PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CHRISTOPHER WAYNE THORNTON, 

 Defendant - Appellant. 

No. 15-1345 

_________________________________ 

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 

FILED 

United States Court of Appeals

Tenth Circuit 

January 20, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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, 564 U.S. 319, 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 belowguidelines 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. 
3 

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 seventyeight 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. 
4 

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 mentalhealth 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 
5 

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, 564 U.S. 319, 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.” Id. at 335. 

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, 696 F.3d 1033, 1036 (10th Cir. 2012). Under this 

standard, Thornton must show: (1) the district court erred, (2) the error was plain, 
6 

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

fairness, integrity, or public reputation of judicial proceedings. Id. 

IV. Discussion 

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, 340 F.3d 1181, 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, 726 F.3d 1160 

(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, 
7 

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 downwardvariance 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.]” 656 F.3d 1103, 

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 belowguidelines 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], 
8 

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, 841 F.3d 844 (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. Id. at 845-46. 
9 

reasons does not cure Tapia error. See Tapia, 564 U.S. at 335-36 (Sotomayor, J., 

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

factors in addition to rehabilitation); Cordery, 656 F.3d at 1105 (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 
10 

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.” Id. at 335 (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. 776 F.3d 1173, 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, 841 F.3d 844, 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. 
11 

minimum necessary for the defendant to qualify for a drug treatment program in 

prison); Mendiola, 696 F.3d at 1035 (same); Cordery, 656 F.3d at 1105 (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 program. 546 U.S. at 

334; see also id. at 337 (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 requirement, 776 F.3d at 1175. 

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 
12 

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. Tapia, 564 U.S. 

at 334 (“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, 777 F.3d 170, 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, 726 F.3d 1160, 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, 696 F.3d 1307, 1319 (10th Cir. 2012). It is a “species of waiver” because 

it requires intentional relinquishment of a right. United States v. Rodebaugh, 798 

F.3d 1281, 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. 
13 

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[.]” Id. at 1168. 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.” Id. (emphasis added). 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. 
14 

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, 

340 F.3d 1181, 1187 (10th Cir. 2003). For that inquiry we look to whether the 

Supreme Court or the Tenth Circuit has addressed the issue. Id. When the Supreme 

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

considering rehabilitation when imposing or lengthening a prison sentence. See 

Mendiola, 696 F.3d at 1036 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 See 546 U.S. at 322 

(noting defendant’s failure to object in the district court); id. at 335 (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 (see supra 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, (see supra 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. 
15 

 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, 776 F.3d 1173 (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, 726 

F.3d 1160 (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 Naramor, 726 F.3d at 1168 (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 Tapia, 564 U.S. at 334 (“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, 777 F.3d 170, 

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”). 
16 

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 Ruiz-Gea, 340 F.3d at 1187 (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 plainerror 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.