## IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10543

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. JESUS JAVIER GARZA, Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas

Before DeMOSS, OWEN, and HAYNES, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Jesus Javier Garza violated the conditions of his s upervised release and

was sentenced to twenty-four months of imprisonment to be followed by twentyfour months o f s u p ervised release. On appeal, Garza argues that the district court improperly considered his rehabilitative needs in determining the length of his prison sentence in violation of Tapia v. United States , which held that “a 1


### court may not impose or lengthen a prison sentence to en a b le an offender to U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D Februa ry 1, 201 3 Lyle W . Cayce Clerk

131 S

. Ct. 238 2 ( 2011)

. 1 

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### No. 11-10543

complete a treatment program or otherwise to promote rehabilitation.” W e 2 

### vacate and remand for resentencing. I Garza pleaded guilty to possession with intent t o d istribute

m e t h a mphetamine and was sentenced to fifty-five months in prison to be followed by a five-year term of supervised release. Garza b e g a n s e rving that term of supervised release on August 1, 2008. When Garza allegedly violated a number of the co n d i t ions of his supervised release, the Government filed a motion to revoke supervised release pursuant to 18 U.S.C. § 3583(e). At his revocation hearing, Garza pleaded true to all of the factual allegations in the Governme nt’s motion to revoke, with one exception, and the

cour t revoked Garza’s supervised release. Although the advisory Sentencing Guidelines range was three to nine months of imprisonment, the district court imposed a sentence of twenty-four months in prison, to be followed by a twentyfour month term of supervised release. In the course of imposing this sentence, the district cou r t extensively discussed the rehabilitation opportunities that prison terms of varying lengths would afford Garza. This appeal followed. II A threshold question in this appeal is whether 18 U.S.C. § 3582(a) applies to revocation sentences. In Tapi a , the Supreme Court held that, under § 3582(a), a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise t o promote rehabilitation.” However, Tapia was an a p p eal of a sentence imposed for the 3 

### initial conviction, and although our court has assumed that its holding extends

Tap ia , 131 S. Ct

. at 2393. 2
Id. 3


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### No. 11-10543

to the revocation context, we have never so held. T h e Government concedes 4 

### that Tapia applies to revocation sentences, and we agree. In so holding, we join the uniform post- Tapiacase law in our sister circuits. 5 

### The factors s e t f

orth in 18 U.S.C. § 3553(a) that a district court should consider in imposing a sentence a p ply when supervised release is revoked. 6 

### These factors include “the need f o r t h e s e n tence imposed

. . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” However, with regard to 7 

### determining if imprisonment should be imposed as part of a sentence and if so, the length of the term of imprisonment, § 3582(a) directs a distric t c o u r t to

“ r e cogniz[e] that imprisonment is not an appropriate means of promoti n g correction and rehabilitation.” 8 

### The wording and context of § 3582(a) per suades us t h a t it applies in the

r e vocation context. First, in the same sentence in § 3582(a) that admo n i s h e s

E.g. , Uni ted Sta tes v. Re ces key , 699 F.3d807 , 810 (5t h Cir

. 2012)

. 4
Uni ted States v. Benne tt , 698 F.3d 194 (4t h Cir. 2012) ; Uni ted States v. Me ndio la , 696 5 F.3d 1033 (10t h Cir. 2012) ; Uni ted States v. Ta y l o r , 6 7 9 F.3d 1005 (8t h Cir. 2012) ; Uni ted States v. Gr ant , 664 F.3d 276 (9t h Cir. 2011) ; Uni ted States v. Mo lignaro , 649 F.3d 1 (1s t Cir. 2011) (S oute r, J. (Ret .) , sit ting by des ignati on) ; see al so Uni ted States v. Jac kson , 477 F. App ’x 377 (6t h Cir. 2012) (ap plying Tap ia to a revoc atio n se nten ce wi thou t dis cus sio n of its app lica bilit y); Uni ted States v. Wil li am s , 467 F. App ’x 59 (2d Cir. 2012) (as sum i ng wi thou t dec idi ng t hat Tap iaappli es t o r evoca tio n s ente nces ). The only outl ier wa s our ow n d ecis ion in Uni ted States v. Brel and , 647 F.3d 284 (5t h Cir. 2011) , wh ich the Sup rem e Court vacat ed, 132 S. Ct. 1096 (201 2) (m em .) , and in wh ich cas e we ulti mat ely rem ande d for res e n t e n cing, 463 F. App ’x 376, 376- 77 (5t h Cir. 2012)

. Altho ugh we need not tod ay revis it our pr ior dec isi on in Uni ted States v. Gi ddings , 37 F.3d 1091 (5t h Cir. 1994) , wh ich held that § 3582( a) doe s not app ly to man dat ory revoc atio n wh ile expr es sly res erving the ques tio n of wh ethe r the st atut e app lied to dis cre t ionar y revoc atio n, we note that Tap ia cas ts sub st antia l doub t on the cont inuing vitali ty of Gi ddings ’s ho ldi ng. See 18 U. S. C. § 3 553( a)( 4)( B). 6
Id

. § 3 553( a)( 2)( D)

. 7
Id. § 3582( a). 8


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### No. 11-10543

courts that they cannot use imprisonment as a means of correction or

r e h abilitation, Congress directs courts to consider the factors set forth i n § 3553(a) “to the e x t e n t t hey are applicable.” As already noted, a sentence 9 

### imposed for a violation of supervised release comes within § 3553(a), and a court is directed by § 3553(a)(3) and (a)(4)(B) to con s i d e r t h e kinds of sentences available and the applicable sentencing range established by the Guidelines or the Commission’s policy statements. This would include a term of 1 0 

### imprisonment, if available. It therefore stands to reason that the subsequent part of the phrasing in § 3582(a) that prohibits consideration of rehabili tative needs applies to a prison term imposed upon revocation of supervised release. Second, § 3582(a) i s q uite clear: “ imprisonment is not an appropriate

means of pro m o t i n g c o r r e c t i o n a nd rehabilitation.” The phrasing of this statute 1 1 

### does not suggest that it applies only when a sent e n c e i s i m posed for the underlying conviction but that in the revocation context, promoting rehabilitation can be considered in deciding whether to impose a prison sentence and if so, the length of confinement. While it is true that the statute 1 2

Sec tio n 3582( a), tit led “Fac tor s to be cons ide red in im pos ing a ter m of im pr iso nme nt, ” 9 st ates as f

ollo ws : The cour t, in det erm ining wh ethe r to im pos e a ter m of im pr iso nme nt, and, if a ter m of imp ris onm ent is to be imp os ed, in deter mi ning t he length of the ter m, sha ll cons ide r the fac tor s se t for th in se cti on 3553( a) to the exten t that they are app lica ble, rec ognizing that im pr iso nme nt is not an app rop riat e me ans of pr om oti ng cor rec tio n and reha bil itat ion. In det erm ining wh ethe r to mak e a r e c o mm enda tio n conc erni ng the type of pr iso n fac ilit y app rop riat e for th e def enda nt, the cour t sha ll co n s i d e r any per tine nt pol icy st atem ents iss ued by the Sent enci ng Com mi ss ion pur sua nt to 28 U .S .C. 994 (a) (2)

. Id.
Id

. § 3 553( a)( 3), ( a)( 4)( B).

1 0
Id. § 3582( a) (em phas is add ed)

. 1 1
Uni ted States v. Bennett , 698 F.3d 194 , 197 (4t h Cir

. 2012) ; Uni ted Sta tes v. Gra nt , 1 2 664 F.3d 276, 281 (9t h Cir. 2011) ; Uni ted States v. Mo lignaro , 6 4 9 F

. 3 d 1 , 2 (1s t Cir. 2011) (S oute r, J. ( Ret. ), s itt ing by des ignati on) ; see al so Uni ted States v. Me ndio la , 696 F.3d 103 3,


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### No. 11-10543

authorizing revocation of supervis e d r e lease, 18 U.S.C. § 3583(e), speaks in terms of “requir[ing] the defendant to serve in prison ” rather than “imposing

. . . imprisonment ” as in § 3582(a), we agree with the Court of Appea l s for the 1 3 

### Fourth Circuit that this is a “distinction in search of significance. ” A s t h e 14 

### Fourth Circuit noted, this is particularly true in light of the Supreme Court’s adoption of a broad definition of “imprisonment” as “[t]he state of being confined

or a period of c o n f

i nement.” “The Tapia Court’s unanimous conclusion was

1 5 

### that where actual incarceration is involved, Congress did not intend for courts to consider rehabilitation in determining the fact or length of the sentence.” 1 6 

### Third, Tapia ’s reasoning was not limited to the text of § 3582(a). “Equally illuminating,” the Court explained, “is a statutory silence—the absen c e o f any provision g r a n t ing courts the power to ensure that offenders participate in prison rehabilitation programs.” Unlike the statutes governing p r o bation or 1 7 

### supervised release, in which Congress gives courts a u t h o r i t y to order
p a r t i c i p a t i o n i n r e h ab i l i t a t i o n p r ograms, the provisions governing the i m p o s i t i o n of prison terms g r a n t courts no such authority. “That incapacity speaks 1 8

1043 (10t h Cir. 2012) (G ors uch, J., conc urr ing) (“ From [ Tap ia ], it fol low s ineluc tabl y (p lainly) that § 3582( a) p r o h i bits a cour t fr om relyi ng on reha bilit atio n cons ide rat ions any tim e it choo se s t o s end so me one to a ter m of conf inem ent in a fed eral pr iso n
. . . .” (c itin g Tap ia v. Uni ted Sta tes , 131 S. Ct

. 2382, 239 1 ( 2011) ))

.

Com pa re 18 U. S. C. § 3583( e)( 3) (em phas is add ed) , wi th id. § 3582( a) (em phas is 1 3 add ed)

. Benne tt , 698 F.3d at 197; see al so Mo l ig n a r o , 649 F.3d at 2-3 (d ism iss ing a sim ilar

1 4 argum ent bas ed on this d ist inct ion)

.

Benne tt , 698 F.3d at 198 (al ter atio n i n o riginal ) (quo ting Tap ia , 131 S Ct. at 2389) 1 5 (int erna l q uota tio n m ark s om itt ed)

.

Id. at 197 n. *. 1 6 Tap iav
. Uni ted Sta tes , 131 S. Ct

. 2382, 239 0 ( 2011)

. 1 7
Id. 1 8


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### No. 11-10543

volumes. It indicates that Co n g r e ss did not intend that courts consider offenders’ rehabilitative needs when imposing prison sentences.” 1 9 

### As J U S T I C E 

### S O U T E R 

### , writing for the Court of Appeals for the First Circuit, observed, “There is nothing tentative about this reasoning: if Congress wanted judges to consider rehabilitation, it gave judicial authority to control [whether

a defendant participated in such a program].” Since there is a similar absence 2 0 

### of authority f

o r district courts to mandate participation in rehabilitation
programs while serving a term of imprisonment on revocation, we are bound to conclude that a sentencing c o u rt may not consider rehabilitative needs in imposing or lengthening any term of imprisonment. III Having resolved that 18 U.S.C. § 3582(a) applies to a revocation sentence,

we must determine whet h e r the district court improperly considered Garza’s rehabilitative needs in imposing a prison sentence. We conclude, based on the district court’s comments at sentencing, that it did so in this case. As noted, § 3582(a) proscribes the use of a defendant’s rehabilitative needs in imposing a prison term or in calculating the length of the defendant’s prison sentence. This d o e s n o t m ean, however, that a district court may make no reference to the rehabilitative opportunities available to a defendant

. T o the contrary, in Tapia the Court made clear that “[a] court c o m m i t s n o error by d i s c u ssing the opportunities for rehabilitation within prison or the benefits o f

s p e cific treatment or training programs.” A district court also may legitimat e l y 2 1 

### “urge the [Bureau of Prisons] to place an o f f e n d e r in a prison treatment

Id. at 239 1. 1 9
Uni ted States v. Mo lignaro , 649 F.3d 1, 5 (1s t Cir. 2011) (S oute r, J. (Ret .) , sit ting by 2 0 des ignati on)

.

Tap ia , 131 S. Ct

. at 2392. 2 1


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### No. 11-10543

program.” However, when the district court’s concern for rehabilitative needs

2 2


### goes further—when the sentencing record discloses “that the court may have

c a l c ulated the length of [the defendant’s] sentence to ensure that she rece i v e certain rehabilitative services” —§ 3582(a) has been violated. 2 3 

### O u r limited precedent post- Tapia has described the distinction between legitimate commentary and inappropriate consideration a s w hether rehabilitation is a “secondary concern” or “additional justification” (permissible)

as opposed to a “dominant factor” (impermissible) informing the district court’s decision. For example, in United States v. Receskey , the di s t r i c t court

2 4 2 5 

### discussed the potential rehabilitativ e o p p o r t u n i t i e s a v a i lable to a defendant only after discussing its indepe n d e n t , u n r e l a t ed reasons for selecting the length of the defendant’s sentence. This court held that the sentencing court had committed 2 6



### no Tapia error. By contrast, in United States v. Broussard , the district court 2 7 2 8 

### first described in detail the need to incarcerate a de f e n d a n t for a long period

Id. 2 2
Id. at 239 3. 2 3
Uni ted States v. Rec esk ey , 699 F.3d 807, 810, 812 (5t h Cir. 2012) (int erna l quot atio n 2 4
mar ks om itt ed)

. 699 F. 3d 807. 2 5
Rec esk ey , 699 F.3d at 808 -09. 2 6
Id. at 812. Sim ilar cas es fr om othe r cir cuit s inclu de U n ited States v. Gi ll ia rd , 671 2 7 F.3d 255 (2d Cir. 2012) (d ist ric t cour t dis cus se d reha bilit atio n but st ated that , at bott om , any argum ents f

or a l ow er se nten ce we re “out we ighed by wh at [t he cour t] cons ide r[ ed] to be the high, high lik eliho od of rec idi vism and the se riou s natur e of t h e cri me com mi tte d and the cri me s com mi tte d in the past ” (al ter atio ns in origi nal) ), Uni ted States v. Luca s , 670 F.3d 784 (7t h Cir. 2012) (d ist ric t cour t “br ief ly me ntio ned” reha bilit atio n pr ogram s aft er im pos ing the
se nten ce) , and Uni ted States v. Pic kar , 666 F.3d 1167 (8t h Ci r
. 2012) (d ist ric t cour t em phas ized that the def enda nt need ed to be det err ed and wa s a danger to the publ ic, and then note d that a longer s ente nce wo uld pr ovide t he def enda nt wi th need ed car e a nd tre atm ent)

. 669 F. 3d 537 (5t h Cir

. 2012)

. 2 8


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### No. 11-10543

given the seriousness of his offense and the need to deter those who w o u ld
engage in similar conduct. The court, however, then went on to describe the 2 9 

### defendant a s “ s i c k i n the head” and as “need[ing] help badly,” among other things, and noted that although avoiding sentencing disparaties across cases is

a goal in sentencing, it was “not as compellin g a s t h e need to incarcerate this individual for the treatment that he needs.” This court held that the district 3 0


### court improperly considered the defendant’s rehabilitative needs in arriving at the length of his sentence. 3 1 

### The record in the present case reflects that after noting generally that the Guidelines range of three to nine months of imprisonment “would not begin to address” Garza’s conduct and “wouldn’t satisfy the objectives applicable to revocation,” the court opined that Garza “should be required [or] a t l e a s t be given an opportunity to participate in t h a t r e s i d e n t i a l i n s t i t u tion drug treatment program” in order to “get [Garza] straightened out.” The court then embarked

on a d e t a i led discussion with the probation officer and Garza’s attorney regarding the rehabilitation programs that would be available to Garza if he

Brous sa rd , 669 F.3d at 551

. 2 9
Id. at 551 -52 (int erna l q uota tio n m ark s om itt ed)

. 3 0
Id. at 552. Sim ilar cas es fr om othe r cir cuit s inclu de Uni ted States v. Me ndio la , 696 3 1 F.3d 1 0 3 3 ( 1 0 t h Cir. 2012) (d ist ric t cour t st ated that it wa s se nten cing the def enda nt to tw enty- fou r mo nths s o he could part icip ate in the Bureau of Pr iso ns’ d rug pr ogram ), Uni ted States v. Tay lor , 679 F.3d 1005 (8t h Cir. 2012) (d ist ric t cour t st ated that it wa s se nten cing the def enda nt to tw enty- fou r mo nths so he coul d par tic ipat e in a par tic ular p r o gram availabl e thr ough the Bureau of Pris ons ), Uni ted States v. Gr ant , 664 F.3d 276 (9t h Cir. 2011) (d ist ric t cour t em p h a s i z e d t h a t the def enda nt need ed a se nten ce of tw enty- fou r mo nths to be plac ed into reha bilit atio n pr ogram s) , and Uni ted States v. M o l ig n a r o , 649 F.3d 1 (1s t Cir. 2011) (d ist ric t cour t st atedgene rall y t hat the Gu ide lines r ange wo uld not addr es s the def enda nt’ s cond uct and then im pos ed a longer se nten ce so that the def enda nt c o u l d p a r t i cip ate in a reha bilit atio n p rogr am)

. 

### 8 Case: 11-10543 Document: 00512132401 Page: 8 Date Filed: 02/01/2013

### No. 11-10543

w e re sentenced to twenty-four months or thirty months in prison. D u r i n g 3 2

The brea dt h and dep th of this dis cus si o n r e f l ect s that reha bilit ative opp ort uniti es 3 2
we re cons ide red by the cour t in det erm ining the length of t he pr iso n t erm t o b e s erved : THE COU RT: I’m im pr es se d wi th the length o f t im e you we nt on your sup ervis ed rele ase bef ore you st art ed having pr oblem s. So you can do it, it look s lik e, if you w ork ed on it, but I think you need s om e h elp

. GARZA: Y es , Yo ur Ho nor. THE CO URT: Ms. Roper [ sic ], if he has a 30-m onth s ente nce, will they let him par tic ipat e in the [lo ng-t erm R D A P ] pr ogram , or is that not long enough? PROBATIO N OFFICER: Yo ur Ho nor, it coul d be enough tim e. I belie ve if the re w ere only 24 months , he w ould no t be eligibl e at all. Proba bly on a 30
mo nth, he w ouldbe abl e t o ge t his nam e o n t he lis t. And I do se e here in the rec ord wh ere he did par tic ipat e in t h e RDAP pr ogram and did fine in that pr ogram wh ile he wa s wi th the Bureau of Pris ons pr evious ly. In add itio n, the re are ot her pr ogram s that he can tak e otherthan the long ter m one. There ar e o ther c ours es he c an t ak e a s we ll. T H E COU RT: That wo uld be app rop riat e if he had, say, a 24 m o n t h
se nten ce? Are ther e s om e p rogr ams ? PROBATIO N OFFICER: He coul d pr obably t a k e the 40-h our pr ogram and als o tak e the rela ps e pr event ion pr ogram and foc us on how to rem ain clea n. I m ean, he ’s d one it in the pas t lik e we ’ve se en, but he need s to foc us mo re on the rela ps e p revent ion. THE COU RT: Well , d o you think thos e pr ogram s you just me ntio ned
wo uld be help ful for hi m? PROBATIO N OFFICER: Ye s, I belie ve so
. The RDAP pr ogram , the long ter m [s ic] is act ually an inpa tie nt pr ogram wi thin the ins tit utio n wh ere they are hous ed in the sam e dor mi tor ies as all thos e going thr ou g h an inpa tie nt pr ogram
. THE COU RT: And he’s be en thr ough that ? PROBATIO N OFFICER: And he ’s be en thr ough that

. THE COU RT: Ok ay. We ll, I’m goi ng t o— GARZA’ S ATTORN EY: Y our Ho nor, m ay I inte rjec t? THE COU RT: Ye s. GARZA’ S ATTORN EY: It wa s my unde rs tand ing that Mr

. Ga rza wo uld b e e l i g i b le for the RDAP pr ogram bas ed on a se nten ce of 24 mo nths

. I’m not aw are of it being 30 m onth s. I tho ught it wa s 24 m onth s. THE COU RT: You ’r e ta lk in g ab ou t th e re si de ntial ins tit utio nal pr ogram , wh ateve r they call it ? 

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### No. 11-10543

this colloquy, the court made clear that rehabilitation was a standard factor it considered, stating, “[F]or a long time, years, I thought 24 months was enough [to get a defendant into a particular program], and I would sentence people to 24 months thinking that would be enough, and they didn’t get to participate in the program.” Finally, after learning that a twenty-four month sentence would allow Garza to participate in programs that the probation officer thought would help Garza, the court announced its sentence as follows: I’m going to sentence this defendant to 24 months. I’m not going to g i v e h im enough time to participate in the long term progra m , beca u s e I don’t think he really needs that again. I think some of t h e s e shorter term programs ought to be enough for him.

. . . I’m hoping a 24 month t e r m of imprisonment followed by a 24 month term of supervised release will be enough. I hope so because I don’t want him to be up here again. The court offered no additional justifications for the sentence it imposed. The re c o r d makes clear that Garza’s rehabilitative needs were the dominant factor in the court’s mind. Although the record suggests that the court might have been inclined to impose some upward departure in light of Garza’s conduct, it relied only on Garza’s rehabilitative needs in fixing the length of Garza’s sentence. If the only factor emphasized by the co u r t is rehabilitation,

GARZA’ S ATTORN EY: Ye s, You r Ho nor. I just wa nted to poi nt out that i t wa s my unde rs tand ing that the def enda nt need ed to be se nten ced t o a mi nim um of 24 m onth s to be eligibl e f or the pr ogram and

— THE COU RT: Yo u’re talk ing about wh at we ref err ed to as the long- ter m pr ogram ? GARZA’ S ATTORN EY: Y es
. That ’s m y und ers tand ing, Yo ur Ho nor. THE COU RT: Ok ay. Well , I think your unde rs tand ing is wr ong beca use we ’ve been inform ed by the Burea u of Pris ons that that ’s not enough tim e. .
. . [Y]ou may wa nt to doub le chec k on that , but for a lon g t i m e , y e a r s, I thou ght that 24 mo nths wa s enough, and I wo uld se nten ce peo ple to 24 mo nths think ing that wo uld be enough, and they did n’t ge t to par tic ipat e in that pr ogram
. We fina lly explo red and dis cover ed the reas on. It just wa sn’ t enough tim e.
. . . 

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### No. 11-10543

it a fortiori cannot be that rehabilitation was mere l y a secondary concern. Additionally, the court made clear that it was its standard practice to tailor the prison sentence to the availability of rehabilitation programs. In light of these facts, the district court committed error under Tapia

. IV Having found error, we must determine whether that error is reversible. The Supreme Court had not issued Tapia at the time Garza’s sentence was imposed. Garza made n o objection to the district court’s consideration of rehabilitative programs in deciding the term of imprisonment. Accordingly, we may vacate the sentence only if the error is plain. 3 3 

### When reviewing for plain error, we apply the following four-pronged test: (1) there must be an error or defect—some sort of [d]eviation f r o m a legal rule—that has not been intentionally rel i n q u i shed or abandoned; (2) the legal error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected the appellant’s substantial rights; and (4) if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—di scretion which ought to be exercised only if the error seriously affect[s] the fairness, integr i t y or public reputation of judicial proceedings. 3 4 

### As we have explained, Garza has demonstrated that the district court erred. We therefore are concerned only with second, third, and fourth prongs. With respect to the second prong, we make the determination based on the state of the law a t the time of the appeal, not at the time of trial. Although, 3 5 

### until today, this court had not definitively answered whether § 3582(a) applies

Uni ted Sta tes v. W

hitel aw , 580 F.3d 256 , 259- 60 ( 5th Cir. 200 9). 3 3
Uni ted States v. Es c a l a n te -Re yes , 689 F.3d 415, 419 (5t h Cir. 2012) (en banc) 3 4 (al ter atio ns in origi nal) (quo ting Pucke tt v. Uni ted States , 556 U. S. 129, 135 (200 9)) (int erna l quot atio n m ark s om itt ed)

.

Id. at 423

. 3 5


### 11 Case: 11-10543 Document: 00512132401 Page: 11 Date Filed: 02/01/2013

### No. 11-10543

to revocation prison sentences, the post- Tapia case law in our sister circuits has uniformly held that Tapia applies to revocation sentences. The error was clear 3 6 

### or obvious by the time of this appeal. 3 7 

### There is little question that the error affected Garza’s substantial rights. Under this prong, “the defendant must demonstrate that the error affected the outcome of the district court proceedings.” “In the context of sentencing, we 3 8 

### ask ‘whether the error inc r e a sed the term of a sentence, such that there is a reasonable probability of a lower sentence on remand.’” In this case, the prison 3 9


### term suggested by the Guide l i n es was three to nine months, and the district court imposed a prison term of twenty-four months, a substantial upward departure. Although the court arguably indicated that it might have imposed

s o me above-Guidelines sentence due to Garza’s conduct, it focused only o n t h e rehabilitative options that different sentences would afford Garza in fixing the length of Garza’s sentence. The combination of th e d i sparity between the Guidelines r a n ge and the court’s statements at sentencing are “sufficient to undermine our confidence that the district court would have imposed the same

Uni ted States v. Benne tt , 698 F.3d 194 (4t h Cir. 2012) ; Uni ted States v. Me ndio la , 696 3 6 F

. 3 d 1 0 3 3 (10t h Cir. 2012) ; Uni ted States v. Tay lor , 679 F.3d 1005 (8t h Cir. 2012) ; Uni ted States v. Gr ant , 664 F.3d 276 (9t h Cir. 2011) ; Uni ted States v. Mo lignaro , 649 F.3d 1 (1s t Cir. 2011) (S oute r, J. (Ret .) , sit ting by des ignati on) ; see al so Uni ted States v. Jac kson , 477 F. App ’x 377 (6t h Cir

. 2012) ; Uni ted Sta tes v. W il li am s , 467 F. App ’x 5 9 ( 2d Cir. 201 2).
Me ndio la , 696 F.3d at 1042; Tay lor , 679 F.3d a t 1 0 0 7 ; Gr ant , 664 F.3d at 279; 3 7 cf

. Uni ted States v. Sal ina s , 480 F.3d 750, 759 (5t h Cir. 2007) (“ Becaus e this cir cuit ’s law
rem ains unse ttl ed and the other fe der al ci rcu its hav e rea che d div erge nt conc lus io n s on this is sue
. . . , Sali nas canno t sat isf y the se c o n d p r o n g o f t h e plai n err or tes t— that the err or be clea r unde r exis ting law .” (em phas is added ) (c itin g Uni ted States v. Bennett , 469 F.3d 46, 50 (1s t Cir. 200 6), and Uni ted Sta tes v. T hom ps on , 82 F. 3d 849, 856 ( 9th Cir. 199 6)) ).
Uni ted States v. Brous sa rd , 669 F.3d 537, 553 (5t h Cir. 2012) (c itin g Pucke tt , 556 U. S. 3 8 at 135 (200 9))

.

Esca la nte-R eye s , 689 F.3d at 424 (quo ting Uni ted States v. Ga rci a- Qu inta nil la , 574 3 9 F.3d 295 , 304 (5t h Cir

. 2009) ).


### 12 Case: 11-10543 Document: 00512132401 Page: 12 Date Filed: 02/01/2013

### No. 11-10543

sentence absent the error.” We conclude that Garza’s substantial rights were 4 0 

### violated. Finally, w e must assess whether the error in this case so “affects ‘the fairness, integrity, or public reputation of judicial proceedings’” that we should exercise our discretion to correct it. In making that determination, we do not 4 1



### assume that this prong is autom a t i c a l l y satisfied if we find prejudicial error under the third prong. With that caveat in mind, and following thi s C o u r t ’ s 4 2



### own precedent in United States v. Escalante-Reyes as well as that of our sister 4 3 

### circuits, we believe that this case merits reversal.

4 4 

### * * * For the foregoing reasons, Garza’s sentence is VACATED and the case is REMANDED for resentencing consistent with this opinion.

Id. at 425

. 4 0
Id. ( quot ing Pucke tt , 556 U. S. at 135 ). 4 1
Uni ted Sta tes v. Re

yna , 358 F.3d 344 , 352 (5t h Cir

. 2004) ( en banc)

. 4 2

689 F. 3d 415, 425 -26. 4 3
Uni te d States v. Me ndio la , 696 F.3d 1033, 1042 (10t h Cir. 2012) ; Uni ted States v. 4 4 Tay lor , 679 F.3d 1005, 1007 (8t h Cir. 2012) ; Uni ted States v. Gr ant , 664 F.3d 276, 282 (9t h Cir. 2011) 

### 13 Case: 11-10543 Document: 00512132401 Page: 13 Date Filed: 02/01/2013

### No. 11-10543

CATHARINA HAYNES, Circuit Judge, dissenting: I respectfully dissent. I agree that Tapia ap p l i e s to sentences of imprisonment upon revocation of supervised release. I disagree that the district court here lengthe n ed the sentence of imprisonment in order to provide rehabilitation, which is the error Tapiacondemns. United States v. Receskey , 1 

### 699 F.3d 807, 810 ( 5 t h Cir. 2012) (“ Tapia , however, made clear that district courts do not err by discussing the rehabilitative opportunities within prison.”). After beginning his superv i s e d r e l e a s e f o l l o w i n g a c o n v i c t i o n f

o r p o ssession of methamphetamine with intent to distribute, Garza does not dispute that he regressed back into drug use and other violations of his supervised rele a s e conditions. At his sentencing upon revocation of supervised release, the district court engaged in a lengthy colloquy with the defendant and his lawyer about the defendant’s experience on supervised release, what led to the conduct that gave rise to the revocation, and his prior periods of confinement. After that colloquy, in which th e court observed that a prior sentence had been very lenient, the court stated: “I’ve considered the policy statement range of three to nine months and that would not begin to address your conduct. It wouldn ’ t s a t i s f y the objectives of sentencing applicable to revocation in my view.” The court then addressed the issue of treatment programs in prison, asking if a 30-month sentence would be long enough to allow partici p a t i o n in such a program. The probation officer indicated: “[I]t could be e n o u g h t ime. I believe if there were only 24 months, he would not be eligible at all. Probably on

a 30 month, he would be able to get his name on the list.” The probation officer and th e d i s t r ict judge then discussed the availability of “shorter” courses;

Not hing in the rec ord sug g e s t s t h a t the dis tri ct cour t’s cons ide rat ion of wh ethe r to 1 im pos e a sent ence of impr iso nme nt at all— the ot her typ e of Tap iaerror —w as inf luenc ed by any c ons ide rat ion of reha bilit atio n. 

### 14 Case: 11-10543 Document: 00512132401 Page: 14 Date Filed: 02/01/2013

### No. 11-10543

however, nothing t y i n g the length of those “shorter” courses to the length of imprisonment was discussed. 2 

### At that point, the defendant’s attorney interjected that he did not think 30 months were required to complete a “long-term” program; 24 months would be enough. Thus, not only did the defendant’s attorney not object to consideration of prison treatment programs, he in fact furthered and seemed to agree with that consideration. Had the district court then pronounced a sentence of 24 months, the majority opinion’s position would seem accurate. However, at that point, the district judge expressly disagreed with the defense attorney a b o u t 24 months being adequate to engage in such a program. The court then ultimately decided to impose a 24-month sentence. The import of this discussion is that the district court considered lengthening the defendant’s sentence to allow for treatment in
p r i s o n ( i.e. “rehabilitation”) but decided not to do so. That conclusion is buttressed by the signed judgment which provides as a condition of supervised release that the defendant shall undergo mental health and drug treatment but does not so much as recommend to the Bureau of Prisons any treatment while imprisoned. On plain error review, given the totality of the record, I cannot agree that the district court erred. Accordingly, I would not reach the other prongs of plain error review. Therefore, I respectfully dissent.

The only tim e per iod me ntio ned for the “s hort er” cour se s wa s that one of the cour se s 2
wa s a “ 40-h our cour se .” 

### 15 Case: 11-10543 Document: 00512132401 Page: 15 Date Filed: 02/01/2013