REINHARDT, Circuit Judge:
In sentencing Alejandra Tapia ("Tapia") following her conviction on immigration and bail-jumping charges, the district judge made a number of comments suggesting that the length of the sentence he imposed was determined at least in part by a desire to ensure that Tapia received drug treatment while in prison. We affirmed Tapia's sentence, but the Supreme Court reversed, remanding to this court to determine whether Tapia is entitled to relief despite her failure to object to her sentence when imposed. Tapia v. United States ___ U.S. ___, 131 S.Ct. 2382, 2391-93, 180 L.Ed.2d 357 (2011). We hold that the district court's consideration of Tapia's rehabilitative needs in determining her sentence constituted plain error. We therefore vacate the sentence and remand for resentencing.
Border patrol agents arrested Tapia and Tinamarie Torres Debenedetto after they attempted to cross into the United States from Mexico with two undocumented aliens concealed in their car. Tapia was indicted for bringing an illegal alien into the country without presentation and for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and (iii), and was released on her own recognizance. When she did not attend a motion hearing, a superceding indictment was issued encompassing the additional charge of knowing failure to appear in violation of 18 U.S.C. § 3146. A federal jury convicted her of the immigration and bail-jumping charges.
At sentencing, the government sought a sentence of 63 months imprisonment. After the district judge determined that the Guidelines sentence range for Tapia was 41 to 51 months, he imposed a sentence of 51 months. In complying with his obligation to explain his reasons for imposing a sentence of this length, see Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the district judge repeatedly invoked Tapia's struggles with substance abuse, and her need to be enrolled in a drug treatment program. At no point in these proceedings did Tapia object to the sentence imposed. She appealed, however, challenging the district judge's consideration at sentencing of her need to receive drug treatment. We affirmed, citing circuit precedent holding that a district court could properly consider the need for rehabilitation in determining the length of an offender's prison term. United States v. Tapia, 376 Fed.Appx. 707 (9th Cir.2010) (citing United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994)).
The Supreme Court unanimously reversed. Tapia, 131 S.Ct. at 2385. The Court concluded that 18 U.S.C. § 3582(a) "precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation." Id. at 2391.
Where, as here, a defendant did not raise her objection to her sentence before the district court, we review for plain error. See Fed. R.Crim. Proc. 52(b); United States v. Waknine, 543 F.3d 546, 551 (9th Cir.2008). Under the plain error standard of review, the appellant must show that "there is (1) error that is (2) plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Charles, 581 F.3d 927, 933 (9th Cir.2009) (quoting United States v. Cruz, 554 F.3d 840, 845 (9th Cir.2009)) (internal quotation mark omitted).
The government concedes that Tapia has met the first two prongs of the plain error standard: the district court erred in considering Tapia's correctional and rehabilitative needs at sentencing, and that error was plain. The question is, therefore, whether Tapia has demonstrated that this error "affected substantial rights" and "seriously affected the fairness, integrity or public reputation of judicial proceedings." We conclude that she has.
To show that the district court's error affected her substantial rights, Tapia must demonstrate "a reasonable probability that [she] would have received a different sentence" if the district court had not erred. Waknine, 543 F.3d at 554; United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); see United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc). A "reasonable probability" is, of course, less than a certainty, or even a likelihood. See Dominguez Benitez, 542 U.S. at 86, 124 S.Ct. 2333 (Scalia, J., concurring in the judgment) (observing that the "reasonable probability" standard is more "defendant-friendly" than the "more likely than not" standard). This court has held that the standard can be met even without direct evidence of what sentence would have been imposed if not for the district court's error. See, e.g., United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir.2008) (although the district court's intentions were "difficult to discern," its erroneous calculation of an offender's Criminal History Category "could easily have . . . led [it] to impose an additional one month of imprisonment," and thus affected substantial rights).
We conclude there is a "reasonable probability" that the district judge's consideration of Tapia's rehabilitative needs influenced the length of the sentence he imposed. The district judge said the sentence
There is little reason to think that the district judge did not mean what he said in
Tapia has also demonstrated that this error "seriously affected the fairness, integrity, or public reputation of judicial proceedings." We have regularly deemed the fourth prong of the plain error standard to have been satisfied where, as here, the sentencing court committed a legal error that may have increased the length of a defendant's sentence. See, e.g., id. at 554-55; United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir.1999), amended by 204 F.3d 1257 (9th Cir.2000); United States v. Lawton, 193 F.3d 1087, 1095 (9th Cir.1999), superseded in part on other grounds, U.S.S.G. App'x C. para. 604 (2000), as recognized in United States v. Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir.2003). As we explained in Castillo-Casiano:
198 F.3d at 792. For these same reasons, we exercise our discretion to notice the plain error committed by the district court in this case. See Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
Accordingly, we conclude that the district judge committed plain error by "lengthening [Tapia's] prison term to promote [her] rehabilitation." Tapia, 131 S.Ct. at 2391. We vacate her sentence and remand for resentencing.
18 U.S.C. § 3582(a) (emphasis added).