### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3172

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

R ACHEL L. K OPP

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 18

‐ cr

‐ 00090

— James D. Peterson

, Chief Judge

.

____________________

A RGUED A PRIL 12, 2019

— D ECIDED A PRIL 23, 2019

____________________

Before F LAUM

, E ASTERBROOK

, and S YKES

, Circuit Judges

.

F LAUM

, Circuit Judge

. Rachel L. Kopp has a history of sub

‐

stance abuse and drug

‐ related convictions. During the sen

‐ tencing hearing for the revocation of her supervised release,

the district court announced an 18

‐ month sentence; but then,

after learning from the probation o ffi cer that 18 months might

not allow su ffi cient time for Kopp to complete a residential

drug treatment program, the court increased the sentence to2 No. 18

‐ 3172

20 months. Kopp appeals, arguing the district court improp

‐ erly lengthened her sentence to promote rehabilitation in vio

‐

lation of Tapia v. United States

, 564 U.S. 319 (2011), and

18 U.S.C. § 3582(a). For the reasons below, we vacate the sen

‐

tence and remand to the district court for resentencing.

I. Background

On May 23, 2018, the Bureau of Prisons (“BOP”) released

Kopp from prison in Waseca, Minnesota and ordered her to

report to the Rock Valley Community Program in Janesville,

Wisconsin for transitional services. Kopp disregarded that di

‐

rective. Six days later, law enforcement arrested her. Ulti

‐ mately, Kopp pleaded guilty to a one

‐ count indictment for es

‐ caping the A tt orney General’s custody in violation of

18 U.S.C. §§ 751(a) and 4082(a).

The district court held a sentencing hearing on September

27, 2018. After con fi rming that both sides had no objections to

the Presentence Investigation Report (“PSR”), the court

adopted the PSR’s factual fi ndings and Guidelines applica

‐

tion: Kopp’s total o ff ense level was 7 and her criminal history

category was VI, so the range for the term of imprisonment

was 15 to 21 months. The government recommended a sen

‐

tence within the Guidelines range. Kopp’s a tt orney requested

a 12

‐ month sentence.

To support the request for a shorter sentence, Kopp’s at

‐

torney began by asserting that the bulk of Kopp’s criminal

history occurred when Kopp was in her teens and twenties—

Kopp was thirty years old at sentencing. The district court,

while describing Kopp’s criminal history as “low

‐ grade,” em

‐ phasized that “there’s a ton of it.” Additionally, the courtNo. 18

‐ 3172 3

opined that the “two fundamental drivers” of Kopp’s crimi

‐

nal activity were trauma from her childhood and her drug ad

‐

diction. This prompted Kopp’s a tt orney to transition to talk

‐ ing about Kopp’s treatment history.

Kopp’s a tt orney noted that Kopp participated in the BOP’s

Residential Drug Abuse Program (“RDAP”) 1 in 2016, but

since that time, she had not had another opportunity for treat

‐

ment. Again, the court o ff ered a clarifying comment: “She

hasn’t had an opportunity for treatment because every time I

try to put her in a circumstance where she can get treatment,

unless she is, you know, in leg irons, she runs away....” The

court described its experience sentencing other o ff enders with

substance abuse disorders—how treatment does not always

work the fi rst time, but some o ff enders have success after the

second cycle of treatment. Despite Kopp’s previous experi

‐

ence with RDAP, the court hoped Kopp could still bene fi t

1 The BOP must make treatment available to prisoners who it deter

‐

mines have “a treatable condition of substance addiction or abuse.”

18 U.S.C. § 3621(b). Accordingly, the BOP established the RDAP. See

28 C.F.R. § 550.53; U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program

Statement 5330.11: Psychology Treatment Programs (2009),

https://www.bop.gov/polic y/progstat/5330_011.pdf [hereinafter Program

Statement 5330.11]. To gain admission into RDAP, an inmate must

(1) “have a verifiable substance use disorder”; (2) “sign an agreement ac

‐ knowledging program responsibility”; and (3) be able to complete each of

the program’s components at the time he or she starts the program. 28

C.F.R. § 550.53(b). The program’s three components are: (1) the “[u]nit

‐

based component”—“a course of activities

... set apart from the general

prison population”; (2) “[f]ollow

‐ up services,” if time allows; and

(3) “Community Treatment Services.” Id. § 550.53(a). According to the

BOP’s Program Statement, an inmate typically needs 24 months to com

‐ plete the entire RDAP program before his or her release from BOP cus

‐ tody. Program Statement 5330.11, § 2.5.5.4 No. 18

‐ 3172

from treatment. It remarked: “We’ve got to get her some more

treatment, and I’m going to try again.”

Next, the court asked Kopp’s a tt orney to talk about Kopp’s

plans after incarceration, sharing its concern that Kopp was in

a “vicious cycle.” Kopp’s a tt orney told the court that Kopp

had contacted a transitional living program, a sponsor

through Narcotics Anonymous, and an organization that of

‐

fers addiction treatment. Then Kopp addressed the court di

‐ rectly: She took responsibility for her actions, asked for “the

least amount of incarceration” possible, and said she was

“prepared to do things di ff erently.” She recognized that she

needed to address the issues underlying her addiction and

stated that she intended to participate in counseling as part of

her recovery.

The court recalled similar statements Kopp made at a pre

‐

vious revocation of supervised release hearing, observed that

her statements at the present hearing seemed like a “broken

record,” and asked Kopp what would be di ff erent this time

around. Kopp said she fi nally accepted that she has a drug

addiction, and she planned to stay away from her old com

‐ munity and focus on ge tt ing treatment. The court encouraged

Kopp to work through her underlying issues, stay away from

drugs and people who use them, and use her intelligence to

build a be tt er future.

Then, the court began discussing Kopp’s sentence. It ex

‐ plained that the Guidelines range was “narrow,” but that

Kopp’s 12

‐ month request was “a li tt le short.” After asking

Kopp about the sentence she was currently serving and learn

‐ ing that Kopp was to receive a month of credit toward the sen

‐

tence it was to impose that day, the court announced: “The

sentence that I’m going to impose is 18 months. It’s kind of inNo. 18

‐ 3172 5

the middle of the guideline, and I want to make sure with an

18

‐ month sentence, does that give Ms. Kopp time to partici

‐

pate in an RDAP program?” The probation o ffi cer who pre

‐ pared the PSR responded: “I think that’s probably, like, the

lowest end she could be at to participate.” Immediately after

that comment, the court said: “Okay. I’m going to make it 20

months then.” Kopp interjected: ”Can I just—RDAP is only

nine months.” The court responded: ”You have to get into it.

You’ve got to fi nd a spot for it and everything like that, and I

do think it’s important for you, and so I’m going to make it 20

months....” The court also said that it “could be persuaded

that a sentence longer would be appropriate,” but rea ffi rmed

that “[Kopp’s] sentence will be 20 months.” Shortly thereafter,

the court imposed the conditions of supervised release and

asked if further justi fi cation of those conditions was neces

‐

sary. Kopp’s a tt orney responded in the negative. After

“cover[ing] all the other formalities of the sentence,” the court

adjourned the hearing. The clerk entered the wri tt en judg

‐

ment on September 28, 2018.

II. Discussion

The Sentencing Reform Act of 1984 enacted “sweeping re

‐

forms” to federal criminal sentencing. Mistre tt a v. United

States

, 488 U.S. 361, 365–66 (1989). Under the Act, a judge must

sentence a federal o ff ender to either a fi ne, a term of proba

‐

tion, or a term of imprisonment. 18 U.S.C. § 3551(b). In select

‐ ing one of those options, the judge must “impose a sentence

su ffi cient, but not greater than necessary” to re fl ect the four

general purposes of sentencing: retribution, deterrence, inca

‐ pacitation, and rehabilitation. Id. § 3553(a); Tapia

, 564 U.S. at

325. But the Act requires judges to disregard certain purposes

depending on which type of sentence the judge is imposing.6 No. 18

‐ 3172

Tapia

, 564 U.S. at 325–26. For example, a judge may not con

‐

sider retribution when imposing a term of supervised release.

18 U.S.C. § 3583(c); Tapia

, 564 U.S. at 326. And, as relevant to

this appeal, a judge may not consider rehabilitation when im

‐ posing a term of imprisonment. 18 U.S.C. § 3582(a); see also

Mistre tt a

, 488 U.S. at 367 (explaining that the Act “reject[ed]

imprisonment as a means of promoting rehabilitation”); 28

U.S.C. § 994(k) (“The [Sentencing] Commission shall insure

that the guidelines re fl ect the inappropriateness of imposing

a sentence to a term of imprisonment for the purpose of reha

‐ bilitating the defendant or providing the defendant with

needed educational or vocational training, medical care, or

other correctional treatment.”).

In Tapia v. United States

, the Supreme Court considered

whether the Act prevented judges from considering the time

required to complete RDAP in deciding how long an of

‐

fender’s term of imprisonment should be. 564 U.S. 319. After

reviewing the statutory background and language, the Court

held: “Section 3582(a) precludes sentencing courts from im

‐ posing or lengthening a prison term to promote an o ff ender’s

rehabilitation.” Id. at 332.

Kopp argues that the district court’s judgment runs afoul

of Tapia because the court added two months to her imprison

‐

ment term to allow her to complete RDAP. The government

disagrees and further argues that Kopp should not be permit

‐

ted to raise a Tapia objection for the fi rst time on appeal.

A. Standard of Review

“Generally speaking, we review a district court’s applica

‐

tion of the Sentencing Guidelines de novo and any underlying

factual fi ndings for clear error.” United States v. Seals

, 813 F.3dNo. 18

‐ 3172 7

1038, 1044 (7th Cir. 2016). Here, the government argues that

Kopp did not properly raise a Tapia claim below, so our re

‐

view turns on whether Kopp waived or forfeited that issue.

“Waived issues cannot be reviewed, while forfeited ones are

reviewed for plain error.” Id. at 1045. A party waives an issue

when it “‘intentionally relinquishes or abandons a known

right,’” and a party forfeits an issue when it “fails to raise an

argument due to accident or neglect.” Id. at 1044–45 (quoting

United States v. Walton

, 255 F.3d 437, 441 (7th Cir. 2001)).

The government contends that Kopp advocated for a term

of imprisonment long enough to allow her to complete RDAP

as part of her overall sentencing strategy to convince the court

that she was fi nally willing to confront her addiction. As such,

the government asserts that Kopp either intentionally relin

‐ quished her right to bring a Tapia claim or invited the court to

make a Tapia error. We disagree.

Kopp expressed a desire to complete RDAP, but she also

sought to limit the amount of time she would have to spend

in prison. At the sentencing hearing, Kopp explicitly stated:

“Of course I’m hoping for the least amount of incarceration.”

And when the court proposed increasing her sentence from

18 to 20 months to ensure she could complete RDAP, Kopp

interrupted the court to make clear that she believed 9 months

would be su ffi cient. Although Kopp did not make a formal

Tapia objection, her comments to the court indicate that she

opposed the proposed increase of her sentence. Therefore,

there is no support for the government’s argument that Kopp

waived her right to challenge the district court’s decision to8 No. 18

‐ 3172

lengthen her sentence for rehabilitation, much less that she in

‐

vited the court to make a Tapia error.

It was, however, a mistake for Kopp’s a tt orney not to raise

a Tapia objection during the sentencing hearing. Due to this

forfeiture, we review for plain error. 2 Under plain

‐ error re

‐

view, Kopp must show that (1) there was error, (2) it was

plain, (3) it a ff ected her substantial rights, and (4) it seriously

a ff ected the fairness, integrity, or public reputation of the ju

‐

dicial proceedings. Seals

, 813 F.3d at 1045.

B. Sentencing Decision

The government maintains that the district court’s sen

‐

tence was not plainly erroneous. In support of this position,

the government argues that the court discussed the appropri

‐

ate § 3553(a) factors, only discussed treatment in light of

2 In her reply, Kopp characterizes the moment she interrupted the

court as her taking “exception” to the sentencing decision pursuant to Fed

‐

eral Rule of Criminal Procedure 51. She argues that she did not have an

opportunity to object before the court imposed the sentence and therefore,

she is entitled to raise this issue on appeal. See United States v. Pennington

,

908 F.3d 234, 238 (7th Cir. 2018) (“Federal Rule of Criminal Procedure 51(a)

provides that a party need not state an ‘exception’ to a ruling the court has

already made

... to preserve her appellate rights.” (citation omitted)). We

disagree. After switching the sentence from 18 to 20 months, the court con

‐

tinued to discuss the need for Kopp’s sentence and paused to accept con

‐

cerns or comments before finalizing the sentence. There was ample oppor

‐ tunity for Kopp or her attorney to raise an objection. Based on this record,

the absence of a formal Tapia objection leads us to review for plain error.

See United States v. Holman

, 840 F.3d 347, 352–53 (7th Cir. 2016); see also

United States v. Lewis

, 823 F.3d 1075, 1083–84 (7th Cir. 2016) (when a judge

announces a definitive sentencing decision, a defendant need not make an

objection to preserve the issue for appeal, but where a judge announces a

tentative sentencing decision and invites objections, a defendant’s failure

to object can amount to waiver or forfeiture).No. 18

‐ 3172 9

Kopp’s request for it, and based the sentence on the need to

protect the public given that Kopp’s addiction might limit her

ability to refrain from criminal activity upon release. Viewed

that way, the government sees an analogy between this case

and our recent decision in United States v. Burrows

, 905 F.3d

1061 (7th Cir. 2018).

But Burrows is easily distinguishable. There, we held the

district court did not commit a Tapia error because the court

only discussed the opportunities for rehabilitative programs

in prison; there was no indication that the court chose the

length of the defendant’s sentence to promote rehabilitation.

Id. at 1067. Rather, the district court “determined the length of

[the o ff ender’s] sentence, in its words, ‘to address the serious

‐

ness of the o ff ense and also [the] concerns about [the of

‐ fender’s] risk to recidivate and the need for general deter

‐

rence.’” Id. at 1067–68 (second alteration in original) (quoting

the district court).

Here, by contrast, the court initially intended to give Kopp

an 18

‐ month sentence: “The sentence that I’m going to impose

is 18 months.” But before making that o ffi cial, the court asked

if an 18

‐ month sentence would “give Ms. Kopp time to partic

‐ ipate in an RDAP program?” When the probation o ffi cer ex

‐ plained that 18 months was probably “the lowest end” of the

requisite amount of time to complete RDAP, the district court

immediately responded by adding two months to Kopp’s sen

‐

tence: “Okay. I’m going to make it 20 months then.” The only

fact that changed between the moment the district court an

‐

nounced an 18

‐ month sentence and the moment the district

court announced a 20

‐ month sentence was the court’s receipt

of the probation o ffi cer’s estimate as to the amount of time10 No. 18

‐ 3172

necessary to allow RDAP participation. Such a shift in sen

‐ tencing is precisely what Tapia and 18 U.S.C. § 3582(a) pro

‐

hibit.

We are not persuaded by the government’s argument that

the court’s dismissal of Kopp’s interjection that RDAP only

takes 9 months, the court’s musing that it could have been

persuaded to make the sentence longer, or the court’s after

‐

the

‐ fact recitation of reasons for the sentence were tailored to

its decision to impose a 20

‐ month—as opposed to an 18

‐

month—sentence. The district court never explained why two

additional months were necessary. Comparing the infor

‐

mation the court had while announcing an 18

‐ month sentence

with the information it had while announcing a 20

‐ month

sentence leads to the conclusion that the court imposed a 20

‐

month sentence in order to guarantee Kopp’s ability to com

‐ plete RDAP. That was plain error.

The government insists, nevertheless, that we should not

remand for resentencing because Kopp has not made any

showing that but for the error, the sentence would have been

di ff erent. The transcript of the sentencing hearing belies this

argument. If the district court had not made a Tapia error, it

would have imposed an 18

‐ month sentence. Consequently,

the district court must resentence Kopp.

III. Conclusion

For the foregoing reasons, we V ACATE the sentence and

R EMAND for resentencing.