             Case: 16-15124    Date Filed: 04/03/2018   Page: 1 of 10


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-15124
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:15-cr-20904-MGC-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

RICHARD THOMAS MAGNOTTI,

                                                            Defendant-Appellant.
                          ________________________

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

                                 (April 3, 2018)

Before MARTIN, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Richard Thomas Magnotti appeals his 105-month prison sentence, which

was 48 months above his advisory guideline range. The district court considered

rehabilitation when it chose to lengthen Magnotti’s term of imprisonment. In so
              Case: 16-15124     Date Filed: 04/03/2018    Page: 2 of 10


doing, the district court violated the rule announced in Tapia v. United States, 564

U.S. 319, 131 S. Ct. 2382 (2011). Beyond that, the district court failed to properly

explain the basis for his sentence. Therefore, we vacate Magnotti’s sentence and

remand for a new sentencing hearing.

                                           I.

      Magnotti pled guilty to one count of bank robbery, in violation of 18 U.S.C.

§ 2113(a). In his sentencing memorandum, Magnotti raised his homelessness, his

solitude, his need for treatment, and his desire to be off of the streets as mitigating

in favor of a shorter sentence. Through a mitigation witness, his attorney, and his

own allocution, Magnotti asked the district court for mercy in light of this

background.

      The district court calculated Magnotti’s advisory guideline range as 46 to 57

months. The court then said that the 46 to 57 month range underrepresented

Magnotti’s criminal history and explained that she would therefore be “sentencing

[Magnotti] outside [the] advisory guideline range.”

      After announcing Magnotti’s sentence would be 98 months, the court

brought both the prosecutor and Magnotti’s lawyer to sidebar and said, “I think I

just said the wrong number. I think it would be 105, and I will tell you why. He’s

never going to adjust to the outside.” The court continued, “[a]t least with 105,

he’s going to have medical care and a—he has nobody on the outside. I don’t


                                           2
              Case: 16-15124     Date Filed: 04/03/2018   Page: 3 of 10


know what’s worse, should I let him die in prison or . . . .” In response, the

government noted that it “suggested 105 [months] instead of agreeing to the 84 []

precisely for the reasons that you just articulated.” The court then recognized that

Magnotti was “probably going to appeal me.” After concluding that “he’s

institutionalized,” the court told both attorneys “you know what I’m doing when I

go back on the record.”

      Just after the sidebar conference underlying Magnotti’s Tapia claim, the

court pronounced Magnotti’s 105-month sentence, and Magnotti “object[ed] . . . on

reasonableness grounds.” This appeal followed.

                                         II.

      On appeal, Magnotti argues that his sentence was procedurally and

substantively unreasonable. In reviewing the reasonableness of a sentence, we

must “first ensure that the district court committed no significant procedural error,

such as . . . failing to adequately explain the chosen sentence.” Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). If we do not find procedural

error, we must “then consider the substantive reasonableness of the sentence . . .

tak[ing] into account the totality of the circumstances, including the extent of any

variance from the Guidelines range.” Id.

      In Tapia, the Supreme Court held that a court “may not impose or lengthen a

prison sentence to enable an offender to complete a treatment program or


                                           3
              Case: 16-15124     Date Filed: 04/03/2018     Page: 4 of 10


otherwise to promote rehabilitation.” 564 U.S. at 335, 131 S. Ct. at 2393.

Applying the Supreme Court’s ruling in Tapia, this Court has declined to “limit

Tapia to situations where the district court either 1) specifically tailors the length of

a defendant’s sentence to permit completion of a rehabilitation program or 2)

makes rehabilitation the dominant factor in the sentencing court’s calculus.”

United States v. Vandergrift, 754 F.3d 1303, 1310 (11th Cir. 2014) (quotation

omitted). Indeed, in Vandergrift, this Court said that “Tapia prohibits any

consideration of rehabilitation when determining whether to impose or lengthen a

sentence of imprisonment.” Id. Tapia claims are claims of procedural error, as

they involve the consideration of an improper 18 U.S.C. § 3553(a) factor. See id.

at 1308.

                                          III.

      We review the reasonableness of a sentence for abuse of discretion when a

party preserves the issue. United States v. Irey, 612 F.3d 1160, 1189, 1223 n.44

(11th Cir. 2010) (en banc); United States v. Turner, 626 F.3d 566, 573 (11th Cir.

2010) (per curiam). The record indicates that Magnotti preserved his Tapia

objection.

      His objection arises out of a sidebar conversation between the district court

and counsel. Immediately after this sidebar conversation, the court pronounced

Magnotti’s sentence, and Magnotti “object[ed] . . . on reasonableness grounds.”


                                           4
              Case: 16-15124     Date Filed: 04/03/2018     Page: 5 of 10


Reasonableness challenges require us to determine whether the sentencing court

“committed any significant procedural error.” United States v. Cubero, 754 F.3d

888, 892 (11th Cir. 2014). As noted, Tapia claims are claims of procedural error,

asserting the consideration of an improper 18 U.S.C. § 3553(a) factor. See

Vandergrift, 754 F.3d at 1308. This Court has accepted similarly phrased

objections as sufficient to preserve challenges to a sentence’s procedural

reasonableness. See, e.g., United States v. Carpenter, 803 F.3d 1224, 1232–36

(11th Cir. 2015) (reviewing procedural and substantive reasonableness of a

sentence for abuse of discretion where the defendant objected “to the substantive

and procedural reasonableness of the sentence” (quotation omitted)).

      This Court has also found an objection to a sentence’s reasonableness

sufficient to preserve arguments made in a sentencing memorandum and raised

during the sentencing hearing. See Irey, 612 F.3d at 1223 n.44. In his sentencing

memorandum, Magnotti raised his homelessness, his solitude, his need for

treatment, and his desire to be off of the streets as mitigating in favor of a shorter

sentence. Through a mitigation witness, his attorney, and his own allocution,

Magnotti asked the district court for mercy in light of these facts. And Magnotti

made his objection just after the sidebar conference where the district court first

indicated it considered Magnotti’s rehabilitative needs in lengthening his sentence.

This record indicates that at the time the district court announced Magnotti’s


                                           5
              Case: 16-15124     Date Filed: 04/03/2018   Page: 6 of 10


sentence, his “objection [was] preserved and the grounds [were] clear to the

sentencing court.” United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995)

(holding that a general objection made after the district court pronounced sentence

sufficed to preserve arguments made before pronouncement where the reasons for

the objection were clear). The diligent district judge seemed to have been aware

that Magnotti had preserved this objection. Just after discussing Magnotti’s

rehabilitative needs, she recognized that Magnotti was “probably going to appeal

me.” Since Magnotti preserved his Tapia claim, we review it for abuse of

discretion.

                                         IV.

      The district court ran afoul of Tapia and Vandergrift. The court did say that

the 46 to 57 month guideline range underrepresented Magnotti’s criminal history

and used that finding to explain “sentencing [Magnotti] outside [the] advisory

guideline range.” But that is not all the court considered in issuing a sentence 48

months above the top end of Magnotti’s guideline range. After announcing that

Magnotti’s sentence would be 98 months, the court brought both the prosecutor

and Magnotti’s lawyer to sidebar and said, among other things, “[a]t least with

105, he’s going to have medical care and a—he has nobody on the outside.” The

court also referred to Magnotti as “institutionalized.”




                                          6
              Case: 16-15124      Date Filed: 04/03/2018   Page: 7 of 10


      Thus, the district court expressly considered Magnotti’s rehabilitation—his

need for medical care, his solitude, and his ability to adjust to the world outside

prison walls—in lengthening his prison sentence. In prison, the court explained,

Magnotti would “have medical care,” so extending his prison term for his lifetime

might be best. In this way, the district court did not heed this Court’s rule that “the

need for medical care may not be considered in fixing the length of imprisonment.”

United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998); see also Vandergrift,

754 F.3d at 1310–11 (citing Vautier). Noting that Magnotti would “never adjust to

the outside” and that “he ha[d] nobody on the outside,” the district court

lengthened Magnotti’s sentence on the theory that he should “remain in prison only

until he [would be] able to reenter society safely.” Tapia, 564 U.S. at 324, 131 S.

Ct. at 2386. We understand this to violate Tapia. See id.

      There is no doubt that the district court faced difficult facts in sentencing

Magnotti, and neither do we doubt that the district judge had good intentions.

Nonetheless, our read of the record shows that the district court lengthened

Magnotti’s term of incarceration so as to promote rehabilitation, and therefore

violated Tapia and Vandergrift.

      We likewise find that the district court did not properly explain its sentence

to Magnotti. First, the court did not “state in open court the reasons for its

imposition of the particular sentence,” but rather did so at a sidebar conference


                                           7
              Case: 16-15124     Date Filed: 04/03/2018    Page: 8 of 10


with counsel. 18 U.S.C. § 3553(c). Only because the court reporter recorded the

sidebar conversation can we identify the court’s procedural error and, therefore,

conduct meaningful appellate review. See Rita v. United States, 551 U.S. 338,

356, 127 S. Ct. 2456, 2468 (2007) (“The sentencing judge should set forth enough

to satisfy the appellate court that [s]he has considered the parties’ arguments and

has a reasoned basis for exercising h[er] own legal decisionmaking authority.”).

      Second, the only explanation Magnotti received was that the district court

would not apply his guideline range because of his criminal history. But we know

this is not all the court took into account in fashioning his sentence. And, at least

at the time, Magnotti could not have known the court’s actual considerations. This

left Magnotti functionally absent at a critical portion of his sentencing hearing,

such that he did not have an opportunity to challenge the district court’s rationale

for lengthening his sentence. See Kentucky v. Stincer, 482 U.S. 730, 745–47, 107

S. Ct. 2658, 2667–68 (1987) (reaffirming that a defendant has a due process right

to be present “at any stage of the criminal proceeding that is critical to its outcome

if his presence would contribute to the fairness of the procedure”); see also United

States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991) (“A defendant is entitled

to be present when his sentence is imposed . . . and this right to be present and

speak is constitutionally based.”).

                                          V.


                                           8
              Case: 16-15124    Date Filed: 04/03/2018   Page: 9 of 10


      The district court improperly considered rehabilitation in lengthening

Magnotti’s term of imprisonment and failed to properly explain to Magnotti the

reasons for his sentence. Thus, we vacate his sentence and remand for

resentencing. Magnotti’s remaining claims of procedural and substantive

unreasonableness are now moot. We do not address Magnotti’s ineffective

assistance of counsel claim because the record is not sufficiently developed at this

stage. See United States v. Tynsdale, 209 F.3d 1292, 1294 (11th Cir. 2000) (per

curiam).

      VACATED AND REMANDED.




                                          9
               Case: 16-15124        Date Filed: 04/03/2018       Page: 10 of 10


FAY, Circuit Judge, concurring in the result:

       In Tapia v. United States, 564 U.S. 319, 131 S. Ct. 2382 (2011), the

Supreme Court made it clear that 18 U.S.C. § 3582(a) prohibits federal sentencing

judges from imposing or lengthening a prison term in order to promote a

defendant’s rehabilitation. The majority finds a violation and remands for a new

sentencing. I have doubts that there was a violation.

       First, I doubt that defense counsel made an objection that would inform the

sentencing judge that she was violating Tapia.1 Consequently, the standard of

review would be plain error. Also, it seems reasonable to conclude that the District

Judge arrived at the 105-month sentence based upon Magnotti’s extensive criminal

background which included 24 separate events dating back to 1972. That is what

she said. However, at the sidebar conference with counsel, the Judge did mention

that as a consequence of her sentence, “he’s going to have medical care . . .” and

extending his prison term for his lifetime might be best.

       Since I am simply not certain whether these factors played a role in

determining the length of the sentence or rather are merely consequences that flow

from it, I concur in the result.




1
  The objection by defense counsel was: “Judge, I will object to the high end of the guideline. I
know my recommendation was 84 months, based on his criminal history. I will object to on
reasonableness grounds to the 105-month sentence.”
                                                10
