                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0393n.06

                                         Case No. 18-5669

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Jul 31, 2019
 UNITED STATES OF AMERICA,                         )
                                                                           DEBORAH S. HUNT, Clerk
                                                   )
         Plaintiff-Appellee,                       )
                                                   )         ON APPEAL FROM THE UNITED
 v.                                                )         STATES DISTRICT COURT FOR
                                                   )         THE WESTERN DISTRICT OF
 ANTON YARBROUGH,                                  )         TENNESSEE
                                                   )
         Defendant-Appellant.                      )                       OPINION


BEFORE: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Anton Yarbrough appeals his 57-month sentence for

unlawfully possessing a firearm, as well as possession of controlled substances. He argues that the

district court improperly based his sentence on rehabilitative goals. We disagree and affirm.

       When a Memphis police officer pulled Yarbrough over for driving without a seatbelt, he

candidly admitted to carrying a bag of marijuana. But a couple of searches also revealed cocaine

and a firearm—the latter of which Yarbrough, a convicted felon, could not lawfully possess. He

eventually pleaded guilty to three charges arising from the stop: unlawful possession of a firearm

as a felon, possession of cocaine, and possession of marijuana. See 18 U.S.C. § 922(g)(1);

21 U.S.C. § 844(a).

       The Sentencing Guidelines recommended a prison term between 57 and 71 months,

followed by three years of supervised release. Yarbrough did not object to that calculation. In fact,

he did not object to anything—not in his written response to the Presentence Report nor during the
No. 18-5669, United States v. Yarbrough


hearing. He asked for leniency as the district court weighed the statutory factors. But he raised no

issue when the court explained why it ultimately selected a bottom-of-the-Guidelines sentence of

57 months imprisonment with three years of supervised release.

       Yarbrough now argues that the district court improperly relied on rehabilitative goals in

setting the length of his prison term. That’s not allowed under Tapia v. United States, 564 U.S.

319, 327 (2011). But it’s also not what happened in this case.1

       Tapia prohibits district courts from imposing (or lengthening) a prison term to promote

rehabilitation. See Tapia, 564 U.S. at 327. But that does not mean the sentencing judge cannot talk

about rehabilitation during the hearing. In fact, the opposite is true. Under 18 U.S.C. § 3553, judges

must consider whether to provide the defendant with “needed educational or vocational training,

medical care, or other correctional treatment,” 18 U.S.C. § 3553(a)(2)(D), which includes

rehabilitative drug treatment. See United States v. Krul, 774 F.3d 371, 374–75 (6th Cir. 2014)

(quoting Tapia, 564 U.S. at 334). Only when the judge relies on rehabilitative goals to set the

length of a prison term, such as by extending the time in prison to complete a drug-treatment

program, will the sentence violate Tapia. See Krul, 774 F.3d at 375 (“But the district court nowhere

in that paragraph suggested that the imprisonment was lengthened to permit participation in a

rehabilitative program.”). The judge did no such thing here.

       As Yarbrough points out, the judge below discussed Yarbrough’s long criminal history

involving drugs as part of his sentencing explanation. She considered Yarbrough’s need for




1
  The parties disagree over the standard of review to apply here. The Government argues we are
limited to plain error because Yarbrough did not object to the district court’s explanation of the
sentence. Yarbrough, for his part, admits he made no objection but argues that we should apply
our typical abuse-of-discretion review because the district court never asked the Bostic question.
We find it unnecessary to resolve this dispute because the district court did not err, plainly or
otherwise.


                                                  2
No. 18-5669, United States v. Yarbrough


educational training and medical care. And she explained that Yarbrough would have the

opportunity to participate in drug-treatment programs while in prison if he chose to do so. But the

judge never suggested that she would base Yarbrough’s prison term on his need for rehabilitation.

In fact, the judge made clear that the sentence was “all about deterrence,” so that it would

(hopefully) “convince [Yarbrough] not to make these decisions again.” Sentencing Tr. at 170–71,

R. 52, PageID 170–71. Drug treatment was available, but not part of the rationale for selecting the

57-month imprisonment. That’s permissible under Tapia and Krul.

       Yarbrough compares his case to United States v. Adams, 873 F.3d 512 (6th Cir. 2017).

There, we reversed a sentence that the district court imposed in violation of Tapia after the judge

suggested that the prison term was necessary for the defendant to reset from his drug addiction. Id.

at 523. The Government had argued that drug-treatment programs lasting less than a year were

ineffective because the brain needed at least 18 months of sobriety to properly “reset.” Id. at 519.

And when the defendant asked the judge about the length of his sentence, the judge invoked that

exact language and informed him that the sentence would allow him to “reset and maybe get

another . . . chance at remaining clean and sober.” Id. at 523. We held that this was improper under

Tapia because the sentencing judge plainly relied on rehabilitative goals to justify the prison term.

       Unlike Adams, the judge here did no such thing. She explained the drug-treatment

opportunities that Yarbrough might have during his sentence and encouraged him to participate.

But the judge selected the sentence for deterrence purposes, not so that Yarbrough could participate

in any rehabilitation efforts. Nothing in the record supports Yarbrough’s claim otherwise.

       We affirm.




                                                 3
