                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-4696


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

CYNTHIA LEMON,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:08-cr-00004-CMC-1)


Argued:   December 11, 2014                 Decided:    January 23, 2015


Before MOTZ and     THACKER,    Circuit     Judges,    and   DAVIS,   Senior
Circuit Judge.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Thacker and Senior Judge Davis joined.


ARGUED: Katherine E. Evatt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.      Winston
David Holliday, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.    ON BRIEF: William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

     Cynthia Lemon appeals her twenty-four month prison sentence

for several violations of her supervised release.                   She argues

that the district court committed plain error at her revocation

hearing by considering her rehabilitative needs as a factor in

determining   the    length   of   her    sentence.     For   the    following

reasons, we affirm.



                                     I.

     The parties do not dispute the facts of this case.                     In

2008, Lemon pleaded guilty to conspiracy to defraud the United

States by making, uttering, and possessing forged securities in

violation of 18 U.S.C. § 531 and § 371.                 The district court

sentenced her to thirty months in prison and three years of

supervised release.       Lemon’s supervised release term began in

February 2013.      Five months later, she was arrested for multiple

violations of her supervision, including several instances of

forging checks.

     Based on the nature of Lemon’s violations and her extensive

criminal   history,     the   supervised      release    violation      report

provided for a Guidelines range of 21-27 months’ imprisonment.

Factoring in the statutory maximum reduced that range to 21-24

months.    Lemon filed no objections to the report, and Lemon’s



                                     2
probation officer recommended a sentence of twenty-four months’

imprisonment.

     At    the    revocation       hearing,     the    Government      requested   a

sentence within the Guidelines range.                 Lemon’s counsel requested

a   sentence      of    time     served   and    continuation     on    supervised

release.         In    the    alternative,      Lemon’s     counsel    requested   a

sentence of one year and one day -- the same sentence the court

had imposed on Lemon’s co-defendant.

     The district court adopted the Government’s recommendation,

revoking    Lemon’s          supervised   release     and    sentencing    her     to

twenty-four months in prison.                 After announcing its sentence,

the court addressed Lemon and commented on both the basis for

its sentence and its concern about her mental health:

     I cannot imagine what was in your mind that led you to
     do this again, what you possibly could have been
     thinking that you could get away with this. To me it
     almost indicates some loss of contact with reality,
     that you could think you could possibly get away with
     this.   And to do it, you know, over and over again
     while you are on supervised release, after having
     served state time and federal time for the similar
     type [of] conduct.

     So, I don’t know whether you received any type of
     counseling when you were serving your time before, I
     don’t know whether you will be able to this time, but
     I hope maybe you can.     Because you have a serious
     emotional problem that would cause you to behave this
     way despite what it costs your children and your
     family.   It’s just so unfair to them, and you don’t
     seem to get it.

     So, I have considered the seriousness of the offense,
     the revocation offenses, I have considered that this

                                          3
      is a category six criminal history, continuing to re-
      offend. I have considered that you do have a serious
      family situation, but you aren’t really helping your
      family   situation, you   are  hurting   your  family
      situation.

      I have considered the need for the sentence to reflect
      the seriousness of the offense, promote respect for
      the law, provide just punishment, afford adequate
      deterrence.

      I have also considered specifically the need to
      protect the public from further crimes.      I believe
      that if you were out again you would be doing the same
      thing,   and   I   believe  that   you  need   further
      correctional treatment and some type of evaluation.
      I’m going to recommend some sort of mental health
      counseling while you are in the BOP this time to see
      if there is anything they can do for you to stop this
      recidivist behavior.

      Lemon   noted     a    timely     appeal    of    her    sentence,     and   her

counsel    filed   an   Anders     brief       that    identified    no    reversible

error.     After reviewing the record, we requested supplemental

briefing on whether the district court impermissibly sentenced

Lemon based on its perception that she needed rehabilitative

mental health treatment.



                                         II.

      The only error Lemon now alleges is that the district court

considered her rehabilitative needs when determining the length

of   her   revocation       sentence,    in    violation      of   Tapia   v.   United

States, 131 S. Ct. 2382 (2011).                As Lemon’s counsel acknowledged

at oral argument, this issue was not raised at the revocation


                                           4
hearing.         Therefore, we review for plain error.                          See United

States v. Olano, 507 U.S. 725, 731 (1993).                             To prevail, Lemon

must show that “an error (1) was made, (2) is plain (i.e., clear

or obvious), and (3) affects substantial rights.”                            United States

v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                        Even if Lemon makes

such       a   showing,    this    court     “may       exercise    its      discretion    to

correct the error only if it seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                                  Id.

(internal quotation marks and citation omitted).

                                              A.

       In      Tapia,     the   Supreme      Court      held    that    the    “Sentencing

Reform Act precludes federal courts from imposing or lengthening

a   prison       term     in    order   to    promote       a     criminal     defendant's

rehabilitation.”           131 S. Ct. at 2385.             In reaching that holding,

the    Court     distinguished      between        permissible         and   impermissible

discussions of rehabilitation at a sentencing hearing. 1                            On the

one    hand,      “[a]     court    commits        no     error    by     discussing      the

opportunities for rehabilitation within prison or the benefits

of specific treatment or training programs.”                            Id. at 2392.        A

court crosses the line, however, if it chooses to “impose or


       1
       Although the sentence at issue in Tapia was imposed after
the defendant’s initial conviction, we have held that Tapia
applies to revocation sentences. United States v. Bennett, 698
F.3d 194, 198 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506
(2013).


                                              5
lengthen a prison sentence to enable an offender to complete a

treatment program or otherwise to promote rehabilitation.”                                Id.

at 2393 (emphasis omitted).

     The underlying facts in Tapia illustrate this distinction.

There, the district court had indicated that it chose the length

of the defendant’s sentence at least in part so that she could

participate      in    a   particular    drug       treatment        program.       Id.    at

2385.      Specifically,        the     court        had   explained       that     “[t]he

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.”             Id. (alterations in original).                    The

Supreme Court found that these comments “suggest[ed] that the

court    may    have    calculated      the       length   of    Tapia’s    sentence       to

ensure    that    she      receive[d]    certain       rehabilitative           services.”

Id. at 2393 (emphasis omitted).                   The Court remanded the case to

the Ninth Circuit, which then held that the district court had

in fact committed plain error.                United States v. Tapia, 665 F.3d

1059, 1063 (9th Cir. 2011).

     We have emphasized that Tapia “does not prevent a district

court    from    considering      [rehabilitation]              in   the   course    of    a

sentencing proceeding.”           United States v. Alston, 722 F.3d 603,

609 (4th Cir.) (emphasis added), cert. denied, 134 S. Ct. 808

                                              6
(2013).       Instead, “Tapia stands for the proposition that a court

cannot        impose     or      lengthen       a   sentence”     to      further    a

rehabilitative purpose.            Id. (emphasis in original).

      Accordingly, in Alston we rejected the defendant’s claim of

Tapia        error     because     we    determined     that      the     defendant’s

rehabilitative needs did not affect the length of his sentence.

Id.     at    609.       All     the    district    court   had    said    regarding

rehabilitation          at     sentencing    was    that    its    sentence    would

“protect[] the public” from the defendant and “provide[] the

needed treatment of care in the most effective manner possible.”

Id. at 608.            We concluded that these comments indicated the

district court’s awareness of the rehabilitative benefits of the

defendant’s sentence, but they did not indicate that the court

chose or lengthened the sentence because of those benefits.                         Id.

at 608-09.

      In United States v. Bennett, 698 F.3d 194 (4th Cir. 2012),

by contrast, we concluded that the district court impermissibly

linked the defendant’s rehabilitative needs to the length of his

sentence.        The district court there noted that the defendant

“needs intensive substance abuse treatment.                    So, the court will

impose a sentence that provides ample time for that.”                         Id. at




                                            7
196-97.        We held that the court’s reliance on rehabilitative

needs in fashioning its sentence constituted error. 2                      Id. at 200.

       Alston and Bennett illustrate the line between permissible

comment upon a defendant’s rehabilitative needs and reliance on

those needs as a factor in selecting the length of his prison

sentence.          This distinction accords with the “broad consensus”

among our sister circuits that the presence of Tapia error turns

on    “whether      a    sentencing   court’s     reference     to     rehabilitative

needs [is]         causally     related    to   the    length   of   the    sentence.”

United States v. Del Valle-Rodriguez, 761 F.3d 171, 174 (1st

Cir.) (emphasis added) (citing cases), cert. denied, 135 S. Ct.

293 (2014).

       Such    a    causal     relationship     may    be   clearest    when,   as   in

Tapia,     a    sentencing       court    has    a     particular    rehabilitative

program in mind and uses the length of that program to justify

the    length       of   its   sentence.        See,    e.g.,   United      States   v.

Kubeczko, 660 F.3d 260, 261 (7th Cir. 2011) (finding clear Tapia

error where a district court explained that the defendant needed

“to be in one place longer than 18 months” to get mental health

treatment). Courts have also found Tapia violations when there

       2
        We then assumed that the error was plain, but we
ultimately concluded that it did not affect the defendant’s
substantial rights because it was the “brazen breach of trust
inherent in [the defendant’s] unlawful actions,” rather than his
rehabilitative   needs,  that   “drove   the   district  court’s
sentencing decision.” Bennett, 698 F.3d at 200.


                                            8
are less clear indicia that rehabilitation affected the length

of a defendant’s sentence.             The Eleventh Circuit has articulated

the    most    expansive      test,    finding         Tapia       error    whenever       “the

district court considers rehabilitation when crafting a sentence

of imprisonment.”           United States v. Vandergrift, 754 F.3d 1303,

1310       (11th    Cir.    2014)     (emphasis            in    original).          But     in

Vandergrift, as in Bennett, the sentencing court appeared to

“consider”         rehabilitation     with       an    eye      toward     lengthening      the

defendant’s sentence.           The court there explained that “I’ve also

got to consider what’s best for the defendant as a factor in the

equation” and observed that while the defendant “does not thrive

in    an    unstructured      environment,”           he    could    get    mental    health

treatment and “vocational training for a period of time in the

prison system.”            Id. at 1306 (emphasis added).                    No matter how

the test is articulated, we find it unlikely that a court has

committed Tapia error unless it has considered rehabilitation

for the specific purpose of imposing or lengthening a prison

sentence.

                                             B.

       With    these       considerations         in       mind,    we     hold   that      the

district court did not plainly err when it discussed Lemon’s

need for mental health counseling at sentencing.                             In arguing to

the contrary, Lemon attempts to align this case with Tapia and

Bennett.       See Appellant’s Supp. Br. 11-12.                     But in contrast to

                                             9
those cases, the district court here never suggested that its

concern for Lemon’s mental health was a factor in fixing the

length of her sentence.         In fact, the court’s uncertainty about

Lemon’s      counseling    options    suggests    rehabilitation        was   not   a

factor.       After observing that it did not “know whether [Lemon

had] received any type of counseling” during her previous prison

term, the district court commented that “I don’t know whether

you will be able to this time, but I hope maybe you can.”                       It is

difficult to conclude that the court lengthened Lemon’s sentence

so she could receive mental health treatment if the court was

unsure whether such treatment was even available. 3

       Moreover,     the   district     court    provided     a    rationale      for

Lemon’s sentence that did not rest, expressly or implicitly, on

her rehabilitative needs.            In particular, the court emphasized

that       Lemon   had   “continu[ed]    to     re-offend,”       and   there     was

therefore a “need to protect the public from further crimes.”

       3
       In addition to Tapia and Bennett, Lemon relies on two
unpublished cases for her argument that the district court
impermissibly   considered  her   rehabilitative  needs.    See
Appellant’s Supp. Br. 11 (citing United States v. Pate, 503 F.
App’x 216 (4th Cir. 2013) (unpublished per curiam) and United
States v. Olds, 464 F. App’x 117 (4th Cir. 2012) (unpublished
per curiam)).   Unpublished opinions have no precedential value
in this circuit.    See Hentosh v. Old Dominion Univ., 767 F.3d
413, 417 (4th Cir. 2014). Even if published, neither case would
aid Lemon’s cause; in both, the sentencing court issued an
above-Guidelines sentence for the express purpose of providing
the defendant drug treatment.    See Pate, 503 F. App’x at 217;
Olds, 464 F. App’x at 118.      These cases thus provide clear
examples of Tapia error; Lemon’s does not.


                                        10
These      considerations,   rather   than   concern    for   Lemon’s   mental

health, appear to have motivated the court’s decision to impose

its sentence.

       To be sure, the court could have more clearly separated its

discussion of Lemon’s rehabilitative needs from its discussion

of the factors that affected the length of her sentence.                As we

advised      in   Bennett,   “[b]y    keeping   these    distinct   concepts

distinct, courts will preclude the possibility of confusion on

appeal over whether a Tapia error has occurred.”                 698 F.3d at

199.       But even if we read ambiguity into the revocation hearing

transcript, it is certainly not “clear or obvious,” Lynn, 592

F.3d at 577, that the district court impermissibly considered

rehabilitation.       Accordingly, the court did not plainly err in

sentencing Lemon. 4




       4
       At oral argument, Lemon’s counsel pointed to the disparity
between the sentences imposed on Lemon and her co-defendant as
evidence that the district court must have considered her need
for rehabilitation.   Having reviewed the record in both cases,
we are not troubled by the twelve-month difference in the
revocation sentences.   Although both defendants faced the same
Guidelines range at their revocation hearings, Lemon had
committed several more supervised release violations.     And at
the time of their underlying offenses, Lemon had nearly twice
the criminal history points as her co-defendant.           It is
understandable that the district court would treat the two
defendants differently.


                                      11
                           III.

    For the foregoing reasons, the judgment of the district

court is

                                                  AFFIRMED.




                            12
