     Case: 15-30137      Document: 00513405392         Page: 1    Date Filed: 03/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-30137                               FILED
                                                                             March 3, 2016

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

WENDY BERGERON,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:14-CR-199


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Wendy Bergeron pleaded guilty to possession of a stolen firearm, and
was sentenced to probation. While on probation, she repeatedly tested positive
for cocaine use, among other violations. Her probation officer moved to revoke
her probation. At her revocation hearing, the district court sentenced Bergeron
to twenty-four months in prison, the top of her advisory Guidelines range.
Bergeron appeals her sentence, arguing that it was impermissibly based on the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30137
court’s perception of her rehabilitation needs in violation of Tapia v. United
States, 564 U.S. 319, 131 S. Ct. 2382 (2011). After reviewing the record and
applicable case law, we AFFIRM.
                              BACKGROUND
      The facts in this case are straightforward and undisputed. Wendy
Bergeron pleaded guilty to possession of a stolen firearm in violation of 18
U.S.C. §§ 922(j) and 924(a)(2). Her advisory Guidelines imprisonment range
was eighteen to twenty-four months, but the district court deviated downward
and imposed three years of probation instead of prison time. While on
probation, Bergeron was prohibited from purchasing, possessing, using, or
distributing drugs, and had to participate in a drug testing and treatment
program, among other requirements. She was unable to comply, however, and
tested positive for cocaine use four times in late 2014. In January 2015,
Bergeron admitted that she had been using cocaine, even after the four failed
drug tests. Her probation officer recommended that her term of supervised
release be revoked because she had violated the conditions of her release,
specifically by: (1) using cocaine; (2) failing to report for drug testing and
treatment; (3) failing to advise her probation officer that she had been fired
from her job and evicted from her residence; and (4) failing to report that she
had received a speeding ticket.
      Bergeron admitted to each of these charges during her revocation
hearing, stated that she was a drug addict, and requested treatment in
Cenikor, a long-term drug treatment program. The district judge agreed with
Bergeron’s attorney that she was “in desperate need of help,” and said that he
did not “know about Cenikor, but [did] know about one program.” The judge
found that Bergeron violated her probation, revoked her probation, and
ordered her to serve twenty-four months in prison followed by two years of
supervised release. The judge then said that he was “going to refer [Bergeron]
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to the Bureau of Prisons’ residential drug abuse program,” noting that, “[a]s a
matter of fact, 24 months is the minimum amount that I can give you to get
you into that program.” Bergeron’s attorney objected, arguing that the court
was not “supposed to take her need for drug treatment in that 24-month
program into account in imposing a sentence on her” under Tapia. The judge
responded by asking her counsel if he did not want the judge to recommend the
treatment program, to which counsel replied, “[i]t is what it is.” The judge then
clarified, “[a]s a matter of fact, 24 months was the guideline range initially, so
I’m in the guideline range from before she ever violated anything, but appeal
if you wish.” Bergeron timely filed a notice of appeal.
                          STANDARD OF REVIEW
      When, as here, a defendant preserves her objection for appeal, “we
review a sentence imposed on revocation of supervised release under a ‘plainly
unreasonable’ standard, in a two-step process.” United States v. Warren, 720
F.3d 321, 326 (5th Cir. 2013). “First, we ‘ensure that the district court
committed no significant procedural error, such as failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence, including failing to explain
a deviation from the Guidelines range.’” Id. (quoting United States v. Kippers,
685 F.3d 491, 497 (5th Cir. 2012)). Second, if there is no procedural error, “this
court [] considers the substantive reasonableness of the sentence imposed.”
Kippers, 685 F.3d at 497. If the sentence is unreasonable, “we may reverse the
district court only if we further determine ‘the error was obvious under existing
law.’” Warren, 720 F.3d at 326 (quoting United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011)).
                                 DISCUSSION
      In Tapia, the Supreme Court held that sentencing courts are prohibited
“from imposing or lengthening a prison term to promote an offender’s
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rehabilitation.” 131 S. Ct. at 2391. On appeal, Bergeron argues that the district
court erred under Tapia because “the sole motivating force behind the sentence
was the district court’s desire to see that Ms. Bergeron receive drug treatment
while imprisoned.”
      We find Bergeron’s argument unpersuasive for two reasons. First, the
record is not clear that rehabilitation—the residential drug treatment
program—was the reason the district court imposed Bergeron’s prison
sentence. The district court (1) found that Bergeron violated her probation; (2)
revoked her probation; and (3) ordered her to serve twenty-four months in jail,
which was the top of the advisory Guidelines range for her original offense of
conviction. Only after making these findings did the court refer Bergeron to
the Bureau of Prisons’ residential drug abuse program. And this
recommendation was likely in response to the fact that both before and during
her revocation hearing, Bergeron’s counsel recommended that the court send
her to a long-term treatment program. After imposing her sentence, and after
referring her to the drug abuse program, the district judge observed that “[a]s
a matter of fact, 24 months is the minimum amount that I can give you to get
you into that program.” Phrased as an afterthought, this observation supports
our conclusion that the drug abuse program was not the reason that the district
court imposed Bergeron’s sentence. See United States v. Receskey, 699 F.3d 807
(5th Cir. 2012) (finding no Tapia error when the district court first announced
the thirty-month sentence, and then spoke about the defendant participating
in the Bureau of Prisons’ drug treatment programs).
      Second, when Bergeron’s counsel made the Tapia objection, the district
judge responded by asking if counsel did not want the court to recommend the
drug treatment program. This inquiry also supports our conclusion that the
district court’s reference to the drug abuse program was intended as a
treatment recommendation and not a basis for Bergeron’s sentence. The
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district judge did not respond to the Tapia objection by justifying the twenty-
four month sentence on Bergeron’s need for treatment. Cf. United States v.
Wooley, 740 F.3d 359, 362 (5th Cir. 2014) (finding a Tapia violation when,
among other reasons, in response to an objection the district judge stated that
one sentencing factor was “treatment that I think he desperately needs”
(emphasis omitted)). Instead, the district judge clarified that “24 months was
the guideline range initially,” indicating that the Guidelines range—and not
rehabilitation—was the basis for Bergeron’s specific sentence.
      Finally, the cases that Bergeron cites as supporting her Tapia argument
are distinguishable. In all three cases, the district judge lengthened the
defendant’s recommended prison sentence in excess of the Guidelines range
and explicitly stated that rehabilitation or participation in a drug treatment
program was at least a contributing factor in reaching that sentence. See, e.g.,
Wooley, 740 F.3d at 360, 369-70 (three- to nine-months Guidelines range;
thirty-month sentence based in part on getting the defendant help for a cocaine
problem); United States v. Culbertson, 712 F.3d 235, 237-38, 244-45 (5th Cir.
2013) (five- to eleven-months Guidelines range; thirty-month sentence based
in part on giving the defendant “a period of time where [he] can, once again,
get clean and sober and stay clean and sober”); United States v. Garza, 706
F.3d 655, 660-62 (5th Cir. 2013) (three- to nine-months Guidelines range;
twenty-four month sentence based in part on the court’s desire that the
defendant participate in a residential drug treatment program). Neither of
those conditions is present here, as discussed above.
      The Supreme Court was clear in Tapia that “[a] court commits no error
by discussing the opportunities for rehabilitation within prison or the benefits
of specific treatment or training programs,” and explained that “a court may
urge the [Bureau of Prisons] to place an offender in a prison treatment
program.” 131 S. Ct. at 2392. We conclude that the district court did not base
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Bergeron’s within-Guidelines sentence on her need for rehabilitation.
Therefore, her sentence is not plainly unreasonable.
                              CONCLUSION
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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