          United States Court of Appeals
                     For the First Circuit


No. 18-1107

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     ADRIÁN VÁZQUEZ-MÉNDEZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                       Howard, Chief Judge
                Boudin and Lynch, Circuit Judges.


     Eric Alexander Vos, Federal Public Defender, District of
Puerto Rico, Vivianne M. Marrero, Assistant Federal Public
Defender, Supervisor, Appeals Section, and Ivan Santos-Castaldo,
Research and Writing Specialist, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                        February 8, 2019
            BOUDIN, Circuit Judge. Adrián Vázquez-Méndez ("Vázquez")

pled guilty in federal district court in Puerto Rico in 2001 to

one count of conspiracy to distribute cocaine, 21 U.S.C. § 846,

and was sentenced to 168 months in prison followed by five years

of supervised release.      After serving more than eleven years in

prison, Vázquez began supervised release on December 28, 2012.

            Vázquez's period of supervised release--accompanied by

the common requirements that he refrain from unlawfully using

controlled    substances,   report   any   changes   in   address,   and

regularly check in with his probation officer--passed without

known incident until nearly the end.       But in 2017, the probation

officer reported several violations, including three positive drug

tests for marijuana and a failure to inform his probation officer

that he was living at a new location.

            Vázquez was also arrested on July 25, 2017, after his

girlfriend called the police to report a domestic dispute.       Police

also questioned him about a domestic-violence incident on August

30, 2017.    Neither incident resulted in criminal charges but a

restraining order was placed against him after the second incident,

pending a later hearing.    Vázquez also failed to timely report the

incidents to his probation officer as required by his supervised

release conditions.

            He also missed a scheduled drug-treatment program and a

drug-screening appointment.     In each instance Vázquez claimed he

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was at the hospital, first to attend to a wrist injury and later

because his girlfriend was experiencing complications with her

pregnancy; in at least one case the hospital records showed that

his time there did not conflict with his scheduled treatment

appointment.

            Eventually      the    government    filed   a    motion   to    revoke

Vázquez's    supervised      release.      Vázquez    admitted      that     he   had

violated the terms of his supervised release and declined an

evidentiary hearing.         The parties jointly recommended a sentence

of time served (forty-two days) with six months of supervised

release, including three months of home detention with electronic

monitoring.

            The       applicable   guidelines    range      was   three     to    nine

months, U.S.S.G. § 7B1.4(a), and the statutory maximum for a

revocation of supervised release arising out of a conviction for

a   Class    A    felony--here,      Vázquez's     original       conviction      for

conspiracy       to   distribute    cocaine--was     five    years,    18    U.S.C.

§ 3583(e)(3).

            The       district     judge   imposed    an      upward      variance,

sentencing Vázquez to two years' imprisonment plus two years of

supervised release.          The district court described the various

violations, set forth above, and concluded:

     Based on the nature and circumstances of the violations
     and characteristics of Mr. Vazquez, the Court will
     impose a sentence that reflects the seriousness of the

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     violations, promote respect for the law and compliance
     with the Court's orders, provide just punishment,
     adequate deterrence, and protect our community from
     further non-compliance behavior by Mr. Vazquez-Mendez.
     This may assist Mr. Vazquez-Mendez to work on his
     rehabilitation process and his reintegration into the
     community. Mr. Vazquez will be placed in a controlled
     environment where he will have the space to think,
     reflect and establish new goals for himself, to continue
     working on his rehabilitation plan once he is released
     from prison.

           On the spot Vázquez's counsel objected to the sentence

as substantively unreasonable and further objected to the judge's

mention of rehabilitation, arguing that lengthening a criminal

sentence to promote rehabilitation was impermissible.                   The court

rejected   the   objection,    adding    that      "two   times   he     was   very

aggressive with his consensual partner to the point where she had

to submit a complaint against him."

           On    appeal     Vázquez    argues      that   the     sentence       was

unreasonable and specifically that the judge erred in citing

rehabilitation needs and unproven domestic-violence allegations,

and that the sentence was substantively unreasonable.                  Whether all

three objections were fully preserved could be debated, but the

two specific claimed errors are patent and here presumptively

prejudicial.

           Under the Sentencing Reform Act a court may not impose

or lengthen a prison sentence in order to promote a defendant's

rehabilitation    or   to    enable     him   to    complete      in    prison     a

rehabilitative program.       Tapia v. United States, 564 U.S. 319, 335

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(2011).   The rule applies to resentencing after a revocation of

supervised release.   United States v. Molignaro, 649 F.3d 1, 5

(1st Cir. 2011).

          Cases subsequent to Tapia hold that where a general

desire to rehabilitate the defendant is thrown into a blender with

myriad other factors at sentencing, there is not necessarily

reversible error.   United States v. Del Valle-Rodríguez, 761 F.3d

171, 174-75 (1st Cir. 2014).    Reversal follows only where "the

record indicates that rehabilitative concerns were the driving

force behind, or a dominant factor in, the length of a sentence."

Id. at 175.

          But here the district court concluded its sentence by

saying that it "may assist Mr. Vazquez-Mendez to work on his

rehabilitation process and his reintegration into the community,"

and that time in prison would give him "the space to think, reflect

and establish new goals for himself, to continue working on his

rehabilitation plan once he is released from prison." When defense

counsel objected, the judge ended discussion: "I think that the

best way to try to straighten him up again is by imposing two years

of imprisonment."

          The district court's statements show that it did or

likely did rely on rehabilitation in fixing the sentence in a way

that is at odds with the statute as this circuit has read Tapia.



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The defense objection removes any need to consider whether the

judge's statements alone might amount to plain error.

            Whether   the   district     court   relied   on   the    unproven

domestic-violence allegations as a basis for its upward variant

sentence is doubtful, for the reference came after the sentence

had been set, but on remand the district will know that charges

without proof are not to be considered.          United States v. Marrero-

Pérez, No. 17-136, 2019 WL 324988 (1st Cir. Jan. 25, 2019).

            The district court was well within its authority to

consider   an   upward   adjustment      to   the   guidelines       sentence.

Vázquez's transgressions were multiple and that they happened near

the end of the supervised release term is hardly reassuring.              The

government's    agreement   to   a   time-served    sentence   may     suggest

merely that new felonies are properly its main priority.

           This circuit once regularly remanded cases like this one

to a different judge, but this occurs now only in very unusual

cases, United States v. Bryant, 643 F.3d 28, 35 (1st Cir. 2011),

and rightly so, for a new judge every time is wasteful; and the

conduct of judges in remanded matters bears out the faith that

citizens still retain in their judiciary.

           The sentence is vacated, and the matter remanded for

resentencing in accordance with this decision.

           It is so ordered.



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