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

No. 10-30571

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ARMARCION D. HENDERSON, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana

Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges. JERRY E. SMITH, Circuit Judge:

Armarcion Henderson argues that the district court erred by giving him

a longer sentence to promote his rehabilitation. Under Tapia v. United States , No. 10-5400, 2011 WL 2369395 (U.S. June 16, 2011), Henderson is correct that the district court erred. Henderson did not preserve the error, however, and we affirm, because he cannot show that the district court plainly erred. 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 July 8, 20 11 Lyle W . Cayce Clerk Case: 10-30571 Document: 00511533628 Page: 1 Date Filed: 07/08/2011No. 10-30571 I. Henderson pleaded guilty of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Although the sentencing guideline range

was 33 to 41 months, Henderson was sentenced to 60 months of imprisonment. Th e di strict court stated that the upward departure was necessary to ensure that Henderso n h ad an opportunity to enroll in the federal Bureau of Prisons drug treatment program:

I want the record to reflect that this sentence is a [18 U.S.C. §] 3553(a) sentence, particularly under subparagraph (2)(D), be- 1
cause this defendant needs training, he needs counselling [sic], and he needs substance abuse treatment within the confines of that system.

. . . . I’ve got to give him that length of time to do the programming and the treatment and the counselling [sic] th at this defendant needs right now. And that is the reason for that sentence under 3553(a)(2)(D).
Henderson did not object to the sentence. When asked if there was “any reason why that sentence a s stated should not be imposed,” his attorney responded, “[p]rocedurally, no, Your Honor.” Eight days after the sentencing hearing, Henderson filed a motion under Federal Rule of Criminal Procedure 35(a) to correct the sentence, arguing that the court violated the admonition of 18 U.S.C. § 3582(a) that [t]he court, in determining whether t o 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.

Title 18 U. S. C. § 3553( a)( 2)(D) pr ovide s that “[t] he court, in det erm ining the partic u- 1 lar se nten ce to be im pos ed, sha ll cons ide r . . . the need for the se nten ce im pos ed

. . . to pr ovide the def enda nt wi th need ed educ atio nal or vocat ional tra ining, m edi cal car e, or othe r correc tio nal tre atm ent in the mo stef fec tive man ner. ”

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The district court denied the motion, and Henderson appeals.

II. The first issue is whether Henderson’s rule 35(a) motion preserved his

c l a im of error. We have previously held that a rule 35(a) motion prese rv e d a claim of error under United States v. Booker , 543 U.S. 220 (2005). United States

v. Watkins , 450 F.3d 184, 1 8 5 ( 5 th Cir. 2006) (per curiam). Watkins does not control here, however, because the Booker error in that case was clear. It was 2 thus correctable under rule 35(a), which allows the court to correct only sentences “that resulted from arithmetical, technical, or other clear error.” Because the purpose of waiver doctrine is to “give[] the district court the opportunity to consider and resolve [errors],” however, a rule 35(a) motion can preserve error 3 only if it gave the district court an opportunity to correct it. Consequently, a rule 35(a) motion cannot preserve an error unless the error is arithmetical, technical, or otherwise clear. A sentencing error is clear under rule 35(a) only if i t i s n o t the result of “the exercise of the court’s discretion with regard to the application of the sentencing guidelines.” United State v. Ross , 557 F.3d 237, 241 (5th Cir. 2009). That rule flows from the comments of the advisory committee that Rule 35(a) is “‘very

narrow and

. . . extend[s] only to those cases i n which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action.’” Id. at 239 (quoting F E D
. R. C R I M
. P. 35 advisory committee’s note).

The Sup rem e Court had dec ide d Booke r im me diat ely bef ore Watk ins ’s Rule 35(a) mo 2 tio n, so it wa s clea r at the tim e of the mo tio n that the dis tri ct court sho uld not have cons ide red judge- fou nd fac tsw hen ope rat ing unde r a m andat ory guide lines r egim e. Watki ns , 450 F.3d at 185. Pucke tt v. U

nitedState s , 129 S. Ct

. 1423, 142 8 ( 2009)

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Before Tapia , there was a circuit split on whether a district court can consider a defendant’s rehabilitative needs to lengthen a sentence. Tapia , 2011 WL 2369395, at *3 n.1. Moreover, we have not pronounced on the question. In that 4 situation, when there is no binding precedent on a question on which there is a circuit split, an alleged err or is not “clear.” If we had confronted the question,

we might have gone either way, so the error would not “almost certainly result in a remand of the case.” The error was not correctable under rule 35(a) , a nd Henderson’s motion failed to preserve the error. We must therefore review for plain error. Tapia established that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia , 2011 WL 2369395, at *9. Henderson cannot show that the error in his case was plain, however, because an error is plain only if it “was clear under current law at the time of trial .” United States v. Jackson , 549 F.3d 963, 977 (5th Cir. 2008) (emphasis added). At the time of trial, the Supreme Court had not yet decided Tapia and, as we have just explained, we had not yet addressed the question. Where we have not previously addressed a question, any error cannot be plain. 5 The judgment of sentence is AFFIRMED.

In Uni ted States v. Gi ddings , 37 F.3d 1091 (5t h Cir. 1994) , we held only that a court 4 coul d cons ide r a def

enda nt’ s rehabilit ative need s wh en se nten cing him to im priso nme nt upon revoc atio n o f sup ervis ed rele ase . Ou r dec isi on in Uni ted Sta tes v. La ra -V elas quez , 919 F.2d 946, 953- 57 (5t h C ir. 1990) , held only that the court can cons ide r rehabilit ative pot enti al as a mi tigat ing fac tor wi thin an app rop riat e range of puni shm ent, but not nece ss arily as a reas on fora se nten cing enhanc em ent. See Uni ted States v. Vega , 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We con c l u d e that 5 any err or by the dis tri ct cour t in this regar d wa s not plai n o r obvious , as wehaveno t pr evious ly ad dr es se d this is sue .” (c itin g Uni ted Sta tes v. Ca lv erley , 37 F. 3d 160, 162 -63 (5t h Cir

. 1994) (enban c) ))

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