                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4334


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

     v.

PAUL G. HIMES, JR.,

               Defendant – Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:09-cr-00020-REM-JSK-1)


Submitted:   June 30, 2011                 Decided:   July 21, 2011


Before GREGORY, WYNN and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Katy J. Cimino, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL   PUBLIC  DEFENDER,   Clarksburg,   West  Virginia,  for
Appellant. Betsy C. Jividen, United States Attorney, Stephen D.
Warner, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Elkins, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Paul     G.      Himes,    Jr.    appeals           his    34-month       sentence

imposed after pleading guilty to one count of possession of a

stolen     firearm      in    violation       of        18   U.S.C.      §§     922(j)         and

924(a)(2).      Himes contends that the district court erred when it

considered the promotion of rehabilitation in sentencing him to

a term of imprisonment.                The Supreme Court recently held in

Tapia v. United States, 131 S. Ct. 2382 (2011), that a court may

not    impose      or     lengthen       a        prison        sentence        to        promote

rehabilitation.           Accordingly,        we       vacate    the    district          court’s

judgment and remand for resentencing consistent with Tapia.



                                             I.

            A federal grand jury indicted Himes on four counts of

possession of a stolen firearm in violation of 18 U.S.C. §§

922(j) and 924(a)(2).           According to the indictment, Himes stole

the   firearms     while      working    as       a    seasonal       employee       at    a   UPS

distribution       center      in     West    Virginia.               Himes     subsequently

executed a written plea agreement and entered a plea of guilty

to count one of the indictment.

             At sentencing, the district court calculated Himes’s

advisory     sentence        range    under       the     United       States     Sentencing

Guidelines as 21 to 27 months’ imprisonment.                           Himes argued that

the   district     court      should    vary          downward    from    the     Guidelines

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range or, at least, impose a sentence at the low end of the

range.    In response, the government suggested a sentence of more

than 30 months so that Himes would be eligible for the Bureau of

Prisons Residential Drug Abuse Program (“RDAP”).            The government

had previously raised this issue in its sentencing memorandum,

explaining that Himes would require a sentence greater than 30

months to ensure his eligibility for the RDAP.

           The   district   court    agreed    with   the   government    and

sentenced Himes to 34 months in prison.          The court explained its

decision to vary upward from the Guidelines range as follows:

       I have increased the sentence to 34 months so that
       after the time served and the time it takes to
       designate a facility, that Mr. Himes will have 30
       months or so remaining on his sentence.    I think the
       most important thing for this young man’s life is that
       he deal with and conquer his drug problem and I think
       that the only way this Court sees to accomplish that
       end, is for him to participate in the 500 hour
       residential drug abuse treatment program and that will
       provide enough time for him to be admitted to the
       program and complete that program.

J.A.   56–57.     The   district    court    stated   explicitly   that   it

selected the length of Himes’s sentence “based upon Defendant’s

need for the RDAP program.”        Id. 57.

           Himes objected to the sentence and timely appealed.

On appeal, Himes contends that the district court violated 18

U.S.C. § 3582(a) by imposing a term of imprisonment to promote

rehabilitation.     Specifically, Himes argues that the district



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court erred when it determined the length of his prison sentence

based on his eligibility for the RDAP.

              We placed the matter in abeyance pending the Supreme

Court’s      decision   in   Tapia.     In    light    of    the    Court’s     recent

holding, Himes filed a motion to remand, in which the government

joined, requesting that we vacate the district court’s judgment

and remand for resentencing.            For the reasons that follow, we

agree and grant the requested relief.



                                        II.

              We review a sentence imposed by the district court

under    a    deferential    abuse-of-discretion            standard.         Gall    v.

United States, 552 U.S. 38, 51 (2007).                 First, we “ensure that

the district court committed no significant procedural error.”

Id.       Procedural    errors     include     “failing       to     calculate       (or

improperly      calculating)      the   Guidelines       range,       treating       the

Guidelines      as   mandatory,    failing     to     consider      the   §    3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or    failing   to   adequately    explain     the    chosen       sentence.”        Id.

“If, and only if, we find the sentence procedurally reasonable

can we ‘consider the substantive reasonableness of the sentence

imposed under an abuse of discretion standard.’ ”                     United States

v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552

U.S. at 51).

                                        4
            Section     3582(a)    lists     the   factors   that     a    district

court should consider when imposing a term of imprisonment.                       In

relevant part, section 3582(a) states as follows:

     The court, in determining whether to impose a term of
     imprisonment, and, if a term of imprisonment is to be
     imposed, in determining the length of the term, shall
     consider the factors set forth in section 3553(a) to
     the extent that they are applicable, recognizing that
     imprisonment is not an appropriate means of promoting
     correction and rehabilitation.

18 U.S.C. § 3582(a) (emphasis added).

            Historically our sister circuits have split in their

interpretation of § 3582(a).           Several circuits have held that §

3582(a) bars courts from considering rehabilitation only when

imposing a term of imprisonment, and not when deciding on its

length.     E.g., United States v. Jimenez, 605 F.3d 415, 424 (6th

Cir. 2010); United States v. Duran, 37 F.3d 557, 561 (9th Cir.

1994).    Other courts have ruled that § 3582(a) bars a court from

either imposing or increasing a term of imprisonment to promote

rehabilitation.        E.g., United States v. Manzella, 475 F.3d 152,

160–61 (3d Cir. 2007).

            In Tapia, the Supreme Court resolved the split and

ruled that “a court may not impose or lengthen a prison sentence

to   enable    an    offender     to   complete    a   treatment      program     or

otherwise     to    promote   rehabilitation.”         Tapia,   131   S.    Ct.   at

2393.     In Tapia, the sentencing court noted that the defendant



                                         5
should serve a prison sentence long enough to qualify for the

RDAP.    Id. at 2385.            Specifically, the district court stated:

        The sentence has to be sufficient to provide needed
        correctional treatment, and here I think the needed
        correctional   treatment  is  the  500   Hour  Drug
        Program. . . .    I am going to impose a 51-month
        sentence, . . . and one of the factors that affects
        this is the need to provide treatment.     In other
        words, so she is in long enough to get the 500 Hour
        Drug Program, number one.

Id.       The    Supreme          Court    held       that       the     district     court’s

consideration         of     eligibility            for    the        RDAP   violated     the

prohibition      in    §    3582(a)       on    considering           rehabilitation      when

deciding whether to impose or lengthen a term of imprisonment.

Id. at 2393.

            In this case, as in Tapia, the district court erred by

considering Himes’s need for rehabilitation when it imposed a

term of imprisonment.               The district court focused on the need

for a prison sentence of sufficient length to ensure Himes’s

eligibility      for       the    RDAP    and   selected          a    sentence   above    the

Guidelines range to accomplish that purpose.                            It is clear after

Tapia that § 3582(a) prohibits such a consideration.

            Furthermore, based on our review of the record, we

have no trouble finding that the district court’s concern for

promoting Himes’s rehabilitation was the primary, if not the

sole,    basis    for       the     34-month        term     of       imprisonment.       The

government argued both prior to and during sentencing that the


                                                6
district court should impose a sentence of at least 30 months to

ensure Himes’s eligibility for the RDAP.                       During the sentencing

hearing, the district court focused on Himes’s need for the RDAP

in   calculating     its        upward      variance    sentence.         Finally,       the

district court made clear that rehabilitation was central to its

decision when it concluded, “So based upon Defendant’s need for

the RDAP program, I have imposed the sentence.”                       J.A. 57.

              Because    it     is    now    clear     that    §    3582(a)   “precludes

federal courts from imposing or lengthening a prison term in

order    to    promote      a      criminal       defendant’s        rehabilitation[,]”

Tapia,   131    S.   Ct.      at     2385,    we   vacate      the    judgment      of   the

district court and remand for a new sentencing hearing.                                   We

dispense      with   oral        argument      because        the    facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                   VACATED AND REMANDED




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