FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                      PUBLISH
                                                                           January 20, 2017
                       UNITED STATES COURT OF APPEALS
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
                             FOR THE TENTH CIRCUIT
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-1345

CHRISTOPHER WAYNE THORNTON,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:14-CR-00443-RBJ-1)
                       _________________________________

Ryan K. Melcher, Assistant Federal Public Defender (Virginia L. Grady, with him on the
briefs), Denver, Colorado, for Defendant-Appellant.

Karl L. Schock, Assistant United States Attorney (John F. Walsh, United States Attorney,
with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
                         _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
                 _________________________________

EBEL, Circuit Judge.
                         _________________________________

      Defendant Christopher Thornton appeals from the district court’s sentence of

seventy-eight months in prison. The issue is whether the district court committed

procedural error by basing the length of Thornton’s sentence, in part, on the
treatment and vocational services he would receive in jail. Federal judges may not

use imprisonment as a means to promote defendants’ correction or rehabilitation.

Tapia v. United States, 

, 335 (2011). In this case, the district court

calculated the advisory prison range under the Sentencing Guidelines and Thornton

moved for a downward variance—requesting a sentence below the advisory range.

The court denied that request, offering several reasons not to impose a below-

guidelines sentence, including that Thornton “needs enough time in prison to get

treatment and vocational benefits.” (Aplt. App. Vol. III. at 36). Thornton claims on

appeal, without having objected in the district court, that the court’s rationale for

sentencing violates Tapia. With this new argument we review the case for plain

error.

         In evaluating Thornton’s sentence, we clarify several principles. First, denials

of downward-variance motions are subject to Tapia scrutiny. Second, Tapia error can

occur even when a district court articulates additional valid reasons for the prison

sentence. Third, a district court need not expressly link a prison sentence to a

specific treatment program in order to trigger Tapia error. Fourth, there is no Tapia

error when a district court addresses rehabilitation merely to refute an offender’s

argument that in-prison treatment justifies a lesser sentence, but there is error when

the district court goes further and grounds his sentence, in part, on the perceived

benefit to the offender of providing prison-based rehabilitation.




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      Applying these principles, we find the district court’s consideration of

in-prison treatment was erroneous, but not plainly so. Accordingly, having

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.



                            I.   Factual Background

      In 2014, Thornton pleaded guilty to possession of a firearm as a felon. The

district court calculated the range of imprisonment under the federal Guidelines was

seventy-seven to ninety-six months. Thornton requested a downward variance to

thirty-eight months based on his youth and the nonviolent nature of his criminal

history. He also argued that in-prison treatment during the proposed thirty-eight

months would help mitigate any potential risk he posed to the community. The

district court, however, denied the variance motion. Even though the district court

was initially prepared to sentence Thornton to eighty-four months in prison, the

government ultimately requested a bottom-guideline sentence of seventy-seven

months. After explaining his reasoning, the judge imposed a sentence of seventy-

eight months’ imprisonment.

      The district court offered several reasons for its decision not to grant the

downward variance or otherwise to impose a lesser sentence. The district court first

emphasized: “[T]he overriding reason is that I don’t think certainly in this case that it

is in the defendant’s best interest to argue for or for a court to give him the lowest

possible sentence. This is a fellow who doesn’t do well on his own. Never has. And

he needs all kinds of services that he can get and will get in prison[.]” (Aplt. App.

                                            3
Vol. III. at 32) (emphasis added). The court then turned to Thornton’s criminal

history, citing his juvenile felony-level adjudications and his adult felony

convictions. It also discussed Thornton’s upbringing, observing how Thornton had

been deserted by his mom and had a challenging history with his dad. The court then

addressed Thornton’s gang history, his lack of education, and the credit Thornton

warranted for going back to get his GED. Then, the judge said: “He’s got mental-

health issues, and he needs treatment. . . . He hasn’t received a lot of treatment,

mostly because he has rejected the efforts of the system in the past to provide him

treatment.” (Id. at 35) (emphasis added). The court also confirmed that Thornton is

a community safety risk because he “mixes drugs and firearms.” (Id.). In finalizing

his decision at seventy-eight months’ imprisonment, the judge summed up with three

reasons: “I do that [1] because of the community-safety issues, [2] because of his

history of rejecting efforts to help him, [3] because I am firmly convinced that he

needs enough time in prison to get treatment and vocational benefits.” (Id. at 36)

(emphasis added).



                            II.   Legal Background

      The Sentencing Reform Act commands federal judges generally to consider

several factors in determining an appropriate sentence, including the nature and

circumstances of the offense and the history and characteristics of the defendant,

18 U.S.C. § 3553(a)(1), as well as the public’s need for punishment, deterrence,

community safety, and the defendant’s need for rehabilitation or correctional

                                            4
treatment, § 3553(a)(2). But the Act separately and more specifically addresses itself

to the sentence of imprisonment, directing judges to “consider the factors set forth in

section 3553(a) . . . , recognizing that imprisonment is not an appropriate means of

promoting correction and rehabilitation.” § 3582(a) (emphasis added). The same

law instructs the Sentencing Commission to “insure that the guidelines reflect the

inappropriateness of imposing a sentence to a term of imprisonment for the purpose

of rehabilitating the defendant or providing the defendant with needed educational or

vocational training, medical care, or other correctional training.” 28 U.S.C.

§ 994(k) (emphasis added). The Supreme Court interpreted these two sections to

permit a sentencing court to consider the § 3553(a) factors in deciding the length of

imprisonment, except for the factor relating to rehabilitation and correctional

treatment. Tapia v. United States, 

, 326-34 (2011). Accordingly, Tapia

announced an unequivocal rule: “a court may not impose or lengthen a prison

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

promote rehabilitation.” 

                          III.   Standard of Review

      Thornton did not argue below that the district court improperly based

Thornton’s sentence on rehabilitation. We therefore review for plain error. E.g.,

United States v. Mendiola, 

, 1036 (10th Cir. 2012). Under this

standard, Thornton must show: (1) the district court erred, (2) the error was plain,



                                           5
(3) the error prejudiced his substantial rights, and (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. 

       Considering just the first two prongs of plain-error review, the sentence may

be reversed only if the error was plain or obvious. See, e.g., United States v.

Ruiz-Gea, 

, 1187 (10th Cir. 2003). We thus divide our discussion into

two parts: (1) whether there was error, and (2) whether any error was plain. At the

first stage of our inquiry (the existence of error), we address and reject four distinct

arguments for why Tapia may not apply in this case. At the second stage (the

obviousness of the error), we conclude that there was sufficient nuance in some of

the Tapia analysis—particularly in light of United States v. Naramor, 

(10th Cir. 2013)—such that the district court’s error was not plain. Accordingly, we

affirm.



   A. The district court erred in basing Thornton’s sentence, in part, on Thornton’s
      need for treatment in prison

       In explaining the denial of the downward variance motion, the district court

started and ended with statements about Thornton’s need for in-prison treatment.

The court began by saying the “overriding reason” for denying the variance motion

was that it was not in Thornton’s “best interest” because he “needs all kinds of

services that he can get and will get in prison[.]” (Aplt. App. Vol. III at 32). Then,


                                            6
after discussing community safety and Thornton’s criminal history, the court

concluded its explanation by stating “I am firmly convinced that [Thornton] needs

enough time in prison to get treatment and vocational benefits.” (Id. at 36). Faced

with this record, we conclude the district court grounded Thornton’s sentence, at least

in part, on a desire to promote his rehabilitation. In determining whether the district

court erred in doing so, we also examine several possible arguments for why Tapia

may not control. We find them unpersuasive.



          1. Denials of downward variance motions are subject to Tapia review

      The government argues for a categorical rule that denials of downward-

variance motions are not subject to Tapia error. In the government’s view, a

sentencing judge may properly consider in-prison treatment options as a basis for

declining to impose a below-guidelines sentence. But that position belies precedent,

the relevant federal statute, and common sense.

      In United States v. Cordery, we found plain Tapia error because, in part, there

was “every reason to believe[, absent the error,] the district court may [have

imposed] a sentence below [the bottom of the guidelines range.]” 

,

1108 (10th Cir. 2011) (emphasis added). This precedent supports the conclusion that,

for the purpose of applying Tapia, there is no difference between refusing a below-

guidelines sentence and granting an above-guidelines sentence.

      Consider also the statutory language that gave us Tapia in the first place. The

statute reads, “The court . . . in determining the length of the term [of imprisonment],

                                           7
shall consider the factors set forth in section 3553(a) . . . , recognizing that

imprisonment is not an appropriate means of promoting correction and

rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). When a court considers a

motion for downward variance, it is “determining the length” of a prison sentence,

and therefore must be governed by the statutory proscription.

         Common sense supports the same conclusion. Refusing to sentence a

defendant below the Guidelines based on his rehabilitative needs creates the same

erroneous result as sentencing him within or above the Guidelines based on

rehabilitation: a term of imprisonment that is longer than it otherwise would have

been had rehabilitative factors not been a basis for the sentence. Accordingly, we see

no good reason to treat motions for downward variance any differently from other

decisions impacting the length of the sentence for the purpose of applying the Tapia

rule.1



             2. Alternative valid reasons do not cure Tapia error

         The government next points to alternative reasons for denying Thornton’s

motion for a downward variance, citing the district court’s reliance on community

safety and Thornton’s criminal history. But the existence of alternative permissible

         1
         After the district court determined Thornton’s sentence, the Tenth Circuit
decided United States v. Tidzump, 

(10th Cir. 2016), which, based on its
facts, confirmed that a refusal to grant a downward variance is subject to Tapia error.
In that case, the district court actually imposed a below-guidelines term of
imprisonment—but the defendant had asked for an even lower sentence, and we
faulted the district court for relying on rehabilitation in declining to grant that
requested variance. 

                                             8
reasons does not cure Tapia error. See 

(Sotomayor, J.,

concurring) (acknowledging the district court erred even though it considered other

factors in addition to rehabilitation); 

(finding plain Tapia

error even when the district court had imposed a sentence “based on several of the

sentencing factors” that were permissible). If the sentence of imprisonment is based

even partially on rehabilitation, it is erroneous.

       A rule requiring reversal only when rehabilitation is the sole motivation would

not make sense. The federal sentencing statute mandates that judges consider other

factors. 18 U.S.C. § 3553(a) (“in determining the particular sentence to be imposed,”

the court “shall” consider enumerated factors (emphasis added)); § 3582 (“in

determining the length of the term [of imprisonment],” the court “shall consider the

factors set forth in section 3553(a)” (emphasis added)). Therefore, there will almost

always be some valid reasons advanced by the district court for imposing the

sentence issued. So the existence of such alternative grounds for a sentence does not

cure the error.



          3. There is Tapia error even when there is no specific link between a
             treatment program and the length of prison term

       In the government’s view, it is not enough for a district court to reference

unspecified treatment or services—there is no error, so argues the government, unless

the judge actually made a specific link between the length of the sentence and

specific treatment programs or services in prison. Applying that rule, the government


                                             9
says seventy-eight months here was not necessary to qualify Thornton for any

specific treatment program, so there was no error.

      But Tapia does not require such a direct connection between a treatment

program and the length of the prison sentence. By its own terms, Tapia prevents

judges from lengthening a prison sentence “to enable an offender to complete a

treatment program or otherwise to promote rehabilitation.” 

(emphasis

added). This “or otherwise” clause shows that the prohibition against imposing a

sentence for rehabilitative purposes must extend beyond that narrow set of

circumstances where the sentence is lengthened specifically to qualify the defendant

for a known rehabilitation program. Moreover, in United States v. Valencia, a

persuasive but not binding case,2 we found Tapia error without a direct link between

the length of the sentence and a specific treatment program. 

, 1175

(10th Cir. 2015) (remanding even when the district judge did not select a sentence

based on the minimum time necessary to complete or be eligible for in-prison

treatment, but when the judge said generally that the Defendant required additional

treatment, care, and services).

      It is true that some of our Tapia cases have factually involved such a direct

connection between the length of the sentence and a specific treatment program. See

United States v. Tidzump, 

, 845-46 (10th Cir. 2016) (finding Tapia error

when the district judge selected a sentence based on the belief that it was the

      2
        While Valencia was in fact published in the Federal Reporter, it was not
intended for publication because it was an Order and Judgment of this Court.
Therefore, although it is not binding, it is persuasive.
                                           10
minimum necessary for the defendant to qualify for a drug treatment program in

prison); 

(same); 

(same). Even

Tapia itself involved a sentencing decision based on the judge’s attempt to give the

defendant sufficient time in prison to complete a 500-hour drug 

; see also 

(Sotomayor, J., concurring). But we have never said such a

connection is required. That would have contradicted Tapia’s holding and would cut

against the facts of one of our non-binding cases, United States v. Valencia, finding

error without such a 

.



          4. That Thornton himself raised the prospect of rehabilitation does not
             cure this particular Tapia error

      When asking for the downward variance, Thornton was concerned that the

district court would deny his request on a belief that he posed a danger to the

community. Acting on that concern, Thornton argued that in-prison treatment over

the course of thirty-eight months would be sufficient to mitigate any threat he posed

to the public—thus, in Thornton’s view, a longer sentence would not be necessary

because he would already benefit from in-prison treatment for a sufficient period. In

light of that, it is understandable that the district court addressed Thornton’s

argument about the effects of in-prison rehabilitation programs. But in this case the

record shows that the district court went further and actually imposed a prison




                                           11
sentence motivated, in part, by a desire to give Thornton the benefits of treatment in

prison.3

      In a situation where a court is addressing a rehabilitation argument raised by

the offender himself, the court might think it is pinned on the horns of an impossible

dilemma. On the one hand, it must consider community safety—and an offender’s

argument that rehabilitation mitigates the community risk is directly relevant to that

consideration. On the other hand, it must be careful of Tapia’s strict boundaries.

However, Tapia does not bar discussion of the consequences of in-prison treatment

on a possible aggravating factor (e.g., community safety) in denying a downward

variance; instead, it only precludes lengthening a prison sentence for the purpose of

providing an offender with perceived rehabilitative benefits. Cf. 

(“A court commits no error by discussing the opportunities for rehabilitation

within prison or the benefits of specific treatment or training programs.” (emphasis

added)); United States v. Lemon, 

, 174 (4th Cir. 2015) (observing the

“broad consensus” that Tapia error turns on “whether a sentencing court’s reference

to rehabilitative needs is causally related to the length of the sentence”).

      That is the teaching of United States v. Naramor, 

, 1168 (10th

Cir. 2013). The offender in Naramor raised the issue of rehabilitation as an argument

      3
         We do not consider this invited error. Invited error occurs when the party
sought out or “affirmatively approv[ed]” an errant outcome. See United States v.
Cornelius, 

, 1319 (10th Cir. 2012). It is a “species of waiver” because
it requires intentional relinquishment of a right. United States v. Rodebaugh, 

, 1304 (10th Cir. 2015). In this case, Thornton did not seek out or willingly
approve of a longer sentence based on rehabilitation—he in fact asked for just the
opposite. Thus, this is not a proper fit for the invited error doctrine.
                                           12
for a shorter prison sentence, and in response to the offender’s argument, the district

court discussed in-prison treatment in order to explain why “earlier release would not

improve treatment options[.]” 

Reviewing the district court’s discussion

of rehabilitation, we found no Tapia error because the district court “did not tie the

length of his sentence to his need for treatment.” 

In other

words, reading that case holistically, it was evident that the district court there did

not, in fact, extend the length of the sentence for the purpose of getting the defendant

needed treatment in prison. Absent that motivation to improve an offender’s lot by

giving him more time in prison, there is no Tapia error.

       Thornton, like the defendant in Naramor, raised the prospect of prison

rehabilitation in advocating for a lesser sentence. But unlike in Naramor, where the

court determined the sentence for entirely proper reasons and the district court

discussed rehabilitation merely to reject the offender’s specific argument, the record

in this case suggests the district court affirmatively desired to give Thornton enough

time in prison to turn his life around, and expressly predicated the imposed sentence,

in part, on that desire. (Aplt. App. Vol. III at 32) (“And he needs all kinds of

services that he can get and will get in prison[.]”); (id. at 35) (“He’s got mental health

issues, and he needs treatment.”); (id. at 36) (“I am firmly convinced that he needs

enough time in prison to get treatment and vocational benefits.”). That motivation is

precisely what Tapia proscribes. Thus, the district court erred.




                                            13
   B. Although the district court erred in predicating the sentence, in part, on
      Thornton’s rehabilitative needs, that error was not plain

      Thornton must also prove the district court’s error was plain or obvious. An

error is plain “when it is contrary to well-settled law.” United States v. Ruiz-Gea,

, 1187 (10th Cir. 2003). For that inquiry we look to whether the

Supreme Court or the Tenth Circuit has addressed the issue. 

Supreme

Court announced its rule in Tapia, it spoke unequivocally in precluding courts from

considering rehabilitation when imposing or lengthening a prison sentence. See

n.2 (“Tapia’s holding was clear and unequivocal.”).

Even Tapia itself concluded the reliance on rehabilitation was so plainly contrary to

the federal statute that it warranted a finding of plain error.4 

(noting defendant’s failure to object in the district court); 

(remanding for

consideration of the remaining prongs of plain-error review).

      That being said, this case involves some legal nuances that are not obvious. In

particular, two issues may not have been clearly foreclosed by existing precedent:

(1) whether Tapia is only violated when the court expressly links the length chosen

for the prison sentence to a specific treatment program 

Part IV.A.3), and

(2) whether Tapia is violated when the district court references rehabilitation only

after the offender himself injects rehabilitation into the sentencing calculus on his

own initiative, 

Part IV.A.4).

      4
         The Supreme Court’s finding of plain error in Tapia is a reminder that plain
error may be found even when there is no previous controlling authority from the
Supreme Court or relevant courts of appeals—an error may still be plain if the statute
itself conveys a clear command.
                                           14
      First, although we hold that Tapia does not require such a direct connection

between a treatment program and the length of the prison sentence, there is no

binding case that has previously so held. Our “Order and Judgment” in United States

v. Valencia, 

(10th Cir. 2015), which found error without such a

connection, is persuasive, but not binding. Moreover, as noted earlier, most cases

from this circuit have factually involved that express connection.

      Second, before today’s decision, and in light of United States v. Naramor, 

(10th Cir. 2013), a district court would have lacked clear guidance from

controlling authority on how to consider rehabilitation-based arguments raised by the

offender as a grounds for leniency. We have now clarified that a district court may

address rehabilitation in evaluating an offender’s argument that such rehabilitation

would lessen the offender’s danger to the community and thereby justify a shorter

term of imprisonment.5 See 

(finding no Tapia error when

the district court’s reference to in-prison treatment was made only to refute the

offender’s rehabilitation-based argument). But a district court may not then base the

length of imprisonment on a desire to promote the offender’s rehabilitation. That is,

the court may not lengthen a prison sentence for the purpose of exposing the offender


      5
        A district court does not violate Tapia merely by discussing the benefits of
in-prison treatment when such discussion did not actually motivate a longer sentence,
but was merely incidental thereto. See 

(“A court commits no
error by discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs.”); United States v. Lemon, 

,
174 (4th Cir. 2015) (observing the “broad consensus” that Tapia error turns on
“whether a sentencing court’s reference to rehabilitative needs is causally related to
the length of the sentence”).
                                           15
to the rehabilitative benefits of prison. Before today, no controlling authority has

clearly spelled out this delineation, so we cannot fault the district court here for

committing Tapia error after Thornton himself injected the rehabilitation issue into

the sentencing discussion. See 

(explaining that the

obviousness of the error turns on the presence of controlling authority that has

spoken clearly to the issue).

      These are precisely the nuances that could have been worked out—and error

avoided—had Thornton made a Tapia objection in the district court at the time of

sentencing. Had this issue been raised below, we have no doubt that the district court

could have clarified its reasoning and avoided Tapia error. But because Thornton did

not raise the issue when it could have been meaningfully addressed, we are forced at

the appellate level to review a record that has now become set in stone. That is

precisely what the plain-error doctrine is designed to discourage. Here, the plain-

error doctrine proves fatal to Thornton’s claims.



                                 V.    Conclusion

      We find the district court’s consideration of rehabilitation as a part of its

sentencing calculus was erroneous, but not plainly so. Accordingly, we AFFIRM the

sentence.




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