                Case: 17-12495    Date Filed: 01/11/2018   Page: 1 of 8


                                                                [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 17-12495
                               Non-Argument Calendar
                             ________________________

                     D.C. Docket No. 8:12-cr-00288-EAK-MAP-4


UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

versus

ALEX CARRAHER,

                                                    Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                  (January 11, 2018)

Before JORDAN, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:

         Alex Carraher appeals his 24-month sentence for violating the terms of his

supervised release, in violation of 18 U.S.C. § 3583(g), after being convicted of
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conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 846. After careful review, we agree with Mr. Carraher that

the district court plainly erred by considering drug rehabilitation when determining

the length of his sentence. For that reason, we vacate and remand for resentencing.

                                         I

      Mr. Carraher and seventeen other defendants were involved in a conspiracy

to distribute oxycodone. He pled guilty in 2013 to one count of conspiracy with

intent to distribute and, on November 13, 2013, was sentenced to 70 months’

imprisonment to be followed by 36 months’ supervised release. He received a

reduction of his sentence due to an amendment to the sentencing guidelines’

threshold drug amounts and, on January 15, 2016, began his term of supervised

release.

      In the following months, Mr. Carraher violated the terms of his supervised

release several times. In November of 2016, after admitting to the first five

violations of his supervised release, the district court (upon an agreement with the

government) postponed adjudication so Mr. Carraher could complete a substance

abuse treatment program in Panama City, Florida.

      Unfortunately, Mr. Carraher continued to violate the terms of his supervised

release. On April 25, 2017, he was arrested for two new violations, positive tests

for marijuana and valium.      He again admitted to violating the terms of his


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supervised release on May 19, 2017. At the sentencing hearing, Mr. Carraher

explained that he has been diagnosed with hepatitis C and, as a result, could not

take medication for bipolar disorder. He stated that he “self-medicated” by using

marijuana and valium and knew he “messed up.” After allocution, the district

court said that Mr. Carraher “need[ed] to have someplace where [he] can have

assurance that [he is] going to get [his] hepatitis C treatment, and [he was] also

going to be away from all forms of drugs.” D.E. 833 at 11. The district court

continued that the “only place” it could put Mr. Carraher was “prison.” Id. Mr.

Carraher’s counsel requested a sentence of “a year and a day,” but the district court

responded “I can’t do that he’s got to get treatment.” Id. at 13. After that

comment, the district court imposed the statutory maximum term of 24 months’

imprisonment.

                                              II

       On appeal, Mr. Carraher contends the district court erred by considering

rehabilitation in imposing or lengthening his sentence. In Tapia v. United States,

564 U.S. 319, 332 (2011), the Supreme Court prohibited such consideration,

holding that “[§] 3582(a) precludes sentencing courts from imposing or

lengthening a prison term to promote an offender’s rehabilitation.” 1



1
  Tapia’s limitation applies only to sentences of imprisonment. “Sentencing courts are permitted
to consider a defendant’s rehabilitative needs when imposing sentences of probation or
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       Mr. Carraher did not make an objection to the consideration of rehabilitation

at the sentencing hearing. Instead, his counsel objected “procedurally—it exceeds

the guidelines 14 months” and “substantively” because it was “an excessive

sentence in terms of the role behavior.” D.E. 833 at 15. This did not properly

preserve his Tapia-based reasonableness objection. See United States v. Massey,

443 F.3d 814, 819 (2006) (“When the statement is not clear enough to inform the

district court of the legal basis for the objection, we have held that the objection is

not properly preserved.”). Therefore, we review only for plain error. See United

States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).

       We may correct a plain error only when (1) an error has occurred, (2) the

error was plain, (3) the error affected substantial rights, and (4) the error seriously

affected the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Gonzalez, 834 F.3d 1206, 1218 (11th Cir. 2016).

                                            III

       We have held that “a district court errs when it considers rehabilitation when

imposing or lengthening a sentence of imprisonment.” Vandergrift, 754 F.3d at

1310 (emphasis original). That is what happened here. The district court explicitly

noted that prison was the place where Mr. Carraher could get Hepatitis C treatment




supervised release.” United States v. Alberts, 859 F.3d 979, 985 n.3 (11th Cir. 2017) (citing
Tapia, 564 U.S. at 330).
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and stay “away from all forms of drugs.” Then, to justify a sentence at the

statutory maximum, the court explained that a lower sentence of one year and a

day was improper because “he’s got to get treatment.”                       Although, as the

government correctly notes, 18 U.S.C. § 3583(g) requires that a sentence of

imprisonment be imposed, it appears to us from the sentencing transcript that Mr.

Carraher’s term was lengthened because of the improper consideration of

rehabilitation. See Vandergrift, 754 F.3d at 1310 (transcript reflected improper

consideration of rehabilitation where the district court considered how prison

would benefit the defendant and save his life). 2

       We reiterate, as did the Supreme Court, that “[a] court commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of

specific treatment or training programs. To the contrary, 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. At Mr. Carraher’s original 2013 sentencing

proceeding, the district court—quite commendably and, we note, appropriately—

did just that. For example, it discussed the benefits offered by the Bureau of

Prisons’ electrical vocational program, mental health counseling, and 500-hour


2
  The government contends that Tapia and Vandergrift do not apply to violations of supervised
release, citing our decision in United States v. Brown, where we stated that “a court may consider
a defendant’s rehabilitative needs when imposing a specific incarcerated term following
revocation of supervised release.” 224 F.3d 1237, 1240 (11th Cir. 2000). The government’s
argument ignores that we have previously noted that this holding in Brown was abrogated by
Tapia. See Vandergrift, 754 F.3d at 1309.
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substance abuse program. See also Tapia, 564 U.S. at 334 (“So the sentencing

court [ ] did nothing wrong—and probably something very right—in trying to get

Tapia into an effective drug treatment program.”).

      The contrast between that appropriate discussion in 2013 and the instant

sentencing proceeding on May 19, 2017 illustrates the Tapia error requiring

reversal. In 2013, the district court clearly considered Mr. Carraher’s criminal

history, offense conduct, and other § 3553(a) factors in determining sentence

length. Independent from determining sentence length, the district court discussed

the substance abuse, mental health, and vocational programs available in prison

with Mr. Carraher. The 2017 sentencing transcript reflects that, this time, “the

court may have done more … it may have selected the length of the sentence to

ensure that” Mr. Carraher could get treatment—“[a]nd that a sentencing court may

not do.” Tapia, 564 U.S. at 334–35. See also United States v. Grant, 664 F.3d 276,

282 (9th Cir. 2011) (“When a judge imposes prison, he may wisely believe that it

will have rehabilitative benefits, but those benefits cannot be the reason for

imposing it.”).

      Mr. Carraher has met the first two prongs of plain-error review: the district

court clearly erred by considering the need for rehabilitation in imposing his

sentence and, after our decision in Vandergrift, such error was plain. See Alberts,

859 F.3d at 986 (“[B]ecause our binding precedent clearly precludes consideration


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of rehabilitation when crafting a prison sentence … that error was plain.”) (citing

Vandergrift, 754 F.3d at 1310).

                                          IV

      Having found error that was plain, we must determine whether that error

affected Mr. Carraher’s substantial rights and seriously affected the fairness,

integrity, or public reputation of judicial proceedings. “In order for an error to

have affected substantial rights, it must have affected the outcome of the district

court proceedings.” Vandergrift, 754 F.3d at 1312 (quotation marks omitted). In

Vandergrift, we explained that a Tapia error may not affect substantial rights

where consideration of “rehabilitation needs clearly constituted only a minor

fragment of the court’s reasoning.” Id. (quoting United States v. Bennett, 698 F.3d

194, 201 (4th Cir. 2012)).

      Unlike Vandergrift, where “[t]he court’s primary considerations were for the

safety of the public and deterring others from similar conduct,” id., the district

court’s primary reason for imposing a sentence at the 24-month statutory

maximum appears to have been to get Mr. Carraher treatment. In fact, “treatment”

was the only reason given when explaining why the guideline range sentence

requested by Mr. Carraher was inappropriate. And, unlike in Alberts, here, the

district court did not discuss the § 3553(a) factors nor “re-emphasize[] all of these

factors” before imposing sentence.      See 859 F.3d at 989.       Mr. Carraher has


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succeeded in his burden of establishing “a reasonable probability that, but for the

error, [his sentence] would have been different.” United States v. Henderson, 409

F.3d 1293, 1308 (11th Cir. 2005).

      We also conclude that Mr. Carraher has met the forth prong of the plain

error test. He has shown that the district court plainly erred by considering an

impermissible factor and that that improper consideration probably lengthened his

prison sentence. This error seriously affected the fairness and integrity of the

judicial proceedings in his case and we elect to use our discretion to correct it. Cf.

United States v. Shelton, 400 F.3d 1325, 1334 (11th Cir. 2005) (district court’s

treatment of sentencing guidelines as mandatory, contrary to Booker, seriously

affected the fairness, integrity, and public reputation of proceedings).

                                          V

      For the foregoing reasons, Mr. Carraher has demonstrated plain error by the

district court. We must vacate his sentence and remand for resentencing. We

express no opinion on the appropriate sentence on remand.

      VACATED AND REMANDED.




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