                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11508
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 1:13-cr-00357-ODE-JFK-11

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JAMES CORY LINDER,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (August 2, 2019)

Before WILSON, MARTIN, and JULIE CARNES, Circuit Judges.

MARTIN, Circuit Judge:

      James Cory Linder appeals his twenty-four-month prison sentence, imposed

upon revocation of his supervised release. At the revocation hearing, the district

court centered its attention on Linder’s drug addiction and how he would benefit
from incarceration, because it would impede his access to drugs. The government

concedes the district court violated Tapia v. United States, 564 U.S. 319, 131 S. Ct.

2382 (2011) in this way. After careful review, we agree with Linder that this plain

error should be corrected. We therefore vacate and remand for resentencing.

                                I. BACKGROUND

      Linder was originally sentenced to twenty-four months imprisonment and

three years of supervised release in June 2014, after he pled guilty to one count of

conspiring to possess with the intent to distribute oxycodone. When serving his

initial term of supervised release, he violated the terms, and as a result was

reincarcerated with a second term of supervised release to follow. He began

serving this second supervised release term in September 2017. But he again

violated several terms, though only one violation involved a controlled substance.

      Linder admitted as much at the hearing on his supervised release revocation

held in March 2018. Because of his violations, Linder’s recommended prison

sentence range under the United States Sentencing Guidelines was eight to

fourteen months imprisonment, with a maximum sentence of twenty-four months.

Linder’s counsel suggested a sentence of twelve months and one day. The

government recommended a sentence of eighteen months. The district court

imposed the maximum statutory sentence of twenty-four months.




                                          2
       The court opened and concluded its statements “regarding the sentence”

with comments about Linder’s addiction, his treatment options, and his access to

drugs. The court began by saying:

       [E]specially when people are addicted to oxycodone, the first resort
       should be the therapy and medical treatment. But we’ve been through
       that loop . . . . I believe that when treatment efforts have completely
       failed, as I think they have here, the best recourse is prison, because
       presumably, while Mr. Linder is in prison, he cannot get these drugs.
       And that, to me, is the greatest hope that he might be able to shake the
       addictions that are really driving his life.

Immediately before announcing Linder’s sentence, the court again spoke of

prison’s potential to limit Linder’s access to drugs:

       I think at this point, it is certainly indicated that the Court should give
       a sentence above the guideline range. . . . It’s clear to me that what’s
       going to happen when Mr. Linder is out on the streets again is he’s
       going to be using drugs again . . . . I think while sending somebody to
       prison is, as I said, particularly in an oxycodone situation should not be
       the first resort. Sometimes it is a last resort, and it will ensure that for
       24 months, or whatever sentence I give, that Mr. Linder will not be out
       on the streets using drugs.
During the hearing, the court also reviewed the offenses listed in the relevant

violation report1 and described Linder’s overall criminal history. Some of the

court’s remarks reflected concerns “both for Mr. Linder’s welfare and for the

welfare of the community.”




       1
         The district court brought up a car accident related to one of the offenses, though none
is mentioned elsewhere in the record before us.

                                                3
       After the court announced Linder’s twenty-four-month sentence, defense

counsel asked the court to reconsider Linder’s sentence. The court denied the

request, explaining: “[T]o me, the thing that just drives everything here is the

drugs, that’s the concern, my big concern.”

                               II. LEGAL STANDARDS

A. PROCEDURAL REASONABLENESS

       Linder argues his sentence is procedurally unreasonable because the district

court improperly based his sentence on the rehabilitative effect of prison.2 See

Tapia, 564 U.S. at 335, 131 S. Ct. at 2393. The Supreme Court held in Tapia that

federal courts “may not impose or lengthen a prison sentence to enable an offender

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

Because rehabilitation is an impermissible sentencing factor, “a court errs by

relying on or considering rehabilitation in any way when sentencing a defendant to

prison.” United States v. Vandergrift, 754 F.3d 1303, 1311 (11th Cir. 2014). The

rule announced in Tapia applies to prison sentences imposed upon revocation of

supervised release. Vandergrift, 754 F.3d at 1309.

B. PLAIN ERROR REVIEW




       2
        Because Linder prevails on his procedural argument, we do not address his alternate
challenge to the substantive reasonableness of his sentence.
                                              4
      We normally review for abuse of discretion the reasonableness of a sentence

imposed upon revocation of supervised release. United States v. Alberts, 859 F.3d

979, 985 (11th Cir. 2017). But because Linder did not object to the procedural

reasonableness of his sentence before the district court, we review this argument

for plain error. Vandergrift, 754 F.3d at 1307.

      Plain error review is subject to three conditions. See United States v. Olano,

507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). “First, there must be an error

that has not been intentionally relinquished or abandoned. Second, the error must

be plain—that is to say, clear or obvious. Third, the error must have affected the

defendant’s substantial rights.” Molina-Martinez v. United States, 578 U.S. ___,

136 S. Ct. 1338, 1343 (2016) (citations omitted). To satisfy the third condition, a

defendant must ordinarily “‘show a reasonable probability that, but for the

error,’ the outcome of the proceeding would have been different.” Id. (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340

(2004)). “Once these three conditions have been met, the court of appeals should

exercise its discretion to correct the forfeited error if the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. (quotation

marks omitted) (quoting Olano, 507 U.S. at 736, 113 S. Ct. at 1779).

                                  III. DISCUSSION




                                            5
      Both sides agree, and our independent review of the record confirms, that

the district court considered the rehabilitative effects of prison during Linder’s

revocation hearing. The government correctly concedes this was plain error.

Alberts, 859 F.3d at 986. This leaves us with only two issues to decide: (1)

whether Linder has shown the Tapia error affected his substantial rights; and (2)

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

judicial proceedings.” Vandergrift, 754 F.3d at 1307 (alteration adopted) (quoting

United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785 (2002)).

A. EFFECT ON SUBSTANTIAL RIGHTS

      The court’s statements during the revocation hearing evidence a reasonable

probability that its rehabilitation concerns “drove the district court’s sentencing

decision.” See Vandergrift, 754 F.3d at 1312 (quotation marks omitted) (quoting

United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012)). To begin, the court

mentioned its concerns about Linder’s drug use as it announced its decision to

impose a sentence above the guideline range. And the court’s final comment about

the sentence it imposed confirms that its “big concern” about “drugs” dictated the

length of Linder’s sentence. Linder has sufficiently shown that rehabilitation

likely was the court’s primary concern. The court’s comments about drugs

invariably reflect concern over Linder’s drug use, with only occasional mention of

public safety. Further, unlike in the cases the government relies on, Linder’s


                                           6
rehabilitative needs here were not “an ancillary concern,” Alberts, 859 F.3d at 986,

or a “minor fragment of the court’s reasoning.” Id. (quotation marks omitted)

(quoting Vandergrift, 754 F.3d at 1312.) Instead the court’s remarks that as “a last

resort” prison was Linder’s “best recourse” to deal with his drug problem “both led

off the discussion and bore [much] of its emphasis.” See Bennett, 698 F.3d at 201.

      The government stresses that the court mentioned other issues during the

revocation hearing, such as the multiple violations Linder committed while on

supervised release. However, the government does not adequately explain how

those issues diverted the court from its expressed primary concern about “drugs.”

The government’s arguments do not defeat Linder’s showing by a reasonable

probability, that but for the district court’s Tapia error, he would have received a

shorter prison sentence. Molina-Martinez, 136 S. Ct. at 1343. The third plain error

condition is therefore met.

B. EXERCISE OF DISCRETION

      Finally, the Tapia error involved here implicates the fairness, integrity or

public reputation of the judicial proceedings. See Vandergrift, 754 F.3d at 1307.

It presents the reasonable probability the district court extended Linder’s sentence

because of an impermissible sentencing factor, in direct violation of binding

precedent of both the Supreme Court and this Court. Correcting this plain Tapia

error is therefore an appropriate use of our discretion, particularly because the


                                          7
district court imposed a sentence that was longer than the applicable guideline

range. See, e.g., United States v. Garza, 706 F.3d 655, 663 (5th Cir. 2013); United

States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012); United States v.

Taylor, 679 F.3d 1005, 1007 (8th Cir. 2012); United States v. Grant, 664 F.3d 276,

282 (9th Cir. 2011).

                                IV. CONCLUSION

      Because Linder has shown the district court committed a plain error that

undermines confidence in the outcome of his sentence and the integrity of the

sentencing proceeding, we vacate his sentence. We remand for resentencing

consistent with this opinion.

      VACATED and REMANDED.




                                         8
JULIE CARNES, Circuit Judge, dissenting:

      Defendant James Linder appeals a 24-month sentence that was imposed by

the district court after the second revocation of Defendant’s supervised release.

Defendant is a serial drug offender. He originally pled guilty in 2014 to conspiring

to possess oxycodone with intent to distribute, and the district court sentenced him

to 24-months imprisonment, with three years of supervised release to follow.

      After completing his sentence of imprisonment, Defendant began his term of

supervised release. It did not start, or end, well. In less than eight months, he had

committed seven violations of release, including possession of heroin and DUI

(less-safe drugs). For that reason, in March 2016, the district court revoked this

first term of supervised release and sentenced Defendant to another 24 months of

imprisonment, with a three-year term of supervised release to follow.

      Defendant completed this latest term of imprisonment, and supervised

release began again. But in just a few months’ time, Defendant had committed

nine violations of his release, including possession of methamphetamine. After the

probation officer petitioned the district court to once again revoke Defendant’s

supervision, Defendant was arrested and released on bond. He absconded. After

being located a month later, and arrested again, a revocation hearing was held in

March 2018. The district court revoked this second term of supervised release and




                                          9
sentenced Defendant to another 24 months of imprisonment, but this time with no

supervised release to follow.

      It is this last 24-month sentence that Defendant now appeals, arguing that the

district court considered rehabilitation when imposing his prison sentence, in

violation of the Supreme Court’s holding in Tapia v. United States, 564 U.S. 319

(2011), and that he should be resentenced. Notably, Defendant never objected to

this purported Tapia violation at sentencing, which, had he done so, would have

given the district court an opportunity to clarify whether the particular sentence

imposed had been prompted by the court’s interest in rehabilitating Defendant.

Instead, Defendant waited until it was time to appeal to contend that a Tapia

violation had occurred: meaning that Defendant now has to satisfy the plain error

test to succeed on this claim.

      The majority vacates the sentence, concluding that the district court

committed a Tapia error and that Defendant’s failure to object is excused because

plain error occurred. I respectfully disagree. A reading of the complete sentencing

record, as opposed to a couple of isolated statements by the district court, makes it

clear to me that the district court did not fashion its sentence based on any goal of

rehabilitating Defendant from his drug dependency. Indeed, based on its

comments and its own long, disappointing experience with Defendant, the district

court well knew that this would be a lost cause. Moreover, even assuming that the


                                          10
record indicated that the district court committed a Tapia error, I conclude that

Defendant, whose counsel chose not to object at sentencing to what counsel now

contends to be an error, has not met his burden under the plain error standard.

I.      BACKGROUND
        A.       Defendant Violates Conditions of His First Supervised Release

        As noted, in February 2014, Defendant pled guilty to conspiring to possess

oxycodone with intent to distribute, and the district court sentenced him to 24

months imprisonment and a three-year term of supervised release. He served his

sentence and, after only seven months on release, Defendant violated his

supervised release term in seven ways: (1) committing the offense of DUI (less

safe drugs); (2) committing the offense of Possession of Heroin; (3) failing to

submit to drug testing; (4) failing to submit written reports to his probation officer;

(5) failing to notify his probation officer of his arrests for DUI and Possession of

Heroin; (6) associating with a convicted felon (i.e. co-defendant Shayna Massara)

while using heroin1; and (7) failing to participate in a drug treatment program.

        On March 23, 2016, the district court revoked Defendant’s first supervised

release and sentenced him to 24-months imprisonment and three years of

supervised release. Of some pertinence to the matter at issue in this case, the


1
  According to the violation report, while driving a vehicle in Cobb County, Defendant was stopped by officers who
observed an unconscious Massara in the vehicle. Taken by ambulance to the hospital, Massara was determined to
have overdosed on heroin. Defendant, the driver of the vehicle, admitted that he had been using heroin as well,
which led to his arrest for DUI and possession of heroin.

                                                       11
district court inquired, given Defendant’s abject failure to abide by the drug

conditions of release, whether Defendant had participated in the BOP’s intensive

drug treatment program when he served the 24-month sentence for the underlying

conviction. The Government counsel, defense counsel, and the probation officer

indicated to the court that this federal drug treatment program was not available for

an offender with such a short sentence. Thus, the court was well aware that a 24-

month sentence would not permit an offender to enroll in the drug treatment

program sponsored by the BOP. Nonetheless, on notice that a meaningful

rehabilitative opportunity was not in the offing, the district court imposed a 24-

sentence, explaining, “I think it’s clear that a sentence within the guideline range

[of 8 to 14 months] is not enough given the multiple problems that [Defendant] has

had staying away from hard drugs, and then, you know, the new conviction. I just

don’t think a sentence of less than 24 months would cut it.”

      B.     Defendant Violates Conditions of His Second Supervised Release
      Defendant served the above-described sentence, after which his second

supervised release term commenced on September 1, 2017. In less than six

months, Defendant violated the terms of his second supervised release in nine

ways: (1) failing to participate in a drug treatment program; (2) failing to submit

required drug tests; (3) failing to report to his probation officer as directed;

(4) leaving the judicial district without permission; (5) committing the offense of


                                           12
Following Too Closely; (6) failing to notify his probation officer of his offense;

(7) failing to provide monthly employment verification as directed; (8) failing to

submit required monthly reports; and (9) committing the offense of Possession of

Methamphetamine. Defendant’s Possession of Methamphetamine offense

occurred after Defendant had been released on bond and had then absconded.

      Based on these violations, on March 27, 2018 the district court revoked

Defendant’s second supervised release. It is the sentence imposed on this

revocation that is at issue here. As to the sentence to be imposed, the Government

argued for an 18-month sentence, noting Defendant’s multiple supervised release

violations and explaining that his recent methamphetamine possession violated not

only his supervised release conditions, but also violated the terms of his bond. The

Government further indicated that it was not asking for the maximum 24-month

sentence because Defendant’s agreement that his supervised release should be

revoked saved the Government the expense of having to bring witnesses to court.

      Defendant’s counsel conceded that Defendant’s conduct involving continued

drug possession has “not been great” and “is something that should be punished.”

Defense counsel recommended a 12-month sentence, which was toward the high

end of the 8–14 month Guidelines range.

      As to Defendant’s drug dependency, it was defense counsel, not the district

court, who introduced that topic and who focused on it in counsel’s remarks,


                                         13
stating “addiction . . . clearly that’s the issue here.” Counsel explained that

Defendant “needs treatment” but that “he has to deal with [that] on his own”

because “I don’t think that the criminal justice system is the . . . appropriate forum

for that any longer.” Further, defense counsel advocated against re-imposing

supervised release, as Defendant had performed so poorly.

      The district court revoked supervised release “[i]n light of the admissions.”

The court addressed defense counsel’s arguments that Defendant had made some

progress, making clear that the court saw nothing to be gained by further efforts at

treatment:

      Now, regarding the sentence, I hear what you’re saying about possible
      progress, but it doesn’t look good to me. I do believe that when --
      especially when people are addicted to oxycodone, the first resort
      should be the therapy and medical treatment. But we’ve been through
      that loop, and as counsel have pointed out, this is the second hearing on
      revocation of supervised release.
      I believe that when treatment efforts have completely failed, as I think
      they have here, the best recourse is prison, because presumably, while
      [Defendant] is in prison, he cannot get these drugs. And that, to me, is
      the greatest hope that he might be able to shake the addictions that are
      really driving his life.

      The district judge then outlined in great detail what it saw as Defendant’s

“complete pattern of irresponsibility,” noting that the record indicated that

Defendant had not “really made any efforts to overcome his problems.” The

district court cataloged Defendant’s numerous acts of non-compliance with the

conditions of his release, including: (1) his non-compliance with drug treatment

                                          14
requirements, such as refusing to attend any classes at one center, then being

assigned to a second program and refusing to attend classes there; (2) his refusal to

submit to drug tests; (3) his failure to report to his probation officer when directly

told to do so; (4) his unlawful travel outside the district; (5) his traffic violations;

(6) his failure to report an automobile accident to his probation officer; (7) his

multiple location-monitoring violations; and (8) his absconding after the magistrate

judge had given him a bond.

      The district court continued its explanation by focusing on Defendant’s drug

violations and his recent arrest for methamphetamine possession while in fugitive

status on his bond. The district court also cited Defendant’s “extensive criminal

history that includes possession of a controlled substance, including Ecstasy,

heroin and marijuana, underage possession of alcohol, an open container violation,

driving on a suspended license, possession and use of drug-related objects, theft by

shoplifting, and theft of -- and theft of property.”

      With that wind-up, the district court concluded by explaining why it

believed that Defendant’s conduct warranted a 24-month sentence:

      I think at this point, it is certainly indicated that the Court should give
      a sentence above the guideline range. I am empowered to give a
      sentence of 24 months, up to 24 months, and specifically am
      empowered to give a sentence above the guideline range if I feel that
      the guideline range is not adequate. It’s clear to me that what’s going
      to happen when [Defendant] is out on the streets again is he’s going to
      be using drugs again and he could be a danger to people in the
      community, particularly if he gets in an automobile.
                                            15
        I think while sending somebody to prison is, as I said, particularly in an
        oxycodone situation should not be the first resort. Sometimes it is a last
        resort, and it will ensure that for 24 months, or whatever sentence I give,
        that [Defendant] will not be out on the streets using drugs. I do feel that
        24 months is the right sentence in this case. I do realize that it can be
        viewed as a harsh sentence, but honestly, I think at this point in time it
        is the best bet, both for [Defendant’s] welfare and for the welfare of the
        community.

(emphasis added)

        Defense counsel noted that the charge against Defendant for theft was still

pending2 and requested that the district court reconsider the imposed sentence to

the extent that it was a factor, but acknowledged “that probably was not the final –

factor in the Court’s decision.” The district court agreed, responding, “It was not.

I mean, to me, the thing that just drives everything here is the drugs, that’s the

concern, my big concern.”

        The district court then imposed a 24-month sentence of imprisonment, with

no supervised release to follow. When it came time for defense counsel to

articulate any objections to the sentence, she objected only to the substantive

reasonableness of the sentence, arguing that “a guideline sentence would have been

more appropriate.” Notably, there was no objection that the district court had

violated Tapia by considering rehabilitation when imposing its sentence. And

defense counsel’s silence is understandable, as the the district court never


2
  According to the PSR, the pending charge related to Defendant’s arrest in 2013 for theft by shoplifting and
possession of heroin, when Defendant was observed at a Wal-Mart store stealing a pellet gun and syringe while in
the possession of heroin and of a driver’s license in the name of “Peter Quintana-Perez.”

                                                       16
mentioned the availability of a drug treatment program in prison. As noted, given

Defendant’s short sentence, the district court had been made aware that he was not

a candidate for such a program. Indeed, although the court made two comments

suggesting that it might also benefit Defendant to be in jail and away from ready

access to drugs, it is clear from the totality of the court’s remarks that its overriding

concern focused on the danger Defendant posed to the community because he

could not stay away from drugs and because he had demonstrated on multiple

occasions that he posed a danger to his community when he was using drugs.

Nevertheless, Defendant challenges his sentence on appeal as being procedurally

unreasonable arguing that the district court improperly considered the rehabilitative

effect of prison when imposing his sentence.3

II.     Analysis

        A.       Standards of Review
        “We review the sentence imposed [by the district court] upon the revocation

of supervised release for reasonableness.” United States v. Vandergrift, 754 F.3d

1303, 1307 (11th Cir. 2014), quoting United States v. Velasquez Velasquez, 524

F.3d 1248, 1252 (11th Cir. 2008) (per curiam). We review the reasonableness of a

sentence for abuse of discretion. United States v. Alberts, 859 F.3d 979, 985 (11th

Cir. 2017). However, because Defendant did not object to the procedural


3
  Defendant also challenges his sentence as substantively unreasonable. The majority does not reach this issue,
given its determination that the case should be remanded for the district court to resentence Defendant.

                                                        17
reasonableness at the time of his sentencing, we review that claim for plain error.

Id.; Vandergrift, 754 F.3d at 1307.

      B.     Defendant’s Sentence is Procedurally Reasonable
      Defendant maintains his sentence is procedurally unreasonable under Tapia,

564 U.S. 319, because the district court improperly considered his need for

rehabilitation as a sentencing factor. “In reviewing whether a sentence is

reasonable from a procedural standpoint, we must ensure that the district court

committed no significant procedural error during sentencing.” Alberts, 859 F.3d at

985 (internal quotations omitted). To demonstrate that his sentence was

procedurally unreasonable under a plain error standard, Defendant must show

(1) the District Court erred; (2) the error was plain; (3) the error affected his

substantial rights; and (4) the error “seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” Id., citing Vandergrift, 754 F.3d at

1307 (quotation omitted and alteration adopted).

             1.     Requirement That a Defendant Make a Contemporaneous
                    Objection to Any Error Committed During a Sentencing
                    Procedure

      In any trial proceeding, a litigant who wishes to preserve an issue for appeal

is required to object to the particular ruling. When it comes to objecting to

something that the district court has ruled on in a criminal sentencing proceeding,

our caselaw has made it clear that this requirement is particularly important. See


                                           18
United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990) (a clearly articulated

objection to the court’s reliance on a particular fact or consideration in imposing

sentence “apprise[s] the district court of the need to identify for the record the

evidence upon which it relied in making its factual finding.”) “The purposes of the

rule in Jones are to give the district court an opportunity to correct errors and to

produce a record that will guide appellate review . . . . Neither of these purposes is

served with respect to a particular argument if it is not made first to the district

court.” United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995). “Where

the district court has offered the opportunity to object and a party is silent or fails

to state the grounds for objection, objections to the sentence will be waived for

purposes of appeal, and this court will not entertain an appeal based upon such

objections unless refusal to do so would result in manifest injustice.” Jones, 899

F.2d at 1103. Accord Maurice, 69 F.3d at 1557 (“an objection that has been

waived will only be entertained on appeal under the plain error doctrine to avoid

manifest injustice.”)

      Our court’s particular insistence on a contemporaneous objection to a

sentencing error makes sense, given the nature of such proceedings. A sentencing

hearing typically involves a lot of spontaneous interplay between the court and

counsel. The court will often ask questions or make observations, and there is

frequently a good deal of back-and-forth. Given the free flow of communication


                                           19
between the court, counsel, and the defendant, it is important that a defendant

advise the court, via an objection, when it believes the court may have relied on an

improper factor, so that the court can either correct its error or clarify whether it is

relying on the particular factor.

      Here, Defendant clearly had an opportunity to object, but failed to alert the

district court that Defendant believed the court may have relied on an improper

Tapia factor. Accordingly, we can now entertain Defendant’s tardy claim only if

he satisfies the plain error standard.

             2.     Plain Error

      “A district court commits a procedural error if it considers an improper

sentencing factor.” Alberts, 859 F.3d at 985. Tapia established that a Defendant’s

rehabilitative needs constitutes an improper sentencing factor. Tapia, 564 U.S. at

330–35. A sentencing court “may not impose or lengthen a prison sentence to

enable an offender to complete a treatment program or otherwise to promote

rehabilitation.” Id. at 335. We have held that Tapia error occurs where the district

court “considers rehabilitation when imposing or lengthening a sentence of

imprisonment.” Vandergrift, 754 F.3d at 1310 (emphasis in original).

      It is true that the Government conceded that the district court committed a

plain Tapia error when it referenced the possibility that its sentence might also

benefit Defendant, not just the community. But we are not bound by that


                                           20
concession. See Roberts v. Galen of Va., Inc., 525 U.S. 249, 253 (1999) (“[T]he

concession of a point on appeal by respondent is by no means dispositive of a legal

issue . . .”); United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009) (noting that a

court is not required to accept the concession of the government as a party). And

in this case, based on the court’s overall explanation of its sentencing decision, I

believe that the Government wrongly concedes that it is plain that the district court

violated Tapia.

      While the district court did offer an observation that prison offered the

“greatest hope” that Defendant might “shake the addictions that are really driving

his life” and expressed its belief that the sentence benefited not just the welfare of

the community, but also Defendant’s welfare, those isolated comments do not

demonstrate that the district court considered the need for rehabilitation in its

decision to impose or lengthen Defendant’s term of imprisonment, given the other

reasons the court offered for its sentence. Rather, it appears that the district court,

in responding to Defendant’s own arguments related to his drug addiction, was

inserting a note of empathy.

      Moreover, “[a] court commits no error by discussing the opportunities for

rehabilitation within prison or the benefits of specific treatment or training

programs [,] . . . [and] a court properly may address a person who is about to begin

a prison term about these important matters.” Tapia, 564 U.S. at 334. Indeed,


                                          21
while as an appellate court, we often focus on technical things like Guidelines’

calculations, a sentencing proceeding is a more holistic endeavor. A good judge

will not just tote up offense levels, but will instead try to engage with the defendant

on a human level to render a sentence that accomplishes the purposes of 18. U.S.C.

§ 3553(a). In delivering the bad news that a defendant is being sent to jail, a judge

will frequently express hope that the prison experience will prove not to be entirely

negative, by observing that the defendant can make positive achievements if he

chooses to use the experience to better himself. Such a comment is a gesture of

kindness and positivity; not necessarily an indication that the judge has based its

sentencing decision on rehabilitation considerations. And this kind of exchange

can be particularly valuable when interacting with a defendant on supervised

release. Further, while an addict or long-time criminal may listen as little to a

sentencing judge as he has listened to the numerous other people in his life who

have advised him to straighten up, a stern admonition by a judicial authority figure

that the defendant will have no peace in his life until he casts aside his destructive

behaviors is a message that may, on occasion, carry some weight.

      I fear, though, that opinions like the majority’s will greatly discourage a

sentencing judge from engaging on any personal or helpful level with the person

being sentenced. Instead, a prudent judge may conclude from the majority’s

opinion that robotic, scripted remarks are the safe way to proceed and resist any


                                          22
specific expressions of encouragement or plain-talking advice for fear that it will

appear that the judge is considering the defendant’s rehabilitative needs in

imposing the sentence. That would be unfortunate.

      I have one other fear, should the majority opinion reflect a changing

approach in this area, and that is that the majority is encouraging sandbagging by

defense counsel. Our caselaw emphasizes the importance of preserving, through

an objection, a perceived sentencing error. To ensure that litigants are incentivized

to do so, the plain error standard should have some teeth to it. But in finding plain

error on these facts, the majority’s approach largely defangs this standard. There

was absolutely no reason for defense counsel to be reticent in objecting, had she

truly believed that the district court’s sentence was infected with Tapia error.

Without any doubt, an objection would have resulted in a response by the district

court that would have provided absolute clarity as to the court’s reasoning. But I

suspect that defense counsel did not want clarity, and this decision serves to reward

that strategic decision, as well as undermining our caselaw requiring a

contemporaneous objection to any sentencing error.

      At any rate, even assuming that the district court committed plain Tapia

error, the Government correctly argues that Defendant has not shown that remand

for resentencing is warranted because Defendant failed to satisfy the third prong of

the plain error analysis.


                                          23
             3.     Impact on Defendant’s Substantial Rights

      As the Government argues, the record reflects that any Tapia error by the

district court did not affect Defendant’s substantial rights. “In order to affect a

defendant’s substantial rights, an error ‘must have affected the outcome of the

district court proceedings.’” Alberts, 859 F.3d at 986, quoting United States v.

Olano, 507 U.S. 725, 734 (1993). “It is the defendant rather than the Government

who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at

734. “This burden of showing prejudice to meet the third-prong requirement is

anything but easy.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.

2005).

      Defendant failed to show that any Tapia error here affected his sentence.

The sentencing transcript clearly reveals that any rehabilitative consideration was

merely an ancillary concern of the district court and constituted only a minor

fragment of the court’s sentencing rationale. “A defendant cannot show that his

substantial rights were impacted if his ‘rehabilitative needs clearly constituted only

a minor fragment of the court’s reasoning.’” Alberts, 859 F.3d at 986, quoting

Vandergrift, 754 F.3d at 1312 (quotation omitted). Here, the valid considerations

of punishment, deterrence, and public safety fully supported the district court’s

decision to impose a 24-month sentence.




                                          24
        The record reflects three primary concerns of the district court in sentencing:

(1) punishing Defendant for his irresponsible conduct, (2) vindicating the court’s

legitimate interest in insisting that supervisees follow its directives4; and

(3) protecting the community by keeping Defendant off the streets for a longer

period of time than that called for by the Guidelines. The district court deemed the

guideline range “not adequate” following a lengthy recitation of appropriate

§ 3553(a) factors, including Defendant’s “extensive criminal history,” his “pattern

of irresponsibility,” and his most recent serious drug offense while absconding on

his bond. The district court concluded that an above-guideline sentence of 24

months was warranted because:

        It’s clear to me that what’s going to happen when [Defendant] is out on
        the streets again is he’s going to be using drugs again and he could be
        a danger to people in the community, particularly if he gets in an
        automobile.5
The district court’s stated objective was to “ensure that for 24 months . . . that

[Defendant] will not be out on the streets using drugs.”6 Thus, it was Defendant’s


4
  Defendant’s breaches were more than just illegally using drugs. He refused to take any of the steps he was
directed to take to help him accomplish that goal, such as attending treatment sessions or speaking to drug
counselors. And he directly violated specific conditions, such as by absconding when he was generously offered
bond after being cited for his most recent violations.
5
  The district court’s concern about the dangers posed by defendant’s use of an automobile while under the
influence of drugs was a realistic one. As set out in note 1, while on supervised release, the defendant had been
arrested while operating a motor vehicle under the influence of heroin and with his female co-defendant unconscious
in the vehicle from a heroin overdose. Defendant’s criminal record also included a conviction for driving on a
suspended license and a conviction for possession and use of drug-related items when Defendant was arrested inside
a vehicle after reports that he and a companion were injecting drugs.
6
 The district court demonstrated concern for the well-being of one member of the community in particular, Ms.
Massara, who was then in a halfway house. In addition to being a co-defendant, Ms. Massara was also involved in

                                                       25
history of recidivism, the nature and circumstances of his drug offenses, and the

district court’s desire to protect the community that drove the court’s sentencing

analysis.

         While the district court expressed hope that Defendant could shake his

addictions while in prison and its belief that the sentence imposed was not only

best for the community, but also best for Defendant’s welfare, that observation, by

itself, is insufficient to vacate Defendant’s sentence, given the other appropriate

factors that clearly motivated the court. For instance, in Vandergrift we held that

an above-guideline sentence of 24 months was procedurally reasonable despite the

district court stating: (1) “I’ve also got to consider what’s best for the defendant as

a factor in the equation;” (2) “it’s difficult to decide what really is best for the

defendant in this case;” (3) “vocational training for a period of time in the prison

system . . . could also help save the defendant’s life;” and (4) “the sentence is being

imposed in excess of the guidelines at 24 months ... for the benefit of the

defendant.” Vandergrift, 754 F.3d at 1311.

         Likewise, in Alberts, defendant asserted that the district court violated Tapia

by stating at sentencing that “[y]our pattern of behavior over the years

demonstrates to me you do pose a danger to the community and you need a period



Defendant’s heroin offense during his first supervised release. The district court directed that Defendant not be
permitted to contact Ms. Massara, even while in prison.

                                                         26
of time where you can receive the treatment that you should have.” Alberts, 859

F.3d at 985. We held that the district court’s error did not affect defendant’s

substantial rights because “the sentencing transcript showed that rehabilitation was

merely an ancillary concern” and the district court’s “‘primary considerations’

were the seriousness of [defendant’s] offense, the need for punishment and specific

deterrence, and the need to protect society from his dangerous actions.” Id. at 986.

         This record does not support an outcome different from that reached by our

Court in Vandergrift and Alberts. Indeed, in both of those cases, the district court

had explicitly indicated that treatment or another prison program would be of

benefit to the defendant. In contrast, the district court here made clear that any

efforts to rehabilitate Defendant appeared to be largely a dead end. Moreover, the

court had previously been made aware that a defendant sentenced to only 24-

months imprisonment would not be eligible for the prison’s intensive treatment

program. Thus, it is no surprise that the court never mentioned the availability of

treatment programs for Defendant while in prison, much less did it lengthen

Defendant’s sentence to permit his completion of such a program.7 It is very

difficult to understand how the majority can jibe its finding of an impact on




7
  As noted, the transcript from Defendant’s first revocation hearing demonstrates that the district judge understood a
24-month sentence was too short to permit participation in a drug treatment program.

                                                         27
Defendant’s substantial rights with our contrary holdings in Vandergrift and

Alberts.

      Moreover, the 24-month sentence here is the same term the district court

imposed for Defendant’s violation of his first supervised release when no Tapia

issue was articulated. Defendant fails to explain how a lesser sentence for a second

revocation would make any sense when the violations here were substantially like

those that led to Defendant’s first supervised release revocation. If anything, that

the violations here continued a “complete pattern of irresponsibility”, occurred in a

shorter period, and involved another serious drug offense while Defendant was

absconding on a bond, provide even greater justification for imposing the

maximum 24-month sentence on a second revocation than on the first supervised

release revocation. Based on the entire record, I have no doubt that the Tapia

error, if any, constituted only a minor consideration in sentencing.

      Thus, I am unpersuaded by Defendant’s argument that the district court’s

concern for his rehabilitation “played a significant role in sentencing him to the

statutory maximum of 24 months imprisonment.” That argument rests on the

incorrect notion that any mention of Defendant’s drug offenses by the district court

implicated Defendant’s addiction and need for rehabilitation. For instance,

Defendant states: “this Court need not speculate about the district court’s ‘primary

considerations’ because the court said itself: ‘I mean, to me, the thing that drives


                                         28
everything here is the drugs, that’s the concern, my big concern.’” But that

concern does not implicate Defendant’s rehabilitation. Rather, the district court

explained that an above-guideline sentence was warranted because “[i]t’s clear to

me that what’s going to happen when [Defendant] is out on the streets again is he’s

going to be using drugs again and he could be a danger to people in the

community, particularly if he gets in an automobile.” That followed the district

court’s recitation of Defendant’s “extensive criminal history that includes

possession of a controlled substance, including Ecstasy, heroin and marijuana,

underage possession of alcohol, an open container violation, driving on a

suspended license, [and] possession and use of drug-related objects, . . .” and a

detailed description of Defendant’s recent methamphetamine offense. Thus, rather

than reflecting a concern for Defendant’s rehabilitative needs, the district court’s

“big concern” about “drugs” refers to Defendant’s repeated drug offenses and his

propensity to harm the community by doing drugs “on the streets.” The district

court cited that concern as justification for Defendant’s 24-month sentence in the

very paragraph in which the court announced the sentence.

      Even if it were unclear whether the district court’s “big concern” about

“drugs” referred to Defendant’s addiction and need for rehabilitation, rather than

drug offenses that harm the community, Defendant would not prevail. Where

uncertainty exists “the burden is the decisive factor in the third prong of the plain


                                          29
error test, and the burden is on the defendant.” Rodriguez, 398 F.3d at 1300. “The

Supreme Court has explained that the ‘burden should not be too easy,’ because the

prejudice standard ‘should enforce the policies that underpin Rule 52(b) generally,

to encourage timely objections and reduce wasteful reversals by demanding

strenuous exertion to get relief for unpreserved error.’” Id. at 1299, quoting United

States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Here, Defendant failed to

make a timely objection at sentencing and failed on appeal to carry his heavy

burden of showing that any concern for his rehabilitative needs affected the length

of his sentence.

      Accordingly, I find no procedural error, and I respectfully dissent from the

majority’s decision to the contrary.




                                         30
