FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50248

Plaintiff-Appellee, D.C. No.

v.  3:08-CR-00249-

BTM-2 ALEJANDRA TAPIA,

Defendant-Appellant. OPINION 

On Remand from the United States Supreme Court

Argued and Submitted

November 10, 2011—Pasadena, California

Filed December 8, 2011

Before: Mary M. Schroeder and Stephen Reinhardt,

Circuit Judges, and Henry E. Hudson, District Judge.*

Opinion by Judge Reinhardt

*The Honorable Henry E. Hudson, District Judge for the U.S. District

Court for Eastern Virginia, sitting by designation. 

20893
COUNSEL

Arnold Dale Blankenship, Assistant U.S. Attorney, San

Diego, California; Bruce R. Castetter, Assistant U.S. Attorney, San Diego, California; Jaime D. Parks, Assistant U.S.

Attorney, San Diego, California, for the plaintiff-appellee.

Michelle Betancourt, Federal Defender, San Diego, California; Doug Keller, Federal Defender, San Diego, California;

Reuben Camper Cahn, Executive Director, Federal Defenders

of San Diego, San Diego, California; James Fife, Federal

Defender, San Diego, California, for the defendant-appellant.

OPINION

REINHARDT, Circuit Judge:

In sentencing Alejandra Tapia (“Tapia”) following her conviction on immigration and bail-jumping charges, the district

judge made a number of comments suggesting that the length

of the sentence he imposed was determined at least in part by

a desire to ensure that Tapia received drug treatment while in

UNITED STATES v. TAPIA 20895
prison. We affirmed Tapia’s sentence, but the Supreme Court

reversed, remanding to this court to determine whether Tapia

is entitled to relief despite her failure to object to her sentence

when imposed. Tapia v. United States 131 S.Ct. 2382, 2391-

93 (2011). We hold that the district court’s consideration of

Tapia’s rehabilitative needs in determining her sentence constituted plain error. We therefore vacate the sentence and

remand for resentencing.

I.

Border patrol agents arrested Tapia and Tinamarie Torres

Debenedetto after they attempted to cross into the United

States from Mexico with two undocumented aliens concealed

in their car. Tapia was indicted for bringing an illegal alien

into the country without presentation and for financial gain in

violation of 8 U.S.C. §§ 1324(a)(2)(B)(ii) and (iii), and was

released on her own recognizance. When she did not attend

a motion hearing, a superceding indictment was issued

encompassing the additional charge of knowing failure to

appear in violation of 18 U.S.C. § 3146. A federal jury convicted her of the immigration and bail-jumping charges. 

At sentencing, the government sought a sentence of 63

months imprisonment. After the district judge determined that

the Guidelines sentence range for Tapia was 41 to 51 months,

he imposed a sentence of 51 months. In complying with his

obligation to explain his reasons for imposing a sentence of

this length, see Gall v. United States, 552 U.S. 38, 49-50

(2007), the district judge repeatedly invoked Tapia’s struggles

with substance abuse, and her need to be enrolled in a drug

treatment program. At no point in these proceedings did Tapia

object to the sentence imposed. She appealed, however, challenging the district judge’s consideration at sentencing of her

need to receive drug treatment. We affirmed, citing circuit

precedent holding that a district court could properly consider

the need for rehabilitation in determining the length of an

offender’s prison term. United States v. Tapia, 376 Fed.

20896 UNITED STATES v. TAPIA
Appx. 707 (9th Cir. 2010) (citing United States v. Duran, 37

F.3d 557, 561 (9th Cir. 1994)).

The Supreme Court unanimously reversed. Tapia, 131

S.Ct. at 2385. The Court concluded that 18 U.S.C. § 3582(a)

“precludes sentencing courts from imposing or lengthening a

prison term to promote an offender’s rehabilitation.” Id. at

2391.1 The Court declined, however, to vacate Tapia’s sentence. Id. at 2393. It observed only that the district judge’s

comments at sentencing “suggest[ed] the possibility that

Tapia’s sentence was based on her rehabilitative needs,” and

remanded the case “for further proceedings consistent with

[its] opinion,” leaving it “to the Court of Appeals to consider

the effect of Tapia’s failure to object to the sentence when

imposed.” Id. at 2392-93.

II.

Where, as here, a defendant did not raise her objection to

her sentence before the district court, we review for plain

error. See Fed R. Crim. Proc. 52(b); United States v. Waknine,

543 F.3d 546, 551 (9th Cir. 2008). Under the plain error standard of review, the appellant must show that “there is (1) error

that is (2) plain, (3) affects substantial rights, and (4) seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Charles, 581 F.3d 927, 933

(9th Cir. 2009) (quoting United States v. Cruz, 554 F.3d 840,

845 (9th Cir. 2009)) (internal quotation mark omitted).2

1The relevant statutory language is as follows: 

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth

in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting

correction and rehabilitation.

18 U.S.C. § 3582(a) (emphasis added). 

2Tapia contends that, because the question on appeal is “purely one of

law,” and the government would “suffer no prejudice as a result of the

UNITED STATES v. TAPIA 20897
III.

[1] The government concedes that Tapia has met the first

two prongs of the plain error standard: the district court erred

in considering Tapia’s correctional and rehabilitative needs at

sentencing, and that error was plain. The question is, therefore, whether Tapia has demonstrated that this error “affected

substantial rights” and “seriously affected the fairness, integrity or public reputation of judicial proceedings.” We conclude that she has.

A.

[2] To show that the district court’s error affected her substantial rights, Tapia must demonstrate “a reasonable probability that [she] would have received a different sentence” if

the district court had not erred. Waknine, 543 F.3d at 55;

United States v. Dominguez-Benitez, 542 U.S. 74, 81-82

(2004); see United States v. Ameline, 409 F.3d 1073, 1078

(9th Cir. 2005) (en banc). A “reasonable probability” is, of

course, less than a certainty, or even a likelihood. See

Dominguez-Benitez, 542 U.S. at 86 (Scalia, J., concurring in

the judgment) (observing that the “reasonable probability”

standard is more “defendant-friendly” than the “more likely

than not” standard). This court has held that the standard can

be met even without direct evidence of what sentence would

have been imposed if not for the district court’s error. See,

e.g., United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir.

2008) (although the district court’s intentions were “difficult

to discern,” its erroneous calculation of an offender’s Criminal History Category “could easily have . . . led [it] to impose

an additional one month of imprisonment,” and thus affected

substantial rights).

failure to raise the issue in the trial court,” we need not apply the restrictive plain error standard. See United States v. Evans-Martinez, 611 F.3d

635, 642 (9th Cir. 2010). Because we hold that Tapia is entitled to relief

even under the plain error standard, we need not address this contention.

20898 UNITED STATES v. TAPIA
We conclude there is a “reasonable probability” that the

district judge’s consideration of Tapia’s rehabilitative needs

influenced the length of the sentence he imposed. The district

judge said the sentence had to be “be sufficient to provide

needed correctional treatment,” which he determined to be

“the 500 Hour Drug program.” He stated that one of the factors that “affect[ed]” the length of the sentence he chose was

“the need to provide treatment,” and that a lesser sentence

“would not deter [Tapia] and provide for sufficient time so

she could begin to address these problems.” He added that the

sentence he imposed was “the least sentence that can be

imposed to effect all these reasons,” with “all these reasons”

clearly including both deterrence and rehabilitation. Although

some of these statements reveal that the district judge was

also concerned with deterrence, that does not mean that Tapia

has not established a “reasonable probability” that his consideration of her rehabilitative needs played a part in his decision

to impose the sentence he did; indeed, § 3582(a) contemplates

that multiple “factors” will have an impact on a district

court’s determination of the length of an offender’s sentence.

18 U.S.C. § 3582(a). The perceived need for time to ensure

rehabilitative treatment was undoubtedly a factor in the district judge’s determination of the length of Tapia’s sentence.

Moreover, even if only one of the factors cited by the district

judge had ultimately affected the length of the sentence, the

statements relating to the drug rehabilitation program establish a “reasonable probability” that it would have been rehabilitation.3

3The government contends that the district judge’s statements at sentencing should not be taken at face value, as a 51-month sentence was

unnecessarily long if he was motivated by a desire to ensure that Tapia

would receive rehabilitative treatment while in prison. The 500 Hour Drug

Program in which the district judge recommended that she enroll takes

less than 30 months to complete. See Minotti v. Whitehead, 584 F. Supp.

2d 750, 755 (D.Md. 2008). There are a number of considerations, however, that might explain why the district judge may have thought that a 51-

month sentence was necessary for Tapia to be able to participate in the

program. First, Tapia had already been in federal custody for 193 days at

UNITED STATES v. TAPIA 20899
[3] There is little reason to think that the district judge did

not mean what he said in sentencing Tapia. He stated that “the

need to provide treatment” was one of the considerations that

“affect[ed]” the length of the sentence he imposed. We take

him at his word, and hold that Tapia has shown that there is

a “reasonable probability that [she] would have received a different sentence” but for the district judge’s impermissible

consideration of this factor. Waknine, 543 F.3d at 554.

the time of her sentencing, and thus could be expected to serve only an

additional 45 months of the 51-month sentence that the court imposed. See

18 U.S.C. § 3585(b). Second, the district judge may have taken into

account that Tapia could experience delays in entering the drug treatment

program. For example, the district judge may have thought that Tapia

would be reluctant initially to enter the program, but believed that, if so,

additional time in prison would convince her to do so. He may have also

anticipated that delays could result from Tapia being initially placed in a

facility that did not offer the program, or as a result of the extensive number of prisoners on the program’s waiting list. See FEDERAL BUREAU OF

PRISONS, STATE OF THE BUREAU 2009 at 26, available at http://

www.bop.gov/news/PDFs/sob09.pdf (observing that over the last year the

waiting list for this program had been reduced from 7,600 to 6,200 prisoners); United States v. Manzella, 475 F.3d 152, 156 (3d Cir. 2007) (district

court had determined that the “Bureau of Prisons [normally] wished to

have 36 months to conduct the program in light of scheduling issues”).

Third, the district judge may have wanted to provide extra time in case

Tapia engaged in misconduct that resulted in her being removed from the

waiting list and having to wait six months before reapplying to the program. See BOP Program Statement No. P5330.11 § 2.5.5, available at

http://www.bop.gov/policy/progstat/5330_011.pdf. Finally, the district

judge may have taken into account the sentence reduction of up to one

year that the Bureau of Prisons is authorized to grant to non-violent

offenders who successfully complete the drug treatment program, see 18

U.S.C. § 3621(e)(2)(B); he could have also reasoned that only if Tapia

could complete her sentence and then receive a reduction in prison time

would she have a sufficient incentive to enter the program in the first

place. Various combinations of these factors could have led the experienced district judge to rationally conclude that the 51-month sentence he

imposed was, as he put it, “the necessary sentence” to promote Tapia’s

rehabilitation. 

20900 UNITED STATES v. TAPIA
B.

[4] Tapia has also demonstrated that this error “seriously

affected the fairness, integrity, or public reputation of judicial

proceedings.” We have regularly deemed the fourth prong of

the plain error standard to have been satisfied where, as here,

the sentencing court committed a legal error that may have

increased the length of a defendant’s sentence. See, e.g., id. at

554-55; United States v. Castillo-Casiano, 198 F.3d 787, 792

(9th Cir. 1999), amended by 204 F.3d 1257 (9th Cir. 2000);

United States v. Lawton, 193 F.3d 1087, 1095 (9th Cir. 1999),

superseded in part on other grounds, U.S.S.G. App’x C. para.

604 (2000), as recognized in United States v. BarraganEspinoza, 350 F.3d 978, 983 (9th Cir. 2003). As we explained

in Castillo-Casiano:

It is easy to see why prejudicial sentencing errors

undermine the “fairness, integrity, and public reputation of judicial proceedings:” such errors impose a

longer sentence than might have been imposed had

the court not plainly erred. Defendants . . . may be

kept in jail for a number of years on account of a

plain error by a court, rather than because their

wrongful conduct warranted that period of incarceration. Moreover, there is little reason not to correct

plain sentencing errors when doing so is so simple a

task. . . . Reversing a sentence does not require that

a defendant be released or retried, but simply allows

a district court to exercise properly its authority to

impose a legally appropriate sentence.

198 F.3d at 792. For these same reasons, we exercise our discretion to notice the plain error committed by the district court

in this case. See Johnson v. United States, 520 U.S. 461, 467

(1997).

IV.

[5] Accordingly, we conclude that the district judge committed plain error by “lengthening [Tapia’s] prison term to

UNITED STATES v. TAPIA 20901
promote [her] rehabilitation.” Tapia, 131 S.Ct. at 2391. We

vacate her sentence and remand for resentencing. 

VACATED and REMANDED.

20902 UNITED STATES v. TAPIA