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-C R-00443-RBJ-1)

________________ _________________ Ryan K. Melcher, Assistant Fe deral Public Defender (Virginia L. Grady, with him on the briefs), Denver, Colorado, for Defendant-Appellant. Karl L. Schock, Assistant Unite d States Attorney (John F. Wa lsh, 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 pris on. The issue is whether th e 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 

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Elisabeth A. Shumaker Clerk of Court2 treatment and vocational services he would receive in jail. Federal judges may not use imprisonment as a means to promote de fendants’ correction or rehabilitation. Tapia v. United States, 564 U.S. 319, 335 (20 11). In this case, the district court calculated the advisory pris on 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 Thor nton “needs enough time in prison to get treatment and vocational benefi ts.” (Aplt. App. Vol. III. at 36). Thornton claims on appeal, without having objected in the distri ct 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 clar ify several principles . First, denials of downward-variance motions are subject to Tapia scrutiny. Second, Tapia error can occur even when a district court articula tes 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 reha bilitation merely to refute an offender’s argument that in-prison treatment just ifies a lesser se ntence, but there is error when the district court goes furt her and grounds his sentence, in part, on the perceived benefit to the offender of provi ding 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 posse ssion of a firearm as a felon. The district court calculated th e range of imprisonment under the federal Guidelines was seventy-seven to ninety-six months. Thornton request ed 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, deni ed the variance motion. Ev en though the district court was initially prepared to sentence Thornt on to eighty-four months in prison, the government ultimately requested a bo ttom-guideline sentence of seventy-seven months. After explaining hi s reasoning, the judge imposed a sentence of seventyeight months’ imprisonment. The district court offered several reas ons for its decision not to grant the downward variance or otherwise to impose a le sser 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 in terest 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 t hat he can get and will get in prison [.]” (Aplt. App.4 Vol. III. at 32) (emphasis added). The c ourt then turned to Thornton’s criminal history, citing his juven ile felony-level adjudicati ons and his adult felony convictions. It also disc ussed 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 hist ory, his lack of educati on, and the credit Thornton warranted for going back to get hi s GED. Then, the judge said: “ He’s got mentalhealth issues, and he needs treatment. . . . He hasn’t receive d 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 firear ms.” (Id.). In finalizing his decision at seventy-eight months’ im prisonment, the judge summed up with three reasons: “I do that [1] because of the co mmunity-safety issues, [2] because of his history of rejecting effo rts to help him, [3] because I am firmly convinced that he needs enough time in prison to ge t treatment and vocational benefits .” (Id. at 36) (emphasis added).

II. Legal Background The Sentencing Reform Act commands fe deral judges genera lly to consider several factors in determining an appropr iate sentence, including the nature and circumstances of the offens e and the history and charact eristics 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 rehabilitati on or correctional5 treatment, § 3553(a)(2). But the Act separa tely and more specifica lly addresses itself to the sentence of imprisonment, directing j udges 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) (emphasi s added). The same law instructs the Sentencing Commission to “insure that the guidelines reflect the inappropriateness of imposing a sentence to a te rm of imprisonment for the purpose of rehabilitating the defendant or providing th e 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 rela ting to rehabilitati on and correctional treatment. Tapia v. United States, 564 U.S. 319, 326-34 (2011). Accordingly, Tapia announced an unequivocal rule: “a cour t may not impose or lengthen a prison sentence to enable an offe nder to complete a treatment program or otherwise to promote rehabilitation. ” Id. at 335.

III. Standard of Review Thornton did not argue below that th e district court improperly based Thornton’s sentence on rehabilit ation. 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 distri ct court erred, (2) the error was plain,6 (3) the error prejudiced his substantial right s, and (4) the error seriously affects the fairness, integrity, or public reputa tion 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 addr ess 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 th at the district court’s error wa s not plain. Accordingly, we affirm.

A. The district court erred in basing Thor nton’s sentence, in part, on Thornton’s need for treatment in prison In explaining the denial of the downwar d variance motion, the district court started and ended with statem ents 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 Thor nton’s “best interest” because he “needs all kinds of services that he can get and w ill get in prison[.]” (Aplt. App. Vol. III at 32). Then,7 after discussing community safety and Th ornton’s criminal history, the court concluded its explanation by stating “I am firmly conv inced that [Thornton] needs enough time in prison to get treatment and vo cational 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 promot e his rehabilitation. In dete rmining 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 moti ons are subject to Tapia review The government argues for a categori cal rule that denials of downwardvariance motions are not subject to Tapi a error. In the government’s view, a sentencing judge may properly consider in-p rison treatment options as a basis for declining to impose a below- guidelines sentence. But th at position belies precedent, the relevant federal stat ute, and common sense. In United States v. Cordery, we found pl ain Tapia error because, in part, there was “every reason to believe[, absent th e error,] the district court may [have imposed] a sentence below [the bottom of the guidelin es range.]” 656 F.3d 1103, 1108 (10th Cir. 2011) (emphasi s added). This precedent s upports the conclusion that, for the purpose of applying Tapia, there is no difference betw een 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) (em phasis added). When a court considers a motion for downward variance, it is “deter mining the length” of a prison sentence, and therefore must be governed by the statutory proscription. Common sense supports the same conc lusion. Refusing to sentence a defendant below the Guidelines based on hi s rehabilitative need s creates the same erroneous result as sentencing him with in or above the Guidelines based on rehabilitation: a term of im prisonment that is longer th an it otherwise would have been had rehabilitative factors not been a basis for the sent ence. Accordingly, we see no good reason to treat motions for downw ard variance any differently from other decisions impacting the lengt h of the sentence for the pur pose of applying the Tapia rule. 1

2. Alternative valid reasons do not cure Tapia error The government next points to altern ative reasons for denying Thornton’s motion for a downward variance, citing the district court’s re liance on community safety and Thornton’s criminal history. But the existen ce of alternative permissible

1 After the district court determined Thornton’s sentence, the Tenth Circuit decided United States v. Ti dzump, 841 F.3d 844 (10th Cir. 2016), which, based on its facts, confirmed that a refusa l to grant a downward variance is subject to Tapia error. In that case, the district court actua lly 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 reha bilitation); Cordery, 656 F.3d at 1105 (finding plain Tapia error even when the district court had imposed a senten ce “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 re habilitation is the so le motivation would not make sense. The fe deral sentencing statute mandates that judges consider other factors. 18 U.S.C. § 3553(a) (“in determining the particul ar 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)” (emphasi s added)). Therefor e, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued. So th e existence of such alternative grounds fo r 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 e nough 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. Applyi ng that rule, the government10 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 di rect connection between a treatment program and the length of the prison senten ce. By its own terms, Tapia prevents judges from lengthening a prison sentence “t o enable an offender to complete a treatment program or otherwise to promote rehabilitation .” Id. at 335 (emphasis added). This “or otherwise” clause s hows that the prohibition against imposing a sentence for rehabilitative purposes must extend beyond that narrow set of circumstances where the sentence is lengthe ned specifically to qualify the defendant for a known rehabilitation program. Moreove r, in United States v. Valencia, a persuasive but not binding case, 2 we found Tapia error wit hout a direct link between the length of the sentence and a specifi c treatment program. 776 F.3d 1173, 1175 (10th Cir. 2015) (remanding ev en when the district judge did not select a sentence based on the minimum time necessary to co mplete or be elig ible for in-prison treatment, but when the judge said genera lly 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 senten ce 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 sent ence 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 de fendant 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 comp lete a 500-hour drug pr ogram. 546 U.S. at 334; see also id. at 337 (Sot omayor, J., concurring). But we have never said such a connection is required . That would have contradict ed 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 hi s request on a belief that he posed a danger to the community. Acting on that concern, Thor nton argued that in-prison treatment over the course of thirty-eight m onths would be sufficient to mi tigate 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-pri son treatment for a sufficient period. In light of that, it is unders tandable that the district court addressed Thornton’s argument about the effects of in-prison rehabilitation program s. But in this case the record shows that the district court we nt further and actually imposed a prison12 sentence motivated, in part, by a desire to give Thornton th e benefits of treatment in prison. 3
In a situation where a court is addre ssing 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 cons ider community safety—and an offender’s argument that rehabilitation mitigates the comm unity risk is directly relevant to that consideration. On the other hand, it must be careful of Tapi a’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 reha bilitative 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 Tapi a error turns on “whether a sentencing court’s reference to rehabilitative needs is causally re lated 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 rehabil itation 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 outco me. See United States v. Cornelius, 696 F.3d 1307 , 1319 (10th Cir. 2012). It is a “species of waiver” because it requires intentional relinquish ment of a right. United States v. Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015). In this cas e, Thornton did not s eek 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 orde r 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 c ourt “did not tie the length of his sentence to his need for treatment.” Id. (emphasis added). In other words, reading that case holis tically, it was eviden t that the district court there did not, in fact, extend the lengt h 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 pris on, there is no Tapia error. Thornton, like the defendant in Naramo r, raised the prospect of prison rehabilitation in advocating fo r a lesser sentence. But unlike in Naramor, where the court determined the sentence for entirel y proper reasons and the district court discussed rehabilitation merely to reject the offe nder’s specific argument, the record in this case suggests the dist rict court affirmatively desi red to give Thornton enough time in prison to turn his life around, and expressly predicated the imposed sentence, in part, on that desire. (A plt. App. Vol. III at 32) (“And he needs all kinds of services that he can get and w ill get in prison[.]”); (id. at 35) (“He’s got mental health issues, and he needs treatment.”); (id. at 36) (“I am firmly convi nced that he needs enough time in prison to get treatment and vo cational 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 need s, that error was not plain Thornton must also prove the district c ourt’s error was plai n or obvious. An error is plain “when it is contrary to we ll-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 addr essed the issue. Id . When the Supreme Court announced its rule in Tapia, it spoke unequivocally in pr ecluding courts from considering rehabilitation when imposing or lengtheni ng a prison sentence. See Mendiola, 696 F.3d at 1036 n. 2 (“Tapia’s holding was cl ear and unequivocal.”). Even Tapia itself concluded the reliance on rehabilitation was so plainly contrary to the federal statute that it wa rranted a finding of plain error. 4 See 546 U.S. at 322 (noting defendant’s failure to object in the district c ourt); id. at 335 (remanding for consideration of the remaining pr ongs of plain-error review). That being said, this case involves some le gal nuances that are not obvious. In particular, two issues may not have been clearly fore closed by existing precedent: (1) whether Tapia is only violated when th e court expressly links the length chosen for the prison sentence to a sp ecific treatmen t program (see supra Part IV.A.3), and (2) whether Tapia is violated when the dist rict court references rehabilitation only after the offender himself injects rehabili tation into the sentencing calculus on his own initiative, (see supra Part IV.A.4).

4 The Supreme Court’s finding of plain e rror in Tapia is a reminder that plain error may be found even wh en 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 doe s not require such a direct connection between a treatment program and the length of the pr ison 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 fa ctually 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 re habilitation-based arguments raised by the offender as a grounds for leniency. We ha ve now clarified that a district court may address rehabilitation in evaluating an offe nder’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 referen ce to in-prison treatment wa s made only to refute the offender’s rehabilitation-based ar gument). But a district court may not then base the length of imprisonment on a desi re 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 di scussing 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 rehab ilitation within prison or the benefits of specific treatment or training programs.”); United States v. Le mon, 777 F.3d 170, 174 (4th Cir. 2015) (observing the “broad consensus” that Tapia error turns on “whether a sentencing court’s reference to re habilitative 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 himsel f 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 pres ence of controlling authority that has spoken clearly to the issue). These are precisely the nuances that c ould 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 be en raised below, we have no doubt that the district court could have clarified its reas oning and avoided Tapia error. But because Thornton did not raise the issue when it coul d have been meaningfully a ddressed, we are forced at the appellate level to review a record that has now beco me 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 considerati on of rehabilitation as a part of its sentencing calculus was erroneous, but not pl ainly so. Accordingly, we AFFIRM the

sentence.