DENNIS, Circuit Judge:
Corey P. Wooley ("Wooley") was sentenced to thirty months of imprisonment, following the revocation of a prior probation sentence. During the revocation hearing, the sentencing court noted its belief that Wooley suffers from a cocaine problem, repeatedly referenced his need for treatment, and explicitly indicated that the sentence was imposed for the purpose of resolving Wooley's untreated drug problem. The district court committed clear error by violating the Supreme Court's mandate in Tapia v. United States, which prohibits a sentencing court from "imposing or lengthening a prison sentence to ... promote rehabilitation." ___ U.S. ___, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). Accordingly, we VACATE the sentence and REMAND to the district court for resentencing in light of this opinion.
In November of 2009, Wooley pleaded guilty to the unlawful use of a United States Coast Guard Merchant Marine Officer License, in violation of 18 U.S.C. § 2197. Wooley was sentenced to five years of probation, with six months of home confinement. The probation order required Wooley to submit to random urinalysis drug testing by a probation officer, pay for his electronic monitoring system, and attend a "life skills" program.
In September of 2012, the government sought to revoke Wooley's probation based on various instances of noncompliance. Specifically, the government's petition alleged that Wooley had failed to pay his location-monitoring fee, submitted a diluted urine specimen, failed to report for urinalysis drug testing on eleven occasions, failed to submit several monthly supervision reports, missed two scheduled office visits, and, despite advance notice, was not present during scheduled home visits. The petition was subsequently amended to include an allegation that Wooley had failed to advise his probation officer that in January of 2012, he pleaded guilty to the misdemeanor offense of misrepresentation of name, age, and address.
On October 17, 2012, a probation-revocation hearing was held. Wooley, represented by counsel, declined to contest the allegations of noncompliance but asked the court to continue his probation, explaining that the violations were a result of communication problems with his probation officer. The district court noted that based on a criminal-history category of I, and the Grade C probation violations, the recommended sentence under the United States Sentencing Guidelines is three to nine months. See U.S.S.G. § 7B1.4. The court expressed its concern with "not necessarily each violation but the cumulative effect of so many violations" and questioned whether Wooley was suffering from a "drug illness ... that he is not getting treated for." Wooley denied any substance-abuse problems and insisted that the violations were a result of communication issues and misunderstandings, explaining that he was out of town for some of the missed appointments.
After briefly inquiring into Wooley's work history and family ties, the court then stated:
The district court then "recommend[ed] highly" to the Bureau of Prisons ("BOP") that Wooley be provided counseling and testing for consideration of treatment for substance abuse issues, referring specifically to a boot-camp program and a 500-hour program. The district court advised Wooley that "[i]f it is offered to you take it. [These rehabilitative programs] not only give[] you help, but [they] also perhaps get you out of custody sooner than you otherwise would be out on." After this discussion, Wooley's counsel objected to the sentence, explaining that "in light of the fact that this is a significant variance from the guideline range that was applicable in this case ... we would object to the upward variance in this case on that basis. And as required by the current Fifth Circuit case law, we have to object on the grounds that it is an unreasonable application of 18 United States Code, Section 3553(a) and those sentencing factors." In response, the district court said:
The district court overruled counsel's objections and sentenced Wooley to 30 months imprisonment — over three times the maximum recommended sentence of nine months.
On appeal, Wooley contends that the district court committed reversible error by improperly basing his above-guidelines prison sentence upon its belief that Wooley was in need of drug treatment, in clear violation of 18 U.S.C. § 3582(a) and the Supreme Court's decision in Tapia v. United States, ___ U.S. ___, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). Wooley argues that because counsel objected to the upward variance, the issue was preserved and we should review under the "plainly unreasonable"
In response, the government argues that the district court's sentence was properly based upon Wooley's need for deterrence, the seriousness of the probation violations, the court's prior leniency with the defendant, and the multiple instances of noncompliance. The government argues that the concern about Wooley's need for rehabilitation was not the "dominant" or "primary" factor in sentencing, and the court therefore did not commit Tapia error. The government contends that Wooley's counsel's general objection to the upward variance did not sufficiently preserve the issue and that plain error review applies. The government concedes that if this panel were to find that the district court committed Tapia error, that it would be clear or obvious but asserts that any error did not affect Wooley's substantial rights because the sentence was based on proper justifications.
When imposing a sentence of imprisonment, a federal court must consider the statutory factors enumerated in 18 U.S.C. § 3553(a)
In Tapia, the Supreme Court held that § "3582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation." 131 S.Ct. at 2391. The Tapia Court looked to both 18 U.S.C. § 3582(a) as well as 28 U.S.C. § 994(k), which directs the Sentencing Commission to ensure that "the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant." Id. at 2388 (quoting 28 U.S.C. § 994(k)). The Court explained that while these statutes prohibit a sentencing court from choosing a sentence of imprisonment in lieu of probation or lengthening a prison term for rehabilitative purposes, a court does not commit error by merely "discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs." Id. at 2391. A court may therefore "urge the BOP to place an offender in a prison treatment program." Id. In Tapia, the sentencing court explicitly stated that the defendant "needed ... the 500 Hour Drug Program" and that the "`number one' thing is the need to provide treatment." Id. at 2392-93. The Supreme Court vacated the defendant's sentence, reasoning that the district court's statements reflected a possibility that the sentence was calculated with the intent of "ensur[ing] that [the defendant] receive certain rehabilitative services. And that a sentencing court may not do." Id. at 2393.
We have applied the Tapia rule in the context of revocation hearings. See United States v. Garza, 706 F.3d 655 (5th Cir. 2013).
Garza and Escalante-Reyes each involved a clear violation of Tapia, in that the respective sentencing courts relied nearly exclusively on the defendant's need for rehabilitation in imposing and justifying a prison sentence. However, the concern for the defendant's rehabilitation does not need to be the only justification (as in Garza) or one of two justifications (as in Escalante-Reyes) for a district court to violate the Supreme Court's mandate in Tapia. Rather, we have found Tapia error when a sentencing court expressly relied on the 18 U.S.C. § 3553(a) sentencing factors if, despite the other proper justifications, the erroneous consideration of the need for rehabilitation is a "dominant" factor in the court's mind at sentencing. See United States v. Culbertson, 712 F.3d 235, 243 (5th Cir.2013).
In Culbertson, the district court imposed a sentence three times the Guidelines recommendation, explaining that "[w]hat I'm trying to do here is give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds.... I think you need that time to get yourself stabilized." Id. at 238. We vacated the sentence under plain error review, finding that although the sentencing court expressly considered the 18 U.S.C. § 3553(a) factors, the repeated emphasis on the defendant's need for rehabilitation and stability reveal "that a `dominant factor' in imposing the sentence was Culbertson's need for rehabilitation." Id. at 242 (citing Garza, 706 F.3d at 662). Noting that the sentence was three times higher than the Guidelines recommendation, we found that this clear and obvious error substantially affected the defendant's rights and that the district court's multiple reiterations of its belief that Culbertson needed prison to stabilize himself "affected the `fairness, integrity, or public reputation' of the sentencing proceeding," warranting reversal of the sentence. Id, at 244.
The court in Culbertson relied on our earlier decision in Broussard, which similarly found Tapia error when the district court "explicitly considered, in both selecting
Comparatively, we have declined to find Tapia error when the district court merely advises the defendant of rehabilitative opportunities or expresses its hope that the defendant will take advantage of such rehabilitative programming while imprisoned. See United States v. Receskey, 699 F.3d 807, 808 (5th Cir.2012) (finding that district court's mere discussion that it "would hope" defendant would participate in rehabilitative programming was insufficient to create Tapia error, particularly given the court's consideration of the factors under 18 U.S.C. § 3553(a)). Significantly, in Receskey, before sentencing the defendant, the district court expressly stated that a within-Guidelines sentence would not "begin to adequately and appropriately address" the proper statutory factors. Id. at 808. The district court then made a recommendation to the BOP for rehabilitative programming after imposing the prison sentence. Id. We explained that "[o]nly after [applying the statutory factors and imposing the sentence] did the court discuss opportunities for rehabilitation and urge Receskey to take advantage of them.... [The court's] concern over rehabilitation may have been an `additional justification,' but it was not a `dominant' factor in the court's analysis." Id. at 812. Likewise, in United States v. Tatum, 512 Fed.Appx. 402 (5th Cir.2013) (unpublished), we reasoned that the district court's singular reference to the defendant's potential opportunity to participate in rehabilitative counseling services, alongside the court's proper consideration of deterrence and the protection of the public, did not violate Tapia. Id. at 402 (upholding the sentence because a "review of the record convince[d] [the court] that the district court did not impose or lengthen Tatum's eighteen-month sentence on [the] basis [of the need for rehabilitative services]").
Thus, this circuit's relevant precedent distinguishes isolated references to rehabilitative opportunities from a district court's repeated emphasis on a defendant's perceived need for treatment. Additionally, as noted supra we have repeatedly found that a court's express reference to the proper statutory factors does not necessarily cure Tapia error if a review of the record reveals that the court's consideration of the defendant's need for rehabilitation was the "dominant factor" in the court's imposition of the sentence. See, e.g., Garza, 706 F.3d at 660.
Here, the district court repeatedly expressed concern regarding Wooley's need for treatment and explicitly stated that treatment for his perceived drug problem was a purpose for sentencing Wooley to 30 months imprisonment — a prison sentence three times longer than the maximum recommended sentence under the Guidelines. The court explained: "I know you don't think you have a problem, but.... I think... that you need help for I think a cocaine problem. So in that regard the Court is going to sentence you to 30 months imprisonment for purposes of getting you that help." Further, after referencing Wooley's urinalysis sample that contained trace amounts of cocaine, and stating that there is "something else ... going on here," the court noted its desire that "this particular matter will be put to
The government argues that the record merely reflects the court's concern for Wooley's needs and the court's statements amount to no more than an "admonition to him that he may be eligible for assistance for drug issues in prison." Viewed in isolation, some of the district court's statements appear to be a mere recommendation to the BOP that Wooley participate in available programming. For example, the district court recommended to the BOP that, during his incarceration, Wooley be provided counseling and testing for substance-abuse consideration, and be considered for participation in a bootcamp program. These recommendations for treatment, standing alone, are not problematic and are explicitly permitted by the relevant caselaw. See, e.g., Tapia, 131 S.Ct. at 2392 ("[A] court may urge the BOP to place an offender in a prison treatment program."); see also Receskey, 699 F.3d at 812 (finding that the district court's comment that it "would hope" defendant would participate in rehabilitative programming was insufficient to create Tapia error). The sentencing court, here, however, went well beyond a mere recommendation to the BOP or discussion of concern for the defendant. Rather, the court explicitly stated that it was sentencing Wooley for "purposes" of getting him the help he needs and so his untreated substance-abuse problem could be "put to rest." As such, the district court violated the mandate of Tapia, because its primary or "dominant" concern was Wooley's need for drug treatment. Like the district court in Escalante-Reyes, the sentencing court here repeatedly — both before and after articulating the sentence — expressed its belief that Wooley's need for drug treatment should be addressed by an imposition of a sentence of imprisonment. Escalante-Reyes, 689 F.3d at 425 (reversing for Tapia error when the sentencing court's "repeated emphasis on the need for anger management treatment in prison was sufficient to undermine ... confidence that the district court would have imposed the same sentence absent the error") (emphasis added).
The government additionally argues that the court's reference to the statutory sentencing factors forecloses a finding of Tapia error, suggesting that a district court violates Tapia only when the defendant's rehabilitative needs are the court's sole consideration in imposing the sentence. In so arguing, the government appears to encourage this court to write an additional requirement into the standard for establishing Tapia error. As explained supra, we have held that Tapia error occurs when rehabilitation is a dominant factor in the court's sentencing decision, and we have never required the appellant to establish that the court's improper reliance on rehabilitation considerations was the sole factor in sentencing. Rather, both this court and the Supreme Court have reversed based on Tapia error even when the sentencing court relies on other, proper
Because the record reflects that Wooley's need for drug treatment was the dominant factor in imposing a sentence three times above the recommended Guidelines, we conclude that the district court committed a Tapia error.
The parties dispute whether Wooley's counsel's objection to the sentence during the revocation hearing sufficiently preserved the issue on appeal and thus whether this court should apply the "plainly unreasonable" or "plain error" standard of review. "To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction." United States v. Neal, 578 F.3d 270, 272 (5th Cir.2009) (citing United States v. Ocana, 204 F.3d 585, 589 (5th Cir.2000)). Here, defense counsel's general objection to the unreasonableness of the above-Guidelines sentence did not sufficiently alert the sentencing court to the alleged Tapia error, as required by this circuit's precedent. See, e.g., United States v. Dunigan, 555 F.3d 501, 506 (5th Cir.2009) ("Although Dunigan challenged reasonableness in district court, he did not do so on this specific ground. Where the defendant has failed to object on specific grounds to the reasonableness of his sentence, thereby denying the court the opportunity to identify and correct any errors, we review for plain error.") (internal quotation marks omitted); see also United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.2007) ("Were a generalized request for a sentence within the Guidelines sufficient, a district court would not be given an opportunity to clarify its reasoning or correct any potential errors in its understanding of the law at sentencing, and its efforts to reach a correct judgment could be nullified on appeal.... Had the defense objected at sentencing, the court easily could have clarified or, if necessary, corrected itself.... Because it was not on notice of the arguments Hernandez now presents, however, it was not given that opportunity. We therefore review the case only for plain error.") (citations omitted).
Moreover, on review of an alleged Tapia error, we have only applied the "plainly unreasonable" standard when counsel makes a contemporaneous, specific objection to the district court's consideration of the defendant's need for rehabilitation. See, e.g., Receskey, 699 F.3d at 809 (applying the plainly unreasonable standard when "counsel objected to the sentence as unreasonable, particularly to the extent if the sentence is premised on the availability of rehabilitation programs in prison") (emphasis added) (internal quotation marks omitted). By comparison, we have applied the plain error standard of review when counsel objected to the sentence as unreasonable, without specifically indicating the alleged Tapia error. See Culbertson, 712 F.3d at 243 (finding that defense counsel's objection to the "`substantive and procedural reasonableness of the sentence'" was insufficiently specific to preserve the Tapia error asserted on appeal); Escalante-Reyes, 689 F.3d at 423 (applying plain error review of a Tapia error when defendant's attorney "objected that the district court did not adequately explain its reasons for the length of the sentence"); United States v. Tatum, 512 Fed.Appx. 402, 402 (5th Cir.2013) (applying
Here, Wooley's counsel objected to the imposition of the above-Guidelines sentence, "in light of the fact that th[e sentence] is a significant variance from the guideline range that was applicable in this case ... on the grounds that it is an unreasonable application of 18 United States Code, Section 3553(a) and those sentencing factors." Other than denying that Wooley's noncompliance was due to a substance-abuse problem, counsel did not indicate any objection to the district court's consideration of Wooley's perceived need for treatment. Wooley argues that defense counsel's objection sufficiently preserved the Tapia issue because counsel objected to the unreasonable application of the § 3553(a) factors, and an appellate court's analysis of the substantive reasonableness of a sentence under § 3553(a) includes whether the court considered an improper factor — such as the defendant's need for rehabilitation. United States v. Smith, 440 F.3d 704, 708 (5th Cir.2006) ("A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.") (emphasis added). Wooley contends that his counsel's objection to the "significant variance" and "unreasonable application" of 18 U.S.C. § 3553(a) therefore preserved the Tapia issue because the objection implicitly included an argument that the court gave "significant weight to an ... improper factor."
Our review of the record reveals that the sentencing court was aware only that Wooley was objecting generally to the court's upward variance and the length of his above-Guidelines sentence, but was not alerted to his much more specific objection now asserted on appeal. Wooley's counsel's general objection to the reasonableness of his sentence resembles the defense counsel's general objection in Culbertson, and is not nearly as specific as counsel's objection to the court's consideration of the defendant's rehabilitative needs in Receskey, and therefore is insufficient to preserve the error on appeal.
Because Wooley's counsel failed to object to the specific Tapia error, but instead vaguely objected to the upward variance as an unreasonable application of the 18 U.S.C. § 3553(a) factors, we review the district court's sentencing decision under the plain error standard of review.
On plain error review, we retain discretion to reverse a sentencing court's error if we find that:
Escalante-Reyes, 689 F.3d at 419 (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). The four-step plain error test is "much more stringent and difficult than the standard of review that would otherwise
The first prong of our inquiry under plain error review was addressed supra, in which we found that the court "deviat[ed] from a legal rule" by imposing a thirty-month prison sentence based primarily upon Wooley's need for drug treatment. The second prong is likewise met because Tapia was settled law both at the time of sentencing and, importantly, at the time of this appeal. Thus, the error the sentencing court committed was clear and obvious.
The parties dispute the third prong of the plain error inquiry — whether the district court's error affected Wooley's substantial rights. This court in Broussard, analyzing the third prong of plain error review, looked to the district court's express consideration of the defendant's need for rehabilitative services and the court's significant increase from the Guidelines recommended range to conclude that the court's Tapia error affected the defendant's substantial rights. See Broussard, 669 F.3d at 555. Here, the court sentenced Wooley to over three times the maximum recommended sentence under the Guidelines. Like in Broussard, the sentencing court announced other justifications for its sentence, including the need for deterrence and the need to impress upon Wooley the seriousness of his violations. The government points to these proper justifications to argue that even if there were Tapia error, Wooley's rights were not substantially affected by it.
Despite reference to these factors, the sentencing court repeatedly emphasized Wooley's "desperate[]" need for treatment and stated explicitly that the "purpose[]" of the sentence was to allow Wooley to get help for a cocaine problem. We conclude that Wooley's rights were substantially affected when the sentencing court ordered a significant upward variance, over three times the length of the Guidelines's recommendation, based predominantly upon its concern for his perceived substance-abuse problem.
Lastly, we retain discretion to reverse a sentence if the first three prongs of the plain error inquiry are met and if we find that the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Escalante-Reyes, 689 F.3d at 419 (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (2009)). This circuit has repeatedly emphasized that even when we find that the first three factors have been established, this fourth factor is not "automatically satisfied." Garza, 706 F.3d at 663. Rather, we should reserve our discretion for "`those circumstances in which a miscarriage of justice would otherwise result.'" Escalante-Reyes, 689 F.3d at 425 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We have previously held that the exercise of discretion to reverse a sentence is warranted when a district court's Tapia error results in the imposition of a sentence "three times in excess of [the] advisory range." Culbertson, 712 F.3d at 244. Because the district court improperly considered Wooley's perceived rehabilitation needs in imposing a prison term over three times greater than the Guidelines maximum recommendation, the failure to reverse this decision would negatively affect that "fairness, integrity or public reputation" of the sentencing proceeding and result in a miscarriage of justice because it would permit a district court to impose a substantial upward variance based upon a factor that has been clearly prohibited by the Supreme Court and Congress. Tapia,
The sentencing court committed a legal error when it based Wooley's above-Guidelines sentence upon his perceived need for drug treatment. The district court's error was clear or obvious, the error affected Wooley's substantial rights, and affected the fairness and integrity of the proceedings. Accordingly, we VACATE the sentence and REMAND to the district court for resentencing in light of this opinion.