” (App. 123.) As an example,

the Court noted that Todd had repeatedly sought out drugs in the reentry center on her

own accord.

       Ultimately, the District Court revoked Todd’s supervised release and sentenced

her to twelve months and one day’s imprisonment, 1 followed by twenty-four months’

supervised release. The District Court explained:


       1
        The District Court extended the prison sentence to twelve months and one day at
defense counsel’s request so that Todd could earn good-time credit. (App. 134–35.)

                                             6
              Well, Ms. Todd, certainly the plan that we had hoped would
              work does not work and it hasn’t yet clicked with you and what
              you really must have is ongoing 24/7 supervision.

              So in connection with revoking your supervised release, I am
              going to send you back to prison for a period of [twelve]
              months during which it would be my expectation that you will
              be participating in both mental health treatment programs and
              drug addiction treatment programs. Upon your completion of
              the [twelve] months of incarceration, you will return to
              supervised release for [twenty-four] months.

(App. 133–34.) In imposing this sentence, the District Court did not calculate her range

under the United States Sentencing Guidelines (“U.S.S.G.”); 2 nor did it discuss the

sentencing factors set out in 18 U.S.C. § 3553(a). Other than finding that Todd had

committed the violations and noting the violations were “C violations,” (App. 132), the

District Court made no reference to the Guidelines. Todd timely appealed her sentence.

                                               II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Todd raises two challenges to the District Court’s order revoking her supervised

release. First, she contends the revocation violated Tapia. Second, she argues the

District Court’s failure to calculate and consider her Guidelines’ range amounted to

reversible error. Because neither challenge was presented to the District Court, we

review for plain error. See United States v. Berry, 553 F.3d 273, 279 (3d Cir. 2009).

Plain error is error that is obvious or clear, affects substantial rights, and affects the


       2
        The parties agree the applicable range was eight to fourteen months’
imprisonment.
                                                7
fairness, integrity, or public reputation of the proceeding. See United States v. Olano,

507 U.S. 725, 732 (1993). “Generally, an error affects substantial rights when it is

prejudicial, i.e., it ‘affected the outcome of the district court proceedings.’” United States

v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting Olano, 507 U.S. at 734).

                                             III.

       We begin by assessing whether the District Court erred under Tapia. Before

turning to the facts of Todd’s case, however, we summarize the relevant provision of the

Sentencing Reform Act and the decisions in Tapia and Schonewolf.

                                             A.

       In 1984, Congress passed the Sentencing Reform Act, which “channeled judges’

discretion by establishing a framework to govern their consideration and imposition of

sentences.” Tapia, 564 U.S. at 325. In relevant part, the Act 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.] section 3553(a) to the extent that they
              are applicable, recognizing that imprisonment is not an
              appropriate means of promoting correction and rehabilitation.

18 U.S.C. § 3582(a) (emphasis added). This provision, as the Supreme Court explained,

reflects lawmakers doubts “that prison programs could ‘rehabilitate individuals on a

routine basis’—or that parole officers could ‘determine accurately whether or when a

particular prisoner ha[d] been rehabilitated.’” Tapia, 564 U.S. at 324–35 (quoting S.

Rep. No., 98–225, at 40 (1983)).




                                              8
       In Tapia, the Supreme Court considered whether a district court’s reference to the

Bureau of Prison’s Residential Drug Abuse Program during its sentencing of Alejandra

Tapia ran afoul of § 3582(a). 564 U.S. at 335. The Court affirmed that § 3582(a)

prevented a court from “impos[ing] or lengthen[ing] a prison sentence to enable an

offender to complete a treatment program or otherwise to promote rehabilitation.” Id.

The Court’s interpretation rested in part on the fact that, as Congress had recognized in

passing the SRA, “imprisonment is not an appropriate means of pursuing

[rehabilitation].” Id. at 328.

       In Schonewolf, we considered whether Tapia’s interpretation of § 3582 extends to

revocations of supervised release. Joining all other Courts of Appeals that have

considered the issue, we concluded that it did. See 2018 WL 4782146, at *5–6 (citing

United States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011) (Souter, J.); United States v.

Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013); United States v. Bennett, 698 F.3d 194, 198

(4th Cir. 2012); United States v. Garza, 706 F.3d 655, 657 (5th Cir. 2013); United States

v. Deen, 706 F.3d 760, 766 (6th Cir. 2013); United States v. Taylor, 679 F.3d 1005, 1006

(8th Cir. 2012); United States v. Grant, 664 F.3d 276, 280 (9th Cir. 2011); United States

v. Mendiola, 696 F.3d 1033, 1043 (10th Cir. 2012); United States v. Vandergrift, 754

F.3d 1303, 1309 (11th Cir. 2014)).

       Next, we determined the applicable standard for discerning Tapia error in post-

revocation sentences. We recognized a split among the Circuits. “On one hand,” we

wrote, “the Seventh, Ninth, Tenth, and Eleventh Circuits impose a stringent standard . . . .

In the view of these circuits, Tapia is violated wherever rehabilitation is given any weight

                                             9
in the decision to impose or lengthen a prison sentence.” Id. at *6 (citing United States v.

Spann, 757 F.3d 674, 675 (7th Cir. 2014); United States v. Joseph, 716 F.3d 1273, 1281

n.10 (9th Cir. 2013) (dictum)); United States v. Thornton, 846 F.3d 1110, 1116 (10th Cir.

2017); Vandergrift, 754 F.3d at 1310 (11th Cir. 2014)). “On the other hand,” we

continued, “the First, Second, Fourth, Fifth, Sixth, and Eighth Circuits have articulated a

more relaxed standard . . . . Under this standard, rehabilitation may be a factor granted

some weight in selecting a prison sentence, so long as it is not the primary or dominant

consideration.” Id. at *7 (citing United States v. Del Valle-Rodrigues, 761 F.3d 171, 174

(1st Cir. 2014); Lifshitz, 714 F.3d at 150 [2d Cir.]; Bennett, 698 F.3d at 201 [4th Cir.]);

Garza, 706 F.3d at 660 [5th Cir.]; Deen, 706 F.3d at 768 [6th Cir.]; United States v.

Replogle, 678 F.3d 940, 943 (8th Cir. 2012)). We joined the latter cohort, reasoning that

the less stringent standard “tracks Tapia more closely” and comports with our approach

in the post-conviction setting. Id. at *7–8 (citing United States v. Zabielski, 711 F.3d

381, 392 (3d Cir. 2013)).

       We concluded by turning to the relevant circumstances of Schonewolf’s personal

and criminal background. Her experiences with addiction began early in life. Both of

her parents were addicts and she herself began using drugs and alcohol in her teenage

years. At some point, she was prescribed Percocet for back pain stemming from a car

accident. Over time she became dependent on the pills. After she was no longer able to

secure Percocet, she switched to heroin to salve her addiction. In 2010, Schonewolf pled

guilty to one count of possessing methamphetamine with intent to distribute. The district



                                             10
court varied downward, sentencing her to time served and sixty months of supervised

release.

       Schonewolf served the first part of her supervised release without incident. Then

she relapsed. She proceeded to violate her supervised release multiple times—she was

caught attempting to purchase drugs; she overdosed; and, ultimately, she pled guilty to

selling heroin. As a result, her probation officer sought revocation. The district court

convened a hearing. After listening to the parties, it varied upward and sentenced

Schonewolf to forty months’ imprisonment. It explained that its downward variance

during post-conviction sentencing justified an upward variance pursuant to U.S.S.G. §

7B1.4. 3 Additionally, the court observed that Schonewolf posed a danger to herself and

society. It also mentioned that limited contact with the outside world, presumably

through incarceration, was “the last step we have in order to give you a fighting chance to

recover from whatever addictions you have . . . .” Id. at *3.

       On appeal, Schonewolf claimed that her post-revocation sentence violated Tapia.

She argued that many of the district court’s statements were “addiction-centric and

framed the choice [of sentence] in terms of treating her addiction.” Id. at *8 (citations

omitted). We disagreed. We held the sentence “was not based on rehabilitation but,

instead, on past lenity.” Id. We were persuaded by, inter alia, the district court’s express

reliance on U.S.S.G. § 7B1.4.




       3
        Application Note 4 to U.S.S.G. § 7B1.4 provides: “Where the original sentence
was the result of a downward departure . . ., an upward departure may be warranted.”
                                             11
                                             B.

       We write today because we believe Todd’s sentence is distinguishable from

Schonewolf’s. In Schonewolf, the district court based its sentence on the permissible

consideration of past lenity. 4 By contrast, in determining Todd’s sentence, the District

Court focused on the rehabilitative benefit prison could provide.

       Having reviewed the record before us, we conclude that rehabilitation was the

District Court’s primary basis for imposing a term of incarceration. We are particularly

persuaded by its reference to the “ongoing 24/7 supervision” available in prison. (App. at

133.) Before making this statement, the Court discussed its concern with drug treatment

programs that provided less than continuous supervision. It recognized that these

programs had not succeeded in helping Todd overcome her addiction. By contrast,

the“24/7 supervision” available in prison presented an alternative to these drug treatment

programs. We also note that, throughout this matter, the proceedings have centered on

Todd’s substance abuse. The transcripts almost exclusively discuss Todd’s history of

substance abuse, treatment needs, and ongoing attempts to maintain sobriety. This

bolsters our conclusion that the District Court was primarily motivated by its interest in

promoting Todd’s rehabilitation.

       The government argues that while the District Court “may have shown a hope that

Todd would avail herself of [rehabilitation] programs while incarcerated,” (Appellee’s


       4
         We note that the district court in Schonewolf also discussed public safety as
justification for its sentence, but we did not rely on this fact in our decision on appeal.
See id. at *3 (noting that district court judge considered Schonewolf to be “a significant
danger to society”).
                                             12
Br. at 19), rehabilitation was not its primary motivation in revoking Todd’s supervised

release. In support of its position, the government points to several statements that

ostensibly prove the District Court relied on non-rehabilitative factors. First, the

government submits that the District Court’s references to “personal accountability” and

“responsibility” were unrelated to Todd’s treatment needs; and second, the government

contends the District Court’s reliance on the need for “ongoing 24/7 supervision”

reflected the seriousness and number of Todd’s violations. (Appellee’s Br. at 19–20.)

       We are not convinced. We decline to review these statements in isolation, and

when read in context, it is clear that they were all related to Todd’s addiction. First, the

District Court’s references to “personal accountability” and “responsibility” were part of

its inquiry into Todd’s experiences at various treatment programs. This colloquy mainly

focused on Todd’s success with inpatient programs compared to her inability to maintain

her sobriety while participating in outpatient programs. And when Todd explained to the

District Court that she thought her overdose was traceable to the lax conditions at the

reentry center, the Court rejected the explanation, suggesting the more pressing issue was

Todd’s inability to hold herself personally accountable for the lapses in her own sobriety.

       The government’s argument regarding “ongoing 24/7 supervision” fares no better.

Admittedly, 24/7 incapacitation accompanying incarceration can be used to advance

deterrence and public safety, which are permissible considerations when deciding

whether to impose a term of imprisonment. See United States v. Del Valle-Rodriguez,

761 F.3d 171, 175 (1st Cir. 2014). However, nothing here suggests the District Court

was concerned with anything other than Todd’s rehabilitation. For instance, this

                                             13
statement regarding 24/7 supervision followed a lengthy discussion of Todd’s inability to

complete outpatient treatment in which the amount of supervision was a pivotal issue.

We also note that this statement was not the first time the District Court addressed Todd’s

need for supervision. It had done so before at Todd’s first hearing where it modified the

terms of her supervised release. After expressing concern about the “freedom” permitted

“at the halfway house,” the Court ordered sixty days of inpatient treatment followed by

ninety days of outpatient treatment. The Court emphasized that this would provide “a

little bit closer supervision.” (App. 104.) In other words, more supervision meant a

better shot at sobriety.

       We have carefully considered and compared these proceedings to those at issue in

Schonewolf. Our conclusion in Schonewolf rested on our ability to discern permissible

considerations motivating a district court’s imposition of a term of incarceration, i.e.,

express reliance on U.S.S.G. § 7B1.4. Because we cannot identify any consideration

other than rehabilitation on this record, we conclude that Todd’s post-revocation sentence

violated Tapia.

       This is not to say that District Court’s decision to address Todd’s concerns

regarding her rehabilitative needs while incarcerated was improper. In fact, we commend

the Court for directly confronting the reality of Todd’s addiction. We write only to

underscore that a court may not rely primarily on rehabilitation in imposing a term of

incarceration, and that we are unable to discern a basis other than rehabilitation from the

record before us.



                                             14
       Nevertheless, we are aware that the recent decision in Schonewolf marks our first

clear statement on the application of Tapia to revocations of supervised release and the

extent to which a court may consider rehabilitation when imposing a term of

incarceration. Accordingly, we cannot say that the error here was obvious. Nor are we

convinced that Todd has demonstrated a reasonable probability that she would have

received a more favorable sentence had the District Court rested its decision on

permissible grounds. We recognize that a legitimate basis for imposing a term of

incarceration may have existed in Todd’s case, as it did in Schonewolf’s. In particular,

we note that Todd admitted violating the terms of her supervised release and was

sentenced within her Guidelines’ range. Applying plain error review, as we are required

to do under the circumstances, we will not disturb the District Court’s sentence on Tapia

grounds. See Olano, 507 U.S. at 734.

                                            IV.

       We conclude by addressing Todd’s alternative argument—i.e., that the District

Court failed to properly calculate or consider her Guidelines’ range. We agree that this

was a procedural error. See United States v. Gall, 552 U.S. 38, 51 (2007) (holding that an

appellate court “must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range”). We are not, however, convinced Todd has demonstrated prejudice. Todd

received a term of imprisonment of twelve months and one day for violating the terms of

her supervised release. The Guidelines’ range she faced was eight to fourteen months.

Nothing in this case suggests that Todd would have received a more favorable sentence

                                             15
had the District Court calculated and considered this range on the record. Because Todd

has not demonstrated prejudice, we decline to find plain error. See Olano, 507 U.S. at

734.

                                           V.

       For the foregoing reasons, we will affirm the District Court’s Order revoking

Todd’s supervised release entered on September 14, 2017.




                                           16
