                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10472

                Plaintiff-Appellee,             D.C. No.
                                                2:09-cr-00433-DLR-1
 v.

JULIO JESUS HIGUERA,                            MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Douglas L. Rayes, District Judge, Presiding

                    Argued and Submitted November 12, 2019
                            San Francisco, California

Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges.

      Julio Jesus Higuera appeals the district court’s order revoking his supervised

release and imposing a 20-month prison sentence. We have jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand

for resentencing.

      1.     Higuera argues that his admission to the alleged violation of the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
conditions of his supervised release was not knowing, intelligent, and voluntary

because he incorrectly believed that the maximum sentence he could receive was

12 months. We review de novo whether the admission was voluntary and for clear

error whether it was knowing and intelligent. United States v. Stocks, 104 F.3d

308, 312 (9th Cir. 1997).

      We find no error under either standard. The magistrate judge expressly told

Higuera that he could receive a maximum sentence of 24 months. Higuera was

also provided with a revocation petition and accompanying packet listing the

maximum sentence as 24 months, and he stated on the record that he had read and

understood the petition. Moreover, Higuera’s attorney attested that he reviewed

with Higuera the possible term of imprisonment that could be imposed. Higuera

does not contend that his attorney provided him with incorrect information. These

facts are sufficient to support the district court’s finding that Higuera’s admission

and waiver of the revocation hearing were knowing, intelligent, and voluntary.

      2.     The district court plainly erred by imposing a 20-month sentence for

the purpose of allowing Higuera to participate in the Bureau of Prisons’

Residential Drug Abuse Program (RDAP). See Tapia v. United States, 564 U.S.

319, 332 (2011) (holding that the sentencing statute “precludes sentencing courts

from imposing or lengthening a prison term to promote an offender’s

rehabilitation”); United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011)


                                          2
(applying Tapia to sentences imposed for violations of supervised release

conditions).

      The district court’s only explanation for its sentence was that it was intended

“to allow [Higuera] correctional treatment; in particular, the RDAP program.”

This is little different than the explanation the Supreme Court found improper in

Tapia. See Tapia, 564 U.S. at 322. Though the district court’s colloquy here was

acceptable, it erred when it justified the term of Higuera’s sentence based on his

ability to secure rehabilitative services. See id. at 335. The error affected

Higuera’s substantial rights because the district court’s improper focus on

imposing a sentence sufficiently long to allow Higuera to participate in RDAP

gives rise to a reasonable probability that he would have otherwise received a

lesser sentence. United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011)

(where the district judge’s on-the-record comments confirmed that “the need to

provide treatment was one of the considerations that affect[ed] the length of the

sentence he imposed,” the defendant demonstrated “that there [was] a reasonable

probability that [he or she] would have received a different sentence but for the

district judge’s impermissible consideration of this factor” and “also demonstrated

that this error seriously affected the fairness, integrity, or public reputation of

judicial proceedings”) (internal quotation marks omitted); see also Grant, 664 F.3d

at 279, 282 (vacating, on plain error review, a sentence imposed in violation of


                                            3
Tapia). We therefore vacate the sentence and remand to the district court for

resentencing.1

       AFFIRMED in part, VACATED in part, REMANDED.




      1
      In light of our disposition, we do not address Higuera’s argument that the
20-month sentence was substantively unreasonable.

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