     Case: 12-31085   Document: 00512507432     Page: 1   Date Filed: 01/21/2014




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

                                                                         FILED
                                                                  January 21, 2014
                                 No. 12-31085
                                                                    Lyle W. Cayce
                                                                         Clerk


UNITED STATES,

                                           Plaintiff - Appellee
v.

COREY P. WOOLEY,

                                           Defendant - Appellant



                Appeal from the United States District Court
                   for the Eastern District of Louisiana



Before DAVIS, GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
      Corey P. Wooley (“Wooley”) was sentenced to thirty months of
imprisonment, following the revocation of a prior probation sentence. During
the revocation hearing, the sentencing court noted its belief that Wooley suffers
from a cocaine problem, repeatedly referenced his need for treatment, and
explicitly indicated that the sentence was imposed for the purpose of resolving
Wooley’s untreated drug problem. The district court committed clear error by
violating the Supreme Court’s mandate in Tapia v. United States, which
prohibits a sentencing court from “imposing or lengthening a prison sentence
to . . . promote rehabilitation.” 131 S. Ct. 2382, 2393 (2011). Accordingly, we
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                                  No. 12-31085

VACATE the sentence and REMAND to the district court for resentencing in
light of this opinion.
                                       I.

      In November of 2009, Wooley pleaded guilty to the unlawful use of a
United States Coast Guard Merchant Marine Officer License, in violation of 18
U.S.C. § 2197. Wooley was sentenced to five years of probation, with six
months of home confinement. The probation order required Wooley to submit
to random urinalysis drug testing by a probation officer, pay for his electronic
monitoring system, and attend a “life skills” program.
      In September of 2012, the government sought to revoke Wooley’s
probation based on various instances of noncompliance. Specifically, the
government’s petition alleged that Wooley had failed to pay his location-
monitoring fee, submitted a diluted urine specimen, failed to report for
urinalysis drug testing on eleven occasions, failed to submit several monthly
supervision reports, missed two scheduled office visits, and, despite advance
notice, was not present during scheduled home visits.         The petition was
subsequently amended to include an allegation that Wooley had failed to
advise his probation officer that in January of 2012, he pleaded guilty to the
misdemeanor offense of misrepresentation of name, age, and address.
      On October 17, 2012, a probation-revocation hearing was held. Wooley,
represented by counsel, declined to contest the allegations of noncompliance
but asked the court to continue his probation, explaining that the violations
were a result of communication problems with his probation officer.          The
district court noted that based on a criminal-history category of I, and the
Grade C probation violations, the recommended sentence under the United
States Sentencing Guidelines is three to nine months. See U.S.S.G. § 7B1.4.
The court expressed its concern with “not necessarily each violation but the

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                                  No. 12-31085

cumulative effect of so many violations” and questioned whether Wooley was
suffering from a “drug illness . . . that he is not getting treated for.” Wooley
denied any substance-abuse problems and insisted that the violations were a
result of communication issues and misunderstandings, explaining that he was
out of town for some of the missed appointments.
      The district court reiterated its concern with the amount of violations
and its belief that Wooley suffered from a drug problem, which the court
reasoned could be resolved by the sentence:
      I don’t like punishing somebody for what I call a technical
      violation; that is, you know if you were away on work or whatever
      and they called you and there was a problem with that, I don’t
      normally revoke for that. But you have had so many other
      instances where you missed without any excuse, either reporting
      issues, random testing issues, the home visit issues. I think
      something else is going on here. What I don’t know. I know there
      is a specimen that was diluted, and some trace amounts of cocaine.
      Those seem to be some concerns that need addressing. I’m hoping
      that this particular matter will be put to rest as a result of whatever
      we do here. . . .

After briefly inquiring into Wooley’s work history and family ties, the court
then stated:
      Sometimes when individuals don’t report for ordered drug analysis
      or testing to then determine if they need treatment, when they are
      unable to do that on their own, then sometimes a confined setting
      might help to get that done. I thought I gave you a really good
      break when I sentenced you before to that probated sentence,
      including a home detention rather than straight jail. You have had
      an opportunity more than once now with probation to correct your
      actions with them. You let all of us down, Mr. Wooley. But it is
      not us that I am concerned about, it is you. You need help, and I
      think that help is something that maybe perhaps you are in some
      sort of denial on. I know you don’t think you have a problem, but I
      tend to believe you may because of all those missed appointments
      for drug testing and that diluted specimen that I mentioned earlier.


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                                 No. 12-31085

      All of that are grounds for revocation; therefore, I am going to
      revoke.

      I am considering in mitigation, which you have said, but again I
      think it is an evidence [sic] to me that you need help for I think a
      cocaine problem. So in that regard the Court is going to sentence
      you to 30 months imprisonment for purposes of getting you that
      help. And also to impress upon you the seriousness when you
      violate Court orders, particularly an order where I thought I gave
      you a pretty good break to handle whatever it is you need to handle
      on your own. Sometimes people need help, and you are of those I
      think need that sort of help.
The district court then “recommend[ed] highly” to the Bureau of Prisons
(“BOP”) that Wooley be provided counseling and testing for consideration
of treatment for substance abuse issues, referring specifically to a boot-
camp program and a 500-hour program.          The district court advised
Wooley that “[i]f it is offered to you take it.     [These rehabilitative
programs] not only give[] you help, but [they] also perhaps get you out of
custody sooner than you otherwise would be out on.”            After this
discussion, Wooley’s counsel objected to the sentence, explaining that “in
light of the fact that this is a significant variance from the guideline
range that was applicable in this case . . . we would object to the upward
variance in this case on that basis. And as required by the current Fifth
Circuit case law, we have to object on the grounds that it is an
unreasonable application of 18 United States Code, Section 3553 (a) and
those sentencing factors.” In response, the district court said:
      I understand. And for the record, the Court has considered all of
      the 18, 3553(a) factors. And again I feel as if the variance that I
      have ordered is in keeping with those factors, particularly the
      factors dealing with impressing upon someone like Mr. Wooley
      under the circumstances here the need to comply with orders and
      conditions of sentencing that were meant to help him, not to
      necessarily punish him.

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                                      No. 12-31085

       It is also the factor to consider is [sic] the deterrence factor that is
       needed and the treatment that I think he desperately needs. . . .
The district court overruled counsel’s objections and sentenced Wooley to 30
months imprisonment—over three times the maximum recommended
sentence of nine months.
       On appeal, Wooley contends that the district court committed reversible
error by improperly basing his above-guidelines prison sentence upon its belief
that Wooley was in need of drug treatment, in clear violation of
18 U.S.C. § 3582(a) and the Supreme Court’s decision in Tapia v. United States,
131 S. Ct 2382 (2011). Wooley argues that because counsel objected to the
upward variance, the issue was preserved and we should review under the
“plainly unreasonable” 1 standard applied to appellate review of revocation
sentences. Pointing to the revocation hearing transcript, Wooley asserts that
his sentence was based primarily upon his perceived need for rehabilitation,
and thus was an obvious abuse of discretion under existing law, and he is
therefore entitled to resentencing.
       In response, the government argues that the district court’s sentence was
properly based upon Wooley’s need for deterrence, the seriousness of the
probation violations, the court’s prior leniency with the defendant, and the
multiple instances of noncompliance. The government argues that the concern
about Wooley’s need for rehabilitation was not the “dominant” or “primary”
factor in sentencing, and the court therefore did not commit Tapia error. The
government contends that Wooley’s counsel’s general objection to the upward
variance did not sufficiently preserve the issue and that plain error review


       1 “Under the plainly unreasonable standard, we evaluate whether the district court
procedurally erred before we consider ‘the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.’ If a sentence is unreasonable, then we
consider whether the error was obvious under existing law.” United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011) (citation omitted).
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                                       No. 12-31085

applies. The government concedes that if this panel were to find that the
district court committed Tapia error, that it would be clear or obvious but
asserts that any error did not affect Wooley’s substantial rights because the
sentence was based on proper justifications.
                                 II.
       When imposing a sentence of imprisonment, a federal court must
consider the statutory factors enumerated in 18 U.S.C. § 3553(a) 2 while
“recognizing that imprisonment is not an appropriate means of promoting
correction and rehabilitation.” 18 U.S.C. § 3582(a). In 2011, the Supreme
Court interpreted the language of 18 U.S.C. § 3582(a) as prohibiting federal
sentencing courts from “impos[ing] or lengthen[ing] a prison sentence to enable
an offender to complete a treatment program or otherwise to promote
rehabilitation.” Tapia, 131 S. Ct. at 2393. The district court’s concern for
Wooley’s drug problem pervaded the court’s sentencing determination and the
court’s expressed belief that confinement would resolve Wooley’s drug problem
was a clear violation of Tapia that affected Wooley’s substantial rights. Thus,
we vacate the sentence and remand for resentencing in compliance with the
mandates of Tapia.
                                              A.
       In Tapia, the Supreme Court held that § “3582(a) precludes sentencing
courts from imposing or lengthening a prison term to promote an offender’s
rehabilitation.” 131 S. Ct. at 2391. The Tapia Court looked to both 18 U.S.C.
§ 3582(a) as well as 28 U.S.C. § 994(k), which directs the Sentencing


       2These factors direct a sentencing court to 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 punishment for the offense; (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 education or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a).
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                                       No. 12-31085

Commission to ensure that “the guidelines reflect the inappropriateness of
imposing a sentence to a term of imprisonment for the purpose of rehabilitating
the defendant.” Id. at 2388 (quoting 28 U.S.C. § 994(k)). The Court explained
that while these statutes prohibit a sentencing court from choosing a sentence
of imprisonment in lieu of probation or lengthening a prison term for
rehabilitative purposes, a court does not commit error by merely “discussing
the opportunities for rehabilitation within prison or the benefits of specific
treatment or training programs.” Id. at 2391. A court may therefore “urge the
BOP to place an offender in a prison treatment program.” Id. In Tapia, the
sentencing court explicitly stated that the defendant “needed . . . the 500 Hour
Drug Program” and that the “‘number one’ thing is the need to provide
treatment.”     Id. at 2392-93.       The Supreme Court vacated the defendant’s
sentence, reasoning that the district court’s statements reflected a possibility
that the sentence was calculated with the intent of “ensur[ing] that [the
defendant] receive certain rehabilitative services. And that a sentencing court
may not do.” Id. at 2393.
       We have applied the Tapia rule in the context of revocation hearings.
See United States v. Garza, 706 F.3d 655 (5th Cir. 2013). 3 In Garza, the
sentencing court stated that the defendant “should be required or at least be

       3 In Garza, the Tapia Court’s rule was applied to the context of revocation of
supervised release. Garza, 706 F.3d at 657. Here, the government does not dispute that
Tapia likewise applies to revocation of probation. Regardless, our ruling in Garza and the
relevant statutes compel the application of Tapia to this case. Id. at 659 (“[W]e are bound to
conclude that a sentencing court may not consider rehabilitative needs in imposing or
lengthening any term of imprisonment.”) (emphasis added). Applying the reasoning
employed in Garza, the statute governing revocation of probation, 18 U.S.C. § 3565(a)(2),
expressly directs federal courts to “resentence the defendant under subchapter A.”
Subchapter A allows courts to impose sentences of probation, a fine, or a “term of
imprisonment as authorized by subchapter D.” 18 U.S.C. § 3551(b). Subchapter D includes
18 U.S.C. § 3582(a), the statute relied upon by the Tapia Court to conclude that district courts
may not impose or lengthen prison terms for the purposes of rehabilitation. Therefore, the
statutory text bars a court from imposing or lengthening a prison term after revoking
probation with the purpose of fostering rehabilitation.
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                                 No. 12-31085

given an opportunity to participate in that residential institution drug
treatment program in order to get Garza straightened out.” Id. at 660-61
(alteration and internal quotation marks omitted). The district court then
engaged in a discussion with a representative from the probation department
to determine the length of the rehabilitative programs available in prison. Id.
at 661.   Without reference to any other statutory sentencing factors or
justifications for the sentence, the district court sentenced Garza to twenty-
four months of imprisonment, reasoning that the sentence would be sufficient
for the “short term programs,” which “ought to be enough for him.” Id. at 662.
In vacating this sentence, we expanded upon the distinction that the Tapia
Court first announced—explaining that “the distinction between legitimate
commentary and inappropriate consideration [is] whether rehabilitation is a
‘secondary concern’ or ‘additional justification’ (permissible) as opposed to a
‘dominant factor’ (impermissible).” Id. at 660. We concluded that “[t]he record
makes clear that Garza’s rehabilitative needs were the dominant factor in the
court’s mind. Although the record suggests that the court might have been
inclined to impose some upward departure in light of Garza’s conduct, it relied
only on Garza’s rehabilitative needs in fixing the length of Garza’s sentence.”
Id. at 662. We found that the error warranted reversal under the plain error
standard of review. Id. at 662-63. Similarly, we have vacated a sentence under
plain error review when the district court articulated only two factors for
imposing a prison sentence, one of which was the court’s perception of the
defendant’s anger management problem. See United States v. Escalante-Reyes,
689 F.3d 415, 423 (5th Cir. 2012) (vacating the sentence because the district
court violated Tapia when it reasoned that the defendant’s need for anger
management treatment “[has] got to be the basis for what good prison will do
for this Defendant”).


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      Garza and Escalante-Reyes each involved a clear violation of Tapia, in
that the respective sentencing courts relied nearly exclusively on the
defendant’s need for rehabilitation in imposing and justifying a prison
sentence. However, the concern for the defendant’s rehabilitation does not
need to be the only justification (as in Garza) or one of two justifications (as in
Escalante-Reyes) for a district court to violate the Supreme Court’s mandate in
Tapia. Rather, we have found Tapia error when a sentencing court expressly
relied on the 18 U.S.C. § 3553(a) sentencing factors if, despite the other proper
justifications, the erroneous consideration of the need for rehabilitation is a
“dominant” factor in the court’s mind at sentencing. See United States v.
Culbertson, 712 F.3d 235, 243 (5th Cir. 2013).
      In Culbertson, the district court imposed a sentence three times the
Guidelines recommendation, explaining that “[w]hat I’m trying to do here is
give you a period of time where you can, once again, get clean and sober and
stay clean and sober and come out after you serve your sentence and stop using
drugs and stay on your meds. . . . I think you need that time to get yourself
stabilized.” Id. at 238. We vacated the sentence under plain error review,
finding that although the sentencing court expressly considered the 18 U.S.C.
§ 3553(a) factors, the repeated emphasis on the defendant’s need for
rehabilitation and stability reveal “that a ‘dominant factor’ in imposing the
sentence was Culbertson’s need for rehabilitation.” Id. at 242 (citing Garza,
706 F.3d at 662). Noting that the sentence was three times higher than the
Guidelines recommendation, we found that this clear and obvious error
substantially affected the defendant’s rights and that the district court’s
multiple reiterations of its belief that Culbertson needed prison to stabilize
himself “affected the ‘fairness, integrity, or public reputation’ of the sentencing
proceeding,” warranting reversal of the sentence. Id. at 244.


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      The court in Culbertson relied on our earlier decision in Broussard,
which similarly found Tapia error when the district court “explicitly
considered, in both selecting and imposing a term of incarceration, the need to
incarcerate [the defendant] for treatment to address his problems.” United
States v. Broussard, 669 F.3d 537, 552 (5th Cir. 2012). Like in Culbertson and
Tapia itself, the sentencing court in Broussard articulated other, proper factors
during the sentencing hearing but in its reliance upon the defendant’s need for
rehabilitation, the court “skewed the sentencing determination” and imposed
a sentence three hundred times longer than the Guidelines recommended. Id.
at 555.
      Comparatively, we have declined to find Tapia error when the district
court merely advises the defendant of rehabilitative opportunities or expresses
its hope that the defendant will take advantage of such rehabilitative
programming while imprisoned. See United States v. Receskey, 699 F.3d 807,
808 (5th Cir. 2012) (finding that district court’s mere discussion that it “would
hope” defendant would participate in rehabilitative programming was
insufficient to create Tapia error, particularly given the court’s consideration
of the factors under 18 U.S.C. § 3553(a)). Significantly, in Receskey, before
sentencing the defendant, the district court expressly stated that a within-
Guidelines sentence would not “begin to adequately and appropriately
address” the proper statutory factors. Id. at 808. The district court then made
a recommendation to the BOP for rehabilitative programming after imposing
the prison sentence. Id. We explained that “[o]nly after [applying the statutory
factors and imposing the sentence] did the court discuss opportunities for
rehabilitation and urge Receskey to take advantage of them. . . . [The court’s]
concern over rehabilitation may have been an ‘additional justification,’ but it
was not a ‘dominant’ factor in the court’s analysis.” Id. at 812. Likewise, in


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                                   No. 12-31085

United States v. Tatum, 512 F. App’x 402 (5th Cir. 2013) (unpublished), we
reasoned that the district court’s singular reference to the defendant’s
potential opportunity to participate in rehabilitative counseling services,
alongside the court’s proper consideration of deterrence and the protection of
the public, did not violate Tapia. Id. at 402 (upholding the sentence because a
“review of the record convince[d] [the court] that the district court did not
impose or lengthen Tatum’s eighteen-month sentence on [the] basis [of the
need for rehabilitative services]”).
       Thus, this circuit’s relevant precedent distinguishes isolated references
to rehabilitative opportunities from a district court’s repeated emphasis on a
defendant’s perceived need for treatment. Additionally, as noted supra we
have repeatedly found that a court’s express reference to the proper statutory
factors does not necessarily cure Tapia error if a review of the record reveals
that the court’s consideration of the defendant’s need for rehabilitation was the
“dominant factor” in the court’s imposition of the sentence. See, e.g., Garza,
706 F.3d at 660.
      Here, the district court repeatedly expressed concern regarding Wooley’s
need for treatment and explicitly stated that treatment for his perceived drug
problem was a purpose for sentencing Wooley to 30 months imprisonment—a
prison sentence three times longer than the maximum recommended sentence
under the Guidelines. The court explained: “I know you don’t think you have
a problem, but . . . . I think . . . that you need help for I think a cocaine problem.
So in that regard the Court is going to sentence you to 30 months imprisonment
for purposes of getting you that help.” Further, after referencing Wooley’s
urinalysis sample that contained trace amounts of cocaine, and stating that
there is “something else . . . going on here,” the court noted its desire that “this
particular matter will be put to rest as a result of whatever we do here.” The


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district court again repeated its express purpose of confining the defendant to
promote his rehabilitation after Wooley’s counsel objected to the length of the
sentence. The district court overruled the objection and defended its sentence
as appropriate in part because Wooley “desperately needs” treatment.
Although the court also stated that it had considered the 18 U.S.C. § 3553(a)
factors, the only other clearly expressed justifications for the above-Guidelines
sentence here were deterrence and to impress upon Wooley the importance of
complying with the court’s orders. While these are proper considerations at
sentencing, the court’s constant reference to the need to resolve Wooley’s drug
problem by sentencing him to a prison term violated Tapia.
      The government argues that the record merely reflects the court’s
concern for Wooley’s needs and the court’s statements amount to no more than
an “admonition to him that he may be eligible for assistance for drug issues in
prison.” Viewed in isolation, some of the district court’s statements appear to
be a mere recommendation to the BOP that Wooley participate in available
programming. For example, the district court recommended to the BOP that,
during his incarceration, Wooley be provided counseling and testing for
substance-abuse consideration, and be considered for participation in a boot-
camp program. These recommendations for treatment, standing alone, are not
problematic and are explicitly permitted by the relevant caselaw. See, e.g.,
Tapia, 131 S. Ct. at 2392 (“[A] court may urge the BOP to place an offender in
a prison treatment program.”); see also Receskey, 699 F.3d at 812 (finding that
the district court’s comment that it “would hope” defendant would participate
in rehabilitative programming was insufficient to create Tapia error). The
sentencing court, here, however, went well beyond a mere recommendation to
the BOP or discussion of concern for the defendant. Rather, the court explicitly
stated that it was sentencing Wooley for “purposes” of getting him the help he


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needs and so his untreated substance-abuse problem could be “put to rest.” As
such, the district court violated the mandate of Tapia, because its primary or
“dominant” concern was Wooley’s need for drug treatment. Like the district
court in Escalante-Reyes, the sentencing court here repeatedly—both before
and after articulating the sentence—expressed its belief that Wooley’s need for
drug treatment should be addressed by an imposition of a sentence of
imprisonment. Escalante-Reyes, 689 F.3d at 425 (reversing for Tapia error
when the sentencing court’s “repeated emphasis on the need for anger
management treatment in prison was sufficient to undermine . . . confidence
that the district court would have imposed the same sentence absent the
error”) (emphasis added).
      The government additionally argues that the court’s reference to the
statutory sentencing factors forecloses a finding of Tapia error, suggesting that
a district court violates Tapia only when the defendant’s rehabilitative needs
are the court’s sole consideration in imposing the sentence. In so arguing, the
government appears to encourage this court to write an additional requirement
into the standard for establishing Tapia error. As explained supra, we have
held that Tapia error occurs when rehabilitation is a dominant factor in the
court’s sentencing decision, and we have never required the appellant to
establish that the court’s improper reliance on rehabilitation considerations
was the sole factor in sentencing. Rather, both this court and the Supreme
Court have reversed based on Tapia error even when the sentencing court
relies on other, proper factors to determine the sentence. See Culbertson, 712
F.3d at 243 (“Evidently, in both Broussard and Tapia, the sentencing courts
expressly considered the § 3553(a) factors at much greater length than the
sentencing court here, but both we and the Supreme Court vacated the
sentences and remanded for resentencing nonetheless.”).


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                                   No. 12-31085

      Because the record reflects that Wooley’s need for drug treatment was
the dominant factor in imposing a sentence three times above the
recommended Guidelines, we conclude that the district court committed a
Tapia error.
                                         B.
      The parties dispute whether Wooley’s counsel’s objection to the sentence
during the revocation hearing sufficiently preserved the issue on appeal and
thus whether this court should apply the “plainly unreasonable” or “plain
error” standard of review. “To preserve error, an objection must be sufficiently
specific to alert the district court to the nature of the alleged error and to
provide an opportunity for correction.” United States v. Neal, 578 F.3d 270,
272 (5th Cir. 2009) (citing United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000)). Here, defense counsel’s general objection to the unreasonableness of
the above-Guidelines sentence did not sufficiently alert the sentencing court to
the alleged Tapia error, as required by this circuit’s precedent. See, e.g., United
States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009) (“Although Dunigan
challenged reasonableness in district court, he did not do so on this specific
ground. Where the defendant has failed to object on specific grounds to the
reasonableness of his sentence, thereby denying the court the opportunity to
identify and correct any errors, we review for plain error.”) (internal quotation
marks omitted); see also United States v. Hernandez-Martinez, 485 F.3d 270,
272-73 (5th Cir. 2007) (“Were a generalized request for a sentence within the
Guidelines sufficient, a district court would not be given an opportunity to
clarify its reasoning or correct any potential errors in its understanding of the
law at sentencing, and its efforts to reach a correct judgment could be nullified
on appeal. . . . Had the defense objected at sentencing, the court easily could
have clarified or, if necessary, corrected itself. . . . Because it was not on notice


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                                   No. 12-31085

of the arguments Hernandez now presents, however, it was not given that
opportunity. We therefore review the case only for plain error.”) (citations
omitted).
      Moreover, on review of an alleged Tapia error, we have only applied the
“plainly unreasonable” standard when counsel makes a contemporaneous,
specific objection to the district court’s consideration of the defendant’s need
for rehabilitation. See, e.g., Receskey, 699 F.3d at 809 (applying the plainly
unreasonable    standard    when    “counsel   objected      to     the   sentence    as
unreasonable, particularly to the extent if the sentence is premised on the
availability of rehabilitation programs in prison”) (emphasis added) (internal
quotation marks omitted). By comparison, we have applied the plain error
standard of review when counsel objected to the sentence as unreasonable,
without specifically indicating the alleged Tapia error. See Culbertson, 712
F.3d at 243 (finding that defense counsel’s objection to the “‘substantive and
procedural reasonableness of the sentence’” was insufficiently specific to
preserve the Tapia error asserted on appeal); Escalante-Reyes, 689 F.3d at 423
(applying plain error review of a Tapia error when defendant’s attorney
“objected that the district court did not adequately explain its reasons for the
length of the sentence”); United States v. Tatum, 512 F. App’x 402, 402 (5th
Cir. 2013) (applying plain error review to an alleged Tapia error when counsel’s
objection below was that the sentence was “greater than necessary to satisfy
the factors under 3553(a)”).
      Here, Wooley’s counsel objected to the imposition of the above-Guidelines
sentence, “in light of the fact that th[e sentence] is a significant variance from
the guideline range that was applicable in this case . . . on the grounds that it
is an unreasonable application of 18 United States Code, Section 3553 (a) and
those sentencing factors.” Other than denying that Wooley’s noncompliance


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                                  No. 12-31085

was due to a substance-abuse problem, counsel did not indicate any objection
to the district court’s consideration of Wooley’s perceived need for treatment.
Wooley argues that defense counsel’s objection sufficiently preserved the Tapia
issue because counsel objected to the unreasonable application of the § 3553(a)
factors, and an appellate court’s analysis of the substantive reasonableness of
a sentence under § 3553(a) includes whether the court considered an improper
factor—such as the defendant’s need for rehabilitation. United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006) (“A non-Guideline sentence unreasonably
fails to reflect the statutory sentencing factors where it (1) does not account for
a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors.”) (emphasis added). Wooley
contends that his counsel’s objection to the “significant variance” and
“unreasonable application” of 18 U.S.C. § 3553(a) therefore preserved the
Tapia issue because the objection implicitly included an argument that the
court gave “significant weight to an . . . improper factor.”
      Our review of the record reveals that the sentencing court was aware
only that Wooley was objecting generally to the court’s upward variance and
the length of his above-Guidelines sentence, but was not alerted to his much
more specific objection now asserted on appeal. Wooley’s counsel’s general
objection to the reasonableness of his sentence resembles the defense counsel’s
general objection in Culbertson, and is not nearly as specific as counsel’s
objection to the court’s consideration of the defendant’s rehabilitative needs in
Receskey, and therefore is insufficient to preserve the error on appeal.
      Because Wooley’s counsel failed to object to the specific Tapia error, but
instead vaguely objected to the upward variance as an unreasonable




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                                 No. 12-31085

application of the 18 U.S.C. § 3553(a) factors, we review the district court’s
sentencing decision under the plain error standard of review.
                                      C.
      On plain error review, we retain discretion to reverse a sentencing
court’s error if we find that:
      (1) “there [is] an error or defect―some sort of [d]eviation from a
      legal rule―that has not been intentionally relinquished or
      abandoned”; (2) “the legal error must be clear or obvious, rather
      than subject to reasonable dispute”; (3) “the error must have
      affected the appellant’s substantial rights”; and (4) “if the above
      three prongs are satisfied, the court of appeals has the discretion
      to remedy the error―discretion which ought to be exercised only if
      the error seriously affect[s] the fairness, integrity or public
      reputation of judicial proceedings.”
Escalante-Reyes, 689 F.3d at 419 (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)). The four-step plain error test is “much more stringent and
difficult than the standard of review that would otherwise apply”; however, we
have emphasized that plain error review nonetheless is “protective” and
“recognizes that in a criminal case, where a defendant’s substantial personal
rights are at stake, the rule of forfeiture should bend slightly if necessary to
prevent a grave injustice.” Id. at 422-23.
      The first prong of our inquiry under plain error review was addressed
supra, in which we found that the court “deviat[ed] from a legal rule” by
imposing a thirty-month prison sentence based primarily upon Wooley’s need
for drug treatment. The second prong is likewise met because Tapia was
settled law both at the time of sentencing and, importantly, at the time of this
appeal. Thus, the error the sentencing court committed was clear and obvious.
      The parties dispute the third prong of the plain error inquiry—whether
the district court’s error affected Wooley’s substantial rights. This court in
Broussard, analyzing the third prong of plain error review, looked to the

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                                 No. 12-31085

district court’s express consideration of the defendant’s need for rehabilitative
services and the court’s significant increase from the Guidelines recommended
range to conclude that the court’s Tapia error affected the defendant’s
substantial rights. See Broussard, 669 F.3d at 555. Here, the court sentenced
Wooley to over three times the maximum recommended sentence under the
Guidelines.    Like in Broussard, the sentencing court announced other
justifications for its sentence, including the need for deterrence and the need
to impress upon Wooley the seriousness of his violations. The government
points to these proper justifications to argue that even if there were Tapia
error, Wooley’s rights were not substantially affected by it.
      Despite reference to these factors, the sentencing court repeatedly
emphasized Wooley’s “desperate[]” need for treatment and stated explicitly
that the “purpose[]” of the sentence was to allow Wooley to get help for a
cocaine problem. We conclude that Wooley’s rights were substantially affected
when the sentencing court ordered a significant upward variance, over three
times the length of the Guidelines’s recommendation, based predominantly
upon its concern for his perceived substance-abuse problem.
      Lastly, we retain discretion to reverse a sentence if the first three prongs
of the plain error inquiry are met and if we find that the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Escalante-Reyes, 689 F.3d at 419 (quoting Puckett, 556 U.S. at 135 (2009)).
This circuit has repeatedly emphasized that even when we find that the first
three factors have been established, this fourth factor is not “automatically
satisfied.” Garza, 706 F.3d at 663. Rather, we should reserve our discretion
for “‘those circumstances in which a miscarriage of justice would otherwise
result.’” Escalante-Reyes, 689 F.3d at 425 (quoting United States v. Olano, 507
U.S. 725, 736 (1993)). We have previously held that the exercise of discretion


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                                  No. 12-31085

to reverse a sentence is warranted when a district court’s Tapia error results
in the imposition of a sentence “three times in excess of [the] advisory range.”
Culbertson, 712 F.3d at 244. Because the district court improperly considered
Wooley’s perceived rehabilitation needs in imposing a prison term over three
times greater than the Guidelines maximum recommendation, the failure to
reverse this decision would negatively affect that “fairness, integrity or public
reputation” of the sentencing proceeding and result in a miscarriage of justice
because it would permit a district court to impose a substantial upward
variance based upon a factor that has been clearly prohibited by the Supreme
Court and Congress. Tapia, 131 S. Ct. at 2391; see also 18 U.S.C. § 3582(a).
“[W]ere [this court] not to correct the error, the end result would be a
sentence . . . which the court lacked the power to craft as it did.” United States
v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009).
                                         III.
      The sentencing court committed a legal error when it based Wooley’s
above-Guidelines sentence upon his perceived need for drug treatment. The
district court’s error was clear or obvious, the error affected Wooley’s
substantial rights, and affected the fairness and integrity of the proceedings.
Accordingly, we VACATE the sentence and REMAND to the district court for
resentencing in light of this opinion.




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