PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4696

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CYNTHIA LEMON,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, Senior 

District Judge. (3:08-cr-00004-CMC-1)

Argued: December 11, 2014 Decided: January 23, 2015

Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in 

which Judge Thacker and Senior Judge Davis joined.

ARGUED: Katherine E. Evatt, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Columbia, South Carolina, for Appellant. Winston 

David Holliday, Jr., OFFICE OF THE UNITED STATES ATTORNEY, 

Columbia, South Carolina, for Appellee. ON BRIEF: William N. 

Nettles, United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Columbia, South Carolina, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:

Cynthia Lemon appeals her twenty-four month prison sentence 

for several violations of her supervised release. She argues 

that the district court committed plain error at her revocation 

hearing by considering her rehabilitative needs as a factor in

determining the length of her sentence. For the following 

reasons, we affirm.

I.

The parties do not dispute the facts of this case. In 

2008, Lemon pleaded guilty to conspiracy to defraud the United 

States by making, uttering, and possessing forged securities in 

violation of 18 U.S.C. § 531 and § 371. The district court

sentenced her to thirty months in prison and three years of 

supervised release. Lemon’s supervised release term began in 

February 2013. Five months later, she was arrested for multiple 

violations of her supervision, including several instances of 

forging checks.

Based on the nature of Lemon’s violations and her extensive 

criminal history, the supervised release violation report 

provided for a Guidelines range of 21-27 months’ imprisonment. 

Factoring in the statutory maximum reduced that range to 21-24 

months. Lemon filed no objections to the report, and Lemon’s 
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probation officer recommended a sentence of twenty-four months’ 

imprisonment.

At the revocation hearing, the Government requested a 

sentence within the Guidelines range. Lemon’s counsel requested 

a sentence of time served and continuation on supervised

release. In the alternative, Lemon’s counsel requested a 

sentence of one year and one day -- the same sentence the court 

had imposed on Lemon’s co-defendant.

The district court adopted the Government’s recommendation,

revoking Lemon’s supervised release and sentencing her to 

twenty-four months in prison. After announcing its sentence, 

the court addressed Lemon and commented on both the basis for 

its sentence and its concern about her mental health:

I cannot imagine what was in your mind that led you to 

do this again, what you possibly could have been 

thinking that you could get away with this. To me it 

almost indicates some loss of contact with reality, 

that you could think you could possibly get away with 

this. And to do it, you know, over and over again 

while you are on supervised release, after having 

served state time and federal time for the similar 

type [of] conduct.

So, I don’t know whether you received any type of 

counseling when you were serving your time before, I 

don’t know whether you will be able to this time, but 

I hope maybe you can. Because you have a serious 

emotional problem that would cause you to behave this 

way despite what it costs your children and your 

family. It’s just so unfair to them, and you don’t 

seem to get it.

So, I have considered the seriousness of the offense, 

the revocation offenses, I have considered that this 
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is a category six criminal history, continuing to reoffend. I have considered that you do have a serious 

family situation, but you aren’t really helping your 

family situation, you are hurting your family 

situation.

I have considered the need for the sentence to reflect 

the seriousness of the offense, promote respect for 

the law, provide just punishment, afford adequate 

deterrence.

I have also considered specifically the need to 

protect the public from further crimes. I believe 

that if you were out again you would be doing the same 

thing, and I believe that you need further 

correctional treatment and some type of evaluation. 

I’m going to recommend some sort of mental health 

counseling while you are in the BOP this time to see 

if there is anything they can do for you to stop this 

recidivist behavior.

Lemon noted a timely appeal of her sentence, and her 

counsel filed an Anders brief that identified no reversible 

error. After reviewing the record, we requested supplemental 

briefing on whether the district court impermissibly sentenced 

Lemon based on its perception that she needed rehabilitative

mental health treatment.

II.

The only error Lemon now alleges is that the district court 

considered her rehabilitative needs when determining the length 

of her revocation sentence, in violation of Tapia v. United 

States, 131 S. Ct. 2382 (2011). As Lemon’s counsel acknowledged 

at oral argument, this issue was not raised at the revocation 
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hearing. Therefore, we review for plain error. See United 

States v. Olano, 507 U.S. 725, 731 (1993). To prevail, Lemon 

must show that “an error (1) was made, (2) is plain (i.e., clear 

or obvious), and (3) affects substantial rights.” United States 

v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even if Lemon makes 

such a showing, this court “may exercise its discretion to 

correct the error only if it seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” Id.

(internal quotation marks and citation omitted).

A.

In Tapia, the Supreme Court held that the “Sentencing 

Reform Act precludes federal courts from imposing or lengthening 

a prison term in order to promote a criminal defendant's 

rehabilitation.” 131 S. Ct. at 2385. In reaching that holding, 

the Court distinguished between permissible and impermissible 

discussions of rehabilitation at a sentencing hearing.1 On the 

one hand, “[a] court commits no error by discussing the 

opportunities for rehabilitation within prison or the benefits 

of specific treatment or training programs.” Id. at 2392. A 

court crosses the line, however, if it chooses to “impose or 

 1 Although the sentence at issue in Tapia was imposed after 

the defendant’s initial conviction, we have held that Tapia

applies to revocation sentences. United States v. Bennett, 698 

F.3d 194, 198 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506 

(2013).
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lengthen a prison sentence to enable an offender to complete a 

treatment program or otherwise to promote rehabilitation.” Id.

at 2393 (emphasis omitted).

The underlying facts in Tapia illustrate this distinction. 

There, the district court had indicated that it chose the length 

of the defendant’s sentence at least in part so that she could 

participate in a particular drug treatment program. Id. at 

2385. Specifically, the court had explained that “[t]he 

sentence has to be sufficient to provide needed correctional 

treatment, and here I think the needed correctional treatment is 

the 500 Hour Drug Program. . . . I am going to impose a 51-month 

sentence, . . . and one of the factors that affects this is the 

need to provide treatment.” Id. (alterations in original). The 

Supreme Court found that these comments “suggest[ed] that the 

court may have calculated the length of Tapia’s sentence to 

ensure that she receive[d] certain rehabilitative services.” 

Id. at 2393 (emphasis omitted). The Court remanded the case to 

the Ninth Circuit, which then held that the district court had 

in fact committed plain error. United States v. Tapia, 665 F.3d 

1059, 1063 (9th Cir. 2011).

We have emphasized that Tapia “does not prevent a district 

court from considering [rehabilitation] in the course of a 

sentencing proceeding.” United States v. Alston, 722 F.3d 603, 

609 (4th Cir.) (emphasis added), cert. denied, 134 S. Ct. 808
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(2013). Instead, “Tapia stands for the proposition that a court 

cannot impose or lengthen a sentence” to further a 

rehabilitative purpose. Id. (emphasis in original).

Accordingly, in Alston we rejected the defendant’s claim of 

Tapia error because we determined that the defendant’s 

rehabilitative needs did not affect the length of his sentence. 

Id. at 609. All the district court had said regarding 

rehabilitation at sentencing was that its sentence would 

“protect[] the public” from the defendant and “provide[] the 

needed treatment of care in the most effective manner possible.” 

Id. at 608. We concluded that these comments indicated the

district court’s awareness of the rehabilitative benefits of the 

defendant’s sentence, but they did not indicate that the court 

chose or lengthened the sentence because of those benefits. Id.

at 608-09.

In United States v. Bennett, 698 F.3d 194 (4th Cir. 2012),

by contrast, we concluded that the district court impermissibly 

linked the defendant’s rehabilitative needs to the length of his 

sentence. The district court there noted that the defendant 

“needs intensive substance abuse treatment. So, the court will 

impose a sentence that provides ample time for that.” Id. at 
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196-97. We held that the court’s reliance on rehabilitative

needs in fashioning its sentence constituted error.2 Id. at 200.

Alston and Bennett illustrate the line between permissible 

comment upon a defendant’s rehabilitative needs and reliance on

those needs as a factor in selecting the length of his prison 

sentence. This distinction accords with the “broad consensus” 

among our sister circuits that the presence of Tapia error turns 

on “whether a sentencing court’s reference to rehabilitative 

needs [is] causally related to the length of the sentence.” 

United States v. Del Valle-Rodriguez, 761 F.3d 171, 174 (1st 

Cir.) (emphasis added) (citing cases), cert. denied, 135 S. Ct. 

293 (2014).

Such a causal relationship may be clearest when, as in 

Tapia, a sentencing court has a particular rehabilitative 

program in mind and uses the length of that program to justify 

the length of its sentence. See, e.g., United States v. 

Kubeczko, 660 F.3d 260, 261 (7th Cir. 2011) (finding clear Tapia

error where a district court explained that the defendant needed 

“to be in one place longer than 18 months” to get mental health 

treatment). Courts have also found Tapia violations when there 

 2 We then assumed that the error was plain, but we

ultimately concluded that it did not affect the defendant’s

substantial rights because it was the “brazen breach of trust 

inherent in [the defendant’s] unlawful actions,” rather than his 

rehabilitative needs, that “drove the district court’s 

sentencing decision.” Bennett, 698 F.3d at 200.
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are less clear indicia that rehabilitation affected the length 

of a defendant’s sentence. The Eleventh Circuit has articulated 

the most expansive test, finding Tapia error whenever “the 

district court considers rehabilitation when crafting a sentence 

of imprisonment.” United States v. Vandergrift, 754 F.3d 1303, 

1310 (11th Cir. 2014) (emphasis in original). But in 

Vandergrift, as in Bennett, the sentencing court appeared to 

“consider” rehabilitation with an eye toward lengthening the 

defendant’s sentence. The court there explained that “I’ve also 

got to consider what’s best for the defendant as a factor in the 

equation” and observed that while the defendant “does not thrive 

in an unstructured environment,” he could get mental health 

treatment and “vocational training for a period of time in the 

prison system.” Id. at 1306 (emphasis added). No matter how 

the test is articulated, we find it unlikely that a court has 

committed Tapia error unless it has considered rehabilitation 

for the specific purpose of imposing or lengthening a prison 

sentence.

B.

With these considerations in mind, we hold that the 

district court did not plainly err when it discussed Lemon’s 

need for mental health counseling at sentencing. In arguing to 

the contrary, Lemon attempts to align this case with Tapia and 

Bennett. See Appellant’s Supp. Br. 11-12. But in contrast to 
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those cases, the district court here never suggested that its 

concern for Lemon’s mental health was a factor in fixing the 

length of her sentence. In fact, the court’s uncertainty about 

Lemon’s counseling options suggests rehabilitation was not a 

factor. After observing that it did not “know whether [Lemon

had] received any type of counseling” during her previous prison 

term, the district court commented that “I don’t know whether 

you will be able to this time, but I hope maybe you can.” It is 

difficult to conclude that the court lengthened Lemon’s sentence 

so she could receive mental health treatment if the court was 

unsure whether such treatment was even available.3

Moreover, the district court provided a rationale for 

Lemon’s sentence that did not rest, expressly or implicitly, on 

her rehabilitative needs. In particular, the court emphasized 

that Lemon had “continu[ed] to re-offend,” and there was 

therefore a “need to protect the public from further crimes.” 

 3 In addition to Tapia and Bennett, Lemon relies on two

unpublished cases for her argument that the district court 

impermissibly considered her rehabilitative needs. See

Appellant’s Supp. Br. 11 (citing United States v. Pate, 503 F. 

App’x 216 (4th Cir. 2013) (unpublished per curiam) and United 

States v. Olds, 464 F. App’x 117 (4th Cir. 2012) (unpublished

per curiam)). Unpublished opinions have no precedential value 

in this circuit. See Hentosh v. Old Dominion Univ., 767 F.3d 

413, 417 (4th Cir. 2014). Even if published, neither case would 

aid Lemon’s cause; in both, the sentencing court issued an 

above-Guidelines sentence for the express purpose of providing

the defendant drug treatment. See Pate, 503 F. App’x at 217; 

Olds, 464 F. App’x at 118. These cases thus provide clear 

examples of Tapia error; Lemon’s does not.
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These considerations, rather than concern for Lemon’s mental 

health, appear to have motivated the court’s decision to impose 

its sentence.

To be sure, the court could have more clearly separated its 

discussion of Lemon’s rehabilitative needs from its discussion 

of the factors that affected the length of her sentence. As we 

advised in Bennett, “[b]y keeping these distinct concepts 

distinct, courts will preclude the possibility of confusion on 

appeal over whether a Tapia error has occurred.” 698 F.3d at 

199. But even if we read ambiguity into the revocation hearing 

transcript, it is certainly not “clear or obvious,” Lynn, 592 

F.3d at 577, that the district court impermissibly considered 

rehabilitation. Accordingly, the court did not plainly err in 

sentencing Lemon.4

 4 At oral argument, Lemon’s counsel pointed to the disparity 

between the sentences imposed on Lemon and her co-defendant as 

evidence that the district court must have considered her need 

for rehabilitation. Having reviewed the record in both cases, 

we are not troubled by the twelve-month difference in the 

revocation sentences. Although both defendants faced the same 

Guidelines range at their revocation hearings, Lemon had 

committed several more supervised release violations. And at 

the time of their underlying offenses, Lemon had nearly twice 

the criminal history points as her co-defendant. It is 

understandable that the district court would treat the two 

defendants differently.
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III.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.