2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2014

USA v. Theresa Thornhill

Precedential or Non-Precedential: Precedential

Docket No. 13-2876

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 13-2876, 13-2877, 13-2878

_____________

UNITED STATES OF AMERICA

v.

THERESA M. THORNHILL,

 Appellant 

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Nos. 2-02-cr-00084-001;

2-07-cr-00388-001; 2-09-cr-00154-001

District Judge: The Honorable Terrence F. McVerry

Argued March 6, 2014

Before: RENDELL, SMITH, and HARDIMAN,

Circuit Judges

(Filed: July 8, 2014)
2

Rebecca R. Haywood

Michael L. Ivory [ARGUED]

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Elisa A. Long [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

_____________________

 OPINION

_____________________

SMITH, Circuit Judge.

In 1984, Congress enacted the Sentencing Reform 

Act, a measure which profoundly “revise[d] the old 

sentencing process.” Mistretta v. United States, 488 U.S. 

361, 367 (1989). One of the reforms effected by the Act 

was the elimination of special parole and the 

establishment of a “new system of supervised release.” 

Gozlon-Peretz v. United States, 498 U.S. 395, 397 
3

(1991). The “new system” was codified in 18 U.S.C. 

§ 3583, and included a provision at subsection (g) which 

mandates the revocation of supervised release and the 

imposition of a term of imprisonment under certain 

enumerated circumstances. 18 U.S.C. § 3583(g).1 

The question we consider is: once § 3583(g)’s 

mandatory revocation provision is triggered, what guides 

a district court’s exercise of discretion in determining the 

length of the defendant’s term of imprisonment? We 

conclude that this exercise of discretion is guided by the 

sentencing factors set forth in 18 U.S.C. § 3553(a).

I.

In 2002, Theresa Thornhill pled guilty to a single 

count of bank fraud in violation of 18 U.S.C. § 1344(a) in 

the United States District Court for the Western District 

of Pennsylvania. On May 23, 2003, the District Court

sentenced Thornhill to, inter alia, 21 months of 

imprisonment and a five-year term of supervised release. 

 

1

Section 3583(g) provides, in relevant part, that if the 

defendant engages in certain conduct involving 

controlled substances or firearms, that “the court shall 

revoke the term of supervised release and require the

defendant to serve a term of imprisonment not to exceed 

the maximum term of imprisonment authorized under 

subsection (e)(3).” 18 U.S.C. § 3583(g).
4

She was also directed to make restitution in the amount 

of $25,521.12 (2003 Conviction).

Thornhill’s five-year term of supervised release for 

the 2003 Conviction commenced on December 30, 2004. 

In a Petition on Supervised Release dated May 30, 2007

(First Petition), Thornhill’s probation officer advised the 

District Court that: Thornhill had submitted six urine 

samples that tested positive for marijuana; she had failed 

to attend her outpatient treatment for substance abuse; 

she had neither reported to her probation officer nor filed 

the requisite reports; and she had not made any payments 

toward restitution. 

The District Court issued a bench warrant, and 

Thornhill was arrested in July 2007. Thereafter, the 

probation officer filed a Motion to Supplement the 

Petition on Supervised Release (Second Petition), 

alleging additional violations of the conditions of her 

supervised release. The Second Petition charged that 

Thornhill had engaged in fraudulent conduct by opening 

four bank accounts at four different branches of National 

City Bank using four different Social Security numbers. 

It alleged that she had deposited checks drawn on closed 

accounts into these new accounts, and concluded that this

conduct amounted to bank fraud under 18 U.S.C. 

§ 1344(1), fraudulent use of social security numbers

under 18 U.S.C. § 407(a)(7)(B), and aggravated identity 

theft under 18 U.S.C. § 1028A(a)(1). Exhibits attached 
5

to the Second Petition established that National City 

Bank sustained a loss of $7,648.65. 

On November 16, 2007, Thornhill waived her right 

to an indictment and pled guilty to a one-count 

information charging her with bank fraud in violation of 

18 U.S.C. § 1344(1) (2007 Conviction). The information 

was based on the criminal conduct described in the 

Second Petition. 

At her guilty plea, Thornhill’s defense counsel 

advised the District Court that, according to the pretrial 

services office, Thornhill was cooperating with the 

conditions of her release. Specifically, counsel told the 

court that she was reporting to her probation officer as

required and that her weekly drug screens tested

negative. In addition, defense counsel noted that the 

supervising probation officer hoped that Thornhill could

move out of the residence of a third-party custodian, and 

was agreeable to eliminating the electronic monitoring 

that had been a condition of her pre-trial release. The 

probation officer confirmed counsel’s representations. 

The District Court agreed to the modifications. 

On February 25, 2008, Thornhill’s probation 

officer filed a Supplemental Petition on Supervised 

Release (Third Petition). This new petition alleged that 

Thornhill had again tested positive for marijuana on three 

occasions in January and February of 2008, thereby 

violating conditions of supervised release stemming from 
6

her 2003 Conviction. The Third Petition also referenced

Thornhill’s guilty plea to the 2007 information, which 

established the commission of a federal crime.

On March 28, 2008, the District Court conducted 

both a sentencing hearing for the 2007 Conviction and a 

hearing on the First, Second, and Third Petitions, which 

alleged violations of the terms of her supervised release 

on the 2003 Conviction. Defense counsel offered several 

exhibits intended to provide insight into Thornhill’s 

personal circumstances, including a fourteen page, 

single-spaced report from clinical psychologist Jolie S.

Brams, Ph.D. 

Dr. Brams’s report was thorough. She noted that, 

contrary to an earlier presentence report, Thornhill had a 

significant history of psychiatric issues as a child. This 

history included hospitalizations, and noted “a complete 

lack of parental concern or nurturing.” The report also 

described a history of sexual abuse at the hands of a 

family member which had resulted in her placement into

foster care. Thornhill’s marriage was similarly marked 

by physical and mental abuse. Dr. Brams opined that 

Thornhill had many of the signs and symptoms of posttraumatic stress disorder and that her “mental health 

difficulties impacted her ability to deal with her life in a 

consistently efficacious manner, cloud[ed] her judgment, 

and made her more vulnerable to [the] manipulations of 

her husband.” Dr. Brams described at length the impact 

of the domestic violence Thornhill experienced and 
7

characterized her extended family situation as “toxic.” 

The report highlighted the limited resources available to 

help Thornhill. 

According to Dr. Brams, Thornhill had some 

insight into her predicament, and she opined that there

could be a “good prognostic outcome if the correct 

resources are put in place.” The report concluded by 

stating:

Appropriate psychiatric treatment is also 

crucial, and she has demonstrated a 

willingness to comply and recognizes her 

need for these services. She clearly wants to 

have a “normal” life, but has had little 

opportunity to learn how to create one. 

However, underneath a history of 

dysfunction appears to be a young woman 

who has the potential to change. 

Defense counsel also provided the District Court 

with a six page, single-spaced supplemental report from 

Dr. Brams. The supplemental report discussed 

Thornhill’s progress over the previous six months. Dr. 

Brams opined that 

Thornhill’s life is as stable as it likely has 

ever been, and while she recognizes the 

support of her probation officer, attorney, 

and counselor, in reality it is Ms. Thornhill 
8

who has generally dealt in an appropriate 

manner with her life, as an adult, parent, 

employee, and citizen. It is important for 

the Court to note that she has done so in the 

face of continuing stressors, and immense 

family dysfunction with purposeful threats 

to her emotional and physical safety by 

various family members.

The supplemental report advised that Thornhill was 

employed part time as a licensed nursing assistant. 

According to Dr. Brams, Thornhill was receiving 

counseling services and complying with her medication 

regime. 

Thornhill’s family continued to present obstacles 

for her, especially those created by her abusive husband. 

Dr. Brams noted that Thornhill was concerned about who 

would care for her children if she were to be incarcerated. 

And Thornhill expressed a belief that the progress she

had made would be negated if she were to be 

incarcerated. Dr. Brams opined that Thornhill “has done 

well during the last few months,” making “solid and 

positive recovery from many traumatic events.” 

Beyond her written reports, Dr. Brams testified at 

the hearing. She acknowledged that Thornhill had used 

marijuana, but noted that it was on a therapeutic basis

when she had run out of her medication and when she 

“was under a great deal of stress.” According to Dr. 
9

Brams, Thornhill did not use marijuana “for recreational 

purposes.” Thornhill’s probation officer also testified 

about her progress following the 2007 Conviction. 

After hearing the testimony, the District Court 

imposed sentence. Looking at a guideline range for bank 

fraud of eight to fourteen months of imprisonment, the 

Court granted a substantial downward variance based on

Thornhill’s diminished mental capacity and her 

responsibility for raising her two sons. He sentenced her 

to one day of imprisonment, imposed a five-year term of 

supervised release, and directed that she pay restitution to 

National City Bank. 

The hearing then turned to the violations alleged in 

the First, Second, and Third Petitions. Thornhill 

admitted the allegations in the petitions, and the 

government encouraged the judge to impose a withinguideline sentence of twelve to eighteen months of 

imprisonment. Nevertheless, after revoking her 

supervised release on the 2003 Conviction, the District 

Court sentenced her to one day of imprisonment, to be 

served concurrently with the sentence imposed for the 

2007 Conviction. Importantly, the Court imposed 

another three-year term of supervised release for the 

2003 Conviction. 

The terms of the supervised release imposed for 

the 2007 Conviction included a nine-month period of 

home detention during which Thornhill was required to 
10

wear an electronic monitoring device. In September 

2008, almost six months after being sentenced, Thornhill

was the subject of yet another Petition on Supervised 

Release (Fourth Petition), this one alleging that she had 

tampered with her electronic monitoring transmitter.2In 

addition, the Fourth Petition alleged that Thornhill had

again tested positive several times for marijuana. 

A Supplemental Petition on Supervised Release 

(Fifth Petition) followed just a month later. This Petition

alleged that Thornhill had failed: to attend scheduled 

mental health appointments; to attend scheduled visits 

with her probation officer; to file the reports that were 

required by the terms of her supervised release; and to 

make any payments toward restitution. 

On October 28, 2008, yet another revocation 

hearing was conducted before the same District Judge. 

Thornhill admitted to using marijuana and that she had 

not been wearing the monitoring device as required. She 

also admitted to the violations set forth in the Fifth 

Petition. Once again, the judge found that Thornhill had

violated the conditions of supervised release and revoked 

her supervised release on both the 2003 and the 2007 

Convictions. He imposed a within-guideline term of 

imprisonment of nine months on each conviction, to be 

 

2 According to the Fourth Petition, police officers were at 

her apartment and found her ten-year-old son wearing the 

electronic monitoring transmitter. A246.
11

served concurrently, followed by a 24-month term of 

supervised release. 

The allegations in the Fourth and Fifth Petitions

did not include averments that Thornhill had engaged in 

additional criminal conduct. But an indictment returned 

by a grand jury in May 2009, alleged that from “May 

2008 to in or around July 2008,” Thornhill again 

“knowingly execute[d] and attempt[ed] to execute a 

scheme and artifice to defraud” another bank in violation 

of 18 U.S.C. § 1344. On October 9, 2009 the same 

District Judge who had sentenced Thornhill on her 2003 

and 2007 Convictions for bank fraud, accepted 

Thornhill’s guilty plea to the offense of bank fraud (2009 

Conviction). In February of 2010, he sentenced 

Thornhill to a term of imprisonment of 24 months,

followed by a four-year term of supervised release and 

payment of restitution. 

Thornhill’s term of supervised release on the 2003, 

2007, and 2009 Convictions commenced on July 27, 

2011.

3

 In a Show Cause Petition (Sixth Petition) dated 

April 26, 2013, Thornhill’s probation officer alleged that 

Thornhill had again violated the terms of her supervised 

 

3

It appears that Thornhill was sentenced to 24 months of 

imprisonment in February of 2010 and that only 

seventeen months passed when her supervised release 

commenced on July 11, 2011. The record, however, does 

not explain why she did not serve the entire 24 months. 
12

release for each conviction. The Sixth Petition alleged

that: she had committed several violations of 

Pennsylvania’s Vehicle Code and Criminal Code; tested 

positive for marijuana on seven occasions;

4

failed to 

attend mental health treatment appointments; and neither 

reported to the probation office for drug testing as 

required nor submitted the required monthly report. In 

addition, the Sixth Petition averred that Thornhill had 

made no restitution payments on the 2007 and 2009 

Convictions and owed more than $25,000 on the 2003 

Conviction.

On June 4, 2013, the same District Judge who had

sentenced Thornhill on her 2003, 2007, and 2009 

Convictions conducted a third revocation hearing. The 

Court recounted in detail Thornhill’s criminal history and 

set forth the alleged violations of the terms of her 

supervised release on the record. Defense counsel noted 

that Thornhill admitted the allegations in the Sixth

Petition except for the state law violations and the 

averment that she had failed to report to the probation

office. The probation officer noted Thornhill’s 

psychiatric disorders and that she had been traumatized 

 

4

Section 3583(g) mandates revocation “[i]f the defendant 

. . . as a part of drug testing, tests positive for illegal 

controlled substances more than 3 times over the course 

of 1 year.” 18 U.S.C. § 3583(g)(4). Thornhill’s positive 

tests triggered § 3583(g)’s applicability.
13

because she had witnessed her brother’s murder. In the 

wake of this murder, the probation officer noted, 

Thornhill also had to cope with the murder of one of her 

sons and the fact that another son sustained serious 

injuries in a motor vehicle accident. The probation 

officer acknowledged that Thornhill’s failure to comply 

with the reporting requirement occurred during this 

turbulent time. 

The Court then heard argument, during which 

defense counsel noted that Thornhill’s violations were 

Grade C violations and urged the Court not to revoke her 

supervised release. He emphasized the tragic nature of 

Thornhill’s case, acknowledging that the “Court is aware 

of her history.” Counsel went on to recount Thornhill’s

psychiatric disorders, her abusive childhood and 

marriage, and the series of tragic events involving the 

murders of her brother and her son, as well as the car 

accident involving her other son. Counsel conceded that

Thornhill had tested positive for marijuana, but explained 

that she was self-medicating in light of her 

circumstances. Counsel urged that, instead of revoking 

her supervised release, the Court should provide her with 

“structure.” 

The Court responded to counsel by stating: 

“That’s what we’ve been trying to give her . . . . She’s 

been here, and been here, and been here. That’s what the 

whole plan has been. [The probation officer] has worked 

hard to try to give her a structure.” 
14

The judge asked the probation officer whether 

supervised release should be revoked. The probation 

officer replied that she had tried to work with Thornhill

by referring her to different programs, but that Thornhill

had failed both to follow through and to comply with 

directives from the Court. The probation officer 

expressed her belief that Thornhill “needs the structured

environment, such as prison.” The government agreed, 

once again, urging the Court to impose a substantial 

sentence. The Assistant U.S. Attorney recommended a 

three-year period of imprisonment, consisting of a oneyear term of imprisonment on each conviction. 

The Court concluded that Thornhill had violated 

the conditions of her supervised release. Thornhill then 

addressed the Court. She referred to the unexpected 

trauma in her life and stated:

I’m not asking you for anything, but if you 

want to put me in jail, that’s fine. The only 

thing I’m asking is, that I’ve always 

reported, I’ve never not showed up for court. 

I’ve never showed you any disrespect to not 

report. I’m just asking – I wasn’t able to be 

there when my brother’s murderers were 

convicted. I’m just asking, can I be there 

when the person who shot my child is tried. 

That’s all I’m asking. If you want to sent 

me away, that’s fine, Your Honor. But I did 

not come out of prison to disrespect you. 
15

In response to Thornhill’s remarks, the District 

Judge stated the following:

Whatever you’ve done or not done, Miss 

Thornhill, I personally don’t feel as though 

you’ve disrespected me. The law is the law, 

and you’ve been here time and again and 

been asked to comply with the law, and do 

what the Probation Office has been 

attempting to help you do. And although 

you have personal issues, and I recognize 

those, to be honest, you’ve been a very, very 

difficult person to deal with whenever 

you’re not in a controlled environment. And 

I don’t know whether you’re difficult to deal 

with when you’re in a controlled 

environment, but I’ve had nine years of 

experience with you and it’s been time, after 

time, after time.

The District Court then found that Thornhill had 

committed Grade C violations, including the positive 

drug tests for marijuana and the failure to participate in 

the various programs designed to address her mental 

health disorders and her substance abuse. The Court 

explained that the positive drug tests triggered the 

mandatory revocation provision in § 3583(g), which 

required a term of imprisonment. The Court 

acknowledged an exception to § 3583(g)’s mandatory 
16

revocation.

5

 He concluded, however, that this exception 

was not warranted in Thornhill’s case in light of the 

unsuccessful efforts that had already been made to 

address her substance abuse problems. The judge 

revoked her supervised release on each conviction, 

noting that she was subject to imprisonment for not more 

than three years on each conviction.

6

 The Court imposed 

a term of imprisonment of twelve months for each 

conviction to be served consecutively, with “no 

supervised release to follow, as you have proven yourself 

to be unmanageable in a free society environment.” The 

District Court directed that Thornhill begin her 36-month 

sentence immediately.

7

 

 

5

Section 3583(d) provides that the “Court shall consider 

whether the availability of appropriate substance abuse 

treatment programs, or an individual’s current or past 

participation in such programs, warrants an exception . . . 

from the rule of section 3583(g) when considering any 

action against a defendant who fails a drug test.” 18 

U.S.C. § 3583(d). 

6

In reviewing the advisory guideline for each conviction, 

the District Court pointed out that the advisory guideline 

range for the 2003 Conviction was three to nine months, 

five to eleven months for the 2007 Conviction, and six to 

twelve months for the 2009 Conviction. A399.

7 Because he had been advised that the trial of her son’s 

murderer was scheduled to commence in a week, the 
17

Thornhill filed a timely notice of appeal, 

challenging the revocation of supervised release in each 

of the three criminal proceedings.8

II.

Thornhill contends that the sentences the District 

Court imposed upon revocations were procedurally and 

substantively unreasonable. In particular, Thornhill 

asserts that the District Judge erred by failing to articulate 

his reasons for rejecting the recommended guideline 

range, and by failing to indicate if, or how, he considered 

the sentencing factors enumerated in 18 U.S.C. 

§ 3553(a). In addition, Thornhill submits that the District 

Court failed to respond to her mitigation arguments. 

According to Thornhill, these errors rendered the District 

Court’s sentences substantively unreasonable.

The government contends that Thornhill’s 

arguments lack merit, arguing that a district court “is not 

required to consider the § 3553(a) factors when 

revocation of supervised release is governed by 

 

judge requested the cooperation of the United States 

Marshal’s Service while Thornhill was in local custody 

in the event she was subpoenaed to appear.

8

The District Court exercised jurisdiction under 18 

U.S.C. §§ 3231 and 3583(g). We have appellate 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a).
18

§ 3583(g).” For that reason alone, the government 

asserts that Thornhill’s claim of procedural error must 

fail. Nonetheless, the government submits that the 

District Court did consider some of the § 3553(a) 

sentencing factors and that the Court’s revocation order 

is neither procedurally nor substantively unreasonable. 

III.

9

A.

According to the government, this court has 

determined that once § 3583(g) applies, the District Court 

is not required to consider the § 3553(a) factors in 

 

9 The question of whether the District Court is required to 

consider the § 3553(a) factors in imposing a term of 

imprisonment under § 3583(g) presents an issue of law 

subject to plenary review. See United States v. Smith, 

445 F.3d 713, 716 (3d Cir. 2006) (noting, in the context 

of an appeal challenging a condition of supervised 

release, that our review is plenary to the extent it 

concerns a legal issue); see also United States v. 

Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004) (applying 

plenary review to question of statutory interpretation 

involving § 3583(i)). We review the procedural and 

substantive reasonableness of a sentence imposed upon

revocation of supervised release for an abuse of 

discretion. United States v. Bungar, 478 F.3d 540, 542 

(3d Cir. 2007).
19

imposing a term of imprisonment. It relies on our

decision in United States v. Doe, 617 F.3d 766, 772 (3d 

Cir. 2010). There, we noted the two types of revocation 

proceedings: discretionary revocation under § 3583(e)(3) 

and mandatory revocation under § 3583(g). Id. With 

regard to the mandatory provision, we stated that 

“[w]hile [mandatory revocation under] § 3583(g) does 

not expressly require consideration of the § 3553(a) 

factors, it does not prohibit the sentencing court from 

doing so.” Id.

Ostensibly, this language lends some support for 

the government’s contention that the District Court did 

not err because it was not required to consider the 

§ 3553(a) factors. Yet the Doe language is not 

controlling. Because the Doe Court ultimately concluded 

that the District Court had exercised its authority under 

§ 3583(e)’s discretionary revocation provision, the 

statement relied upon by the government is dictum. 

Furthermore, the Court’s “observation” that § 3583(g) 

does not explicitly refer to the § 3553(a) factors does not 

amount to a holding that these factors have no role to 

play in a mandatory revocation proceeding.

10

 

Accordingly, we are left to decide whether the § 3553(a) 

factors must be considered by a district judge in deciding 

 

10 Indeed, the government tacitly acknowledges as much. 

In its Rule 28(j) letter, the government characterized this 

quotation from Doe merely as an “observation.”
20

the length of a term of imprisonment following 

mandatory revocation under § 3583(g).

B.

In the absence of binding authority, we must 

determine whether the statute provides specific guidance 

to a district judge when exercising his/her discretion in

choosing an appropriate term of imprisonment following 

mandatory revocation of supervised release. “Statutory 

interpretation requires that we begin with a careful 

reading of the text.” Zimmerman v. Norfolk S. Corp., 706 

F.3d 170, 177 (3d Cir. 2013). See also Barnhart v. 

Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“As in all 

statutory construction cases, we begin with the language 

of the statute.”). 

Our inquiry is not confined solely to the text of 

§ 3583(g). Rather, “[i]n matters of statutory 

interpretation, the ‘plain meaning’ of statutory language 

is often illuminated by considering not only ‘the 

particular statutory language’ at issue, but also the 

structure of the section in which the key language is 

found, [and] ‘the design of the statute as a whole and its 

object.’” United States v. Tupone, 442 F.3d 145, 151 (3d 

Cir. 2006) (quoting United States v. Schneider, 14 F.3d 

876, 879 (3d Cir. 1994)). Our analysis, therefore, is 

informed not only by the text and structure of § 3583 in 

its entirety, but also the text and structure of the 

Sentencing Reform Act, §§ 3551-3586, which 

established the sentencing regime.
21

Section 3583 pertains to supervised release. 18 

U.S.C. § 3583. This section establishes that supervised 

release may be imposed initially as a component of a 

sentence. Id. § 3583(a). In addition, once imposed, 

supervised release may be terminated, extended, or 

revoked. Id. § 3583(e)(1), (2), and (3). If supervised 

release is revoked and a term of imprisonment is 

imposed, that imprisonment may be followed by another 

term of supervised release. Id. § 3583(h). 

Revocation of supervised release takes two forms: 

discretionary under § 3583(e) and mandatory under 

§ 3583(g). Doe, 617 F.3d at 772. Section 3583(e)

establishes a three-step process for discretionary 

revocation: (1) a finding by the court that the defendant 

violated a condition of supervised release; (2) a decision 

by the court to revoke the defendant’s term of supervised 

release; and (3) following revocation, the imposition of a 

penalty.11 Significantly, subsection (e) directs that the

 

11 18 U.S.C. § 3583(e)(3) (“The court may, after 

considering [certain] factors set forth in § 3553(a) . . . 

revoke a term of supervised release, and require the 

defendant to serve in prison all or part of the term of 

supervised release authorized by statute for the offense 

that resulted in such term of supervised release. . . if the 

court . . . finds by a preponderance of the evidence that 

the defendant violated a condition of supervised 

release”).
22

court’s decision to revoke at step two must be made 

“after considering” certain factors set forth in § 3553(a). 

18 U.S.C. § 3583(e). 

Section 3583(g) pertains to mandatory revocation. 

The process set out in this subsection is similar to that of 

§ 3583(e) but eliminates step (2) and makes no reference 

to § 3553(a). Thus, this subsection entails only two 

steps: (1) a finding by the court that one of the four 

circumstances in § 3583(g)(1)–(4) occurred; and (2) if so, 

revocation is automatic and the court must impose a 

“term of imprisonment” as a penalty. 

This two-step process makes clear why Congress 

referred in § 3583(e) to the § 3553(a) sentencing factors, 

and why it did not need to mention § 3553(a) in the 

mandatory revocation provision in § 3583(g). Congress 

explicitly tied consideration of the § 3553(a) factors in 

§ 3583(e) to the exercise of discretion by a district court 

in deciding whether to “(1) terminate a term of 

supervised release[,] . . .(2) extend a term of supervised 

release[,] . . . (3) revoke a term of supervised release[,] . . 

. or (4) order the defendant to remain at his place of 

residence.” 18 U.S.C. § 3583(e). The mandatory 

revocation provision, however, affords the district court 

no discretion in making a decision about revocation. 

Once § 3583(g) is triggered, the revocation is automatic. 

There was no need, therefore, for Congress to instruct

that the § 3553(a) factors should be considered prior to 
23

making a decision about mandatory revocation under 

§ 3583(g). 

Moreover, there was no need to refer to § 3553(a) 

in enacting this provision on mandatory revocation. The 

text of § 3583(g) specifies that when any of the 

enumerated circumstances exist, revocation is mandated 

and a district court “shall . . . require the defendant to 

serve a term of imprisonment.” The penalty dictated by 

§ 3583(g)–“a term of imprisonment”–is not unique to

revocation of supervised release under § 3583(g). It is, 

rather, a common component of most sentences that may 

be imposed following a defendant’s conviction. See 18 

U.S.C. § 3582 (governing the imposition or modification 

of a term of imprisonment); United States v. Goodson, 

544 F.3d 529, 537 (3d Cir. 2008) (listing the penalties 

that may be a component of a sentence). Section § 3582 

itself provides that a “court, in determining whether to 

impose a term of imprisonment, and . . . in determining 

the length of the term, shall consider the factors set forth 

in section 3553(a) to the extent they are applicable[.]” 

Id. § 3582(a) (emphasis added). Thus, the usage of the 

statutory phrase “term of imprisonment” in § 3583(g) 

incorporates both § 3582 and its directive to consider the 

§ 3553(a) sentencing factors. 

Section 3553(a)’s applicability to mandatory 

revocation proceedings fits neatly within the sentencing 

regime established by the Sentencing Reform Act. 

Section 3553(a) provides that “in determining the 
24

particular sentence to be imposed, [a court] shall 

consider” seven enumerated factors. 18 U.S.C. 

§ 3553(a)(1)–(7). Each of the statutory provisions

pertaining to the various components of a sentence also 

directs that the § 3553(a) factors should be considered. 

See 18 U.S.C. § 3562 (directing that the court, “in 

determining whether to impose a term of probation, and . 

. . the length . . . and conditions of probation, shall 

consider the factors set forth in section 3553(a)); § 3572 

(the court, “[i]n determining whether to impose a 

fine . . . shall consider,” inter alia, the § 3553(a) factors);

§ 3583(c) (inclusion of supervised release as a part of a 

sentence requires consideration of certain § 3553(a) 

factors). Indeed, consideration of the § 3553(a) factors is 

not limited to determining the type of penalty and the 

attributes of that penalty. Section 3553(a) also applies 

when a court decides whether multiple sentences are to 

run concurrently or consecutively. 18 U.S.C. § 3584(b). 

Nothing in the language of § 3553(a) limits its 

application to a revocation proceeding under § 3583(g). 

Nor does § 3582(a) include language concerning the 

factors to be considered in determining the length of a 

term of imprisonment that renders § 3553(a) inapplicable 

to a mandatory revocation proceeding. And the 

mandatory revocation provision itself does not prohibit 

consideration of the § 3553(a) factors in setting the 

length of the term of imprisonment required by the 

statute. 18 U.S.C. § 3583(g); Doe, 617 F.3d at 772. 
25

Accordingly, we hold that the text and structure of 

§ 3583 and the Sentencing Reform Act require a district 

court to consider the sentencing factors in § 3553(a) in 

determining the duration of the term of imprisonment 

imposed under the mandatory revocation provision in 

§ 3583(g).12

Our holding should not be unexpected. It is 

consistent with this court’s jurisprudence concluding that 

the § 3553(a) factors are relevant in revocation 

proceedings. In United States v. Clark, 726 F.3d 496 (3d 

Cir. 2013), we considered whether a district court that 

had revoked supervised release under § 3583(e)(3) had 

erred by imposing both a “term of imprisonment” and a 

term of supervised release without conducting separate 

§ 3553(a) analyses for each penalty. We concluded that a 

single § 3553(a) analysis was sufficient. In reaching this 

conclusion, we recognized that, in a revocation 

proceeding, § 3583(h) permits a district court to impose a 

term of supervised release to follow any term of 

imprisonment. Although § 3583(h) does not reference

the § 3553(a) sentencing factors, we held that the 

sentencing factors are to be considered in imposing an 

additional term of supervised release because they are 

“listed in 18 U.S.C. § 3583(c), the provision governing 

 

12 We limit our holding to the factors that must be 

considered when imposing a term of imprisonment 

following mandatory revocation under § 3583(g). 
26

the imposition of the initial term of supervised release.” 

Id. at 501. See also United States v. Santiago-Rivera, 594 

F.3d 82, 84 (1st Cir. 2010) (reasoning that even though 

§ 3583(h) “does not list the [§ 3553(a)] factors to be 

considered in imposing a term of supervised release as a 

part of a revocation sentence, it is a reasonable inference 

that the factors are the same as those to be considered in 

imposing an initial term of supervised release”); United 

States v. Bungar, 478 F.3d 540, 542-43 (3d Cir. 2007) 

(concluding, without objection, that our review of an 

appeal of a mandatory revocation order is “for 

reasonableness” and that “to be reasonable the record 

must demonstrate the sentencing court gave meaningful 

consideration to the § 3553(a) factors”).

Finally, our holding is consistent with the overall 

sentencing scheme of the Sentencing Reform Act, which 

repeatedly tethers the exercise of discretion by a 

sentencing judge to the factors set out in § 3553(a). It 

would be odd indeed for Congress, after specifying that 

the § 3553(a) factors must inform a district court’s 

exercise of discretion in imposing each component of a 

sentence, see §§ 3553(a), 3562(a), 3572(a), 3582(a), 

3583(c), to then give a district court carte blanche in 

imposing a term of imprisonment following mandatory 

revocation of supervised release under § 3583(g). See 

Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 375 

(3d Cir. 2012) (observing that the principles of statutory 
27

interpretations instruct that courts should “avoid 

constructions that produce odd or absurd results”).

IV.

A.

Having concluded that the District Court was 

obliged to consider the § 3553(a) factors in deciding the 

length of the term of imprisonment to impose following 

revocation under § 3583(g), we turn to Thornhill’s 

assertion that the District Court erred procedurally. In 

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 

2006), we established a “three-step sentencing process.” 

After calculating the guideline sentence and formally 

ruling on any motions of the parties, a sentencing court 

must then exercise its discretion by considering the 

relevant § 3553(a) factors in determining an appropriate 

sentence. Thornhill contends that the District Court erred 

at the third step of this process by failing to: (1) give 

rational and meaningful consideration to the relevant § 

3553(a) factors; (2) adequately explain the sentence, 

including an explanation for any deviation from the 

guidelines; and (3) respond to defense counsel’s 

colorable arguments for mitigation. The burden is on 

Thornhill to demonstrate that the District Court’s 

sentence is unreasonable. United States v. Cooper, 437 

F.3d 324, 332 (3d Cir. 2006), abrogated on other 

grounds by Kimbrough v. United States, 552 U.S. 85 

(2007).
28

We review for abuse of discretion. United States 

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). In 

Tomko, we emphasized that “it is essential that district 

courts make an ‘individualized assessment based on the 

facts presented.’” Id. (quoting Gall v. United States, 552 

U.S. 38, 50 (2007)). We instructed that “it is equally 

important that district courts provide courts of appeals 

with an explanation ‘sufficient for us to see that the 

particular circumstances of the case have been given 

meaningful consideration within the parameters of 

§ 3553(a).’” Id. (quoting United States v. Levinson, 543 

F.3d 190, 196 (3d Cir. 2008)). 

“Meaningful consideration” of the § 3553(a) 

factors is also required in revocation proceedings. In 

Bungar, we declared that in order for the penalty 

imposed upon revocation of supervised release “to be 

reasonable the record must demonstrate that the 

sentencing court gave ‘meaningful consideration’” to the 

§ 3553(a) factors. 478 F.3d at 543. This does not mean 

that the sentencing court is required to “‘discuss and 

make findings as to each of the § 3553(a) factors if the 

record makes clear the court took the factors into account 

in sentencing.’” Id. (quoting Cooper, 437 F.3d at 329). 

The Supreme Court has instructed that the 

“sentencing judge should set forth enough to satisfy the 

appellate court that he has considered the parties’ 

arguments and has a reasoned basis for exercising his 

own legal decisionmaking authority.” Rita v. United 
29

States, 551 U.S. 338, 356 (2007). And it is, of course, 

the sentencing judge who “has access to, and greater 

familiarity with, the individual case and the individual 

defendant before him than the . . . appeals court.” Id. at 

357-58. “Because of the ‘fact-bound nature of each 

sentencing decision,’ there is no ‘uniform threshold’ for 

determining whether a court has supplied a sufficient 

explanation for its sentence.” United States v. Merced, 

603 F.3d 203, 215 (3d Cir. 2010) (quoting Tomko, 562 

F.3d at 567). In some cases a brief statement will suffice, 

while in others a longer explanation may be necessary. 

Id. See also Rita, 551 U.S. at 358 (concluding that 

sentencing court’s statement of reasons was “brief”, but 

“legally sufficient”). What a court may not do, however, 

is ignore a colorable argument raised by a party if it 

concerns the applicability of one the § 3553(a) factors. 

Id.

When a district judge departs from the guideline 

range, he must “explain his conclusion that an unusually 

lenient or an unusually harsh sentence is appropriate in a 

particular case with sufficient justifications.” Gall, 552 

U.S. at 46. Yet we are mindful that “‘extraordinary’ 

circumstances” are not required “to justify a sentence 

outside the Guidelines range.” Id. at 47. We will not 

regard a sentence as unreasonable simply because we, as 

an appellate panel, might conclude that a different 

sentence would have been appropriate. Id. at 51. Rather, 

we must take into account the “extent of the deviation,” 
30

and “give due deference to the district court’s decision 

that the § 3553(a) factors, on a whole, justify the extent 

of the variance.” Id. 

B.

The parties’ arguments during the revocation 

proceeding are clear from the record – just as they no 

doubt were to the District Judge. The defense urged him,

despite § 3583(g)’s applicability, not to revoke 

Thornhill’s supervised release and not to impose a term 

of imprisonment. The government argued that the Court 

could not expect any change from Thornhill and it asked 

the Court to impose a three year term of imprisonment 

consisting of a one year term on each conviction, to run 

consecutively. In other words, the parties were at polar 

extremes: the defense urged the court to ignore the

mandates of § 3583(g) while the government advocated a 

sentence of three years.

The record confirms that the able District Judge 

listened to and understood these arguments. Thornhill’s 

argument was contrary to the dictates of § 3583(g), and 

the District Court recognized this. He explained that 

§ 3583(g) required revocation because Thornhill had 

tested positive for marijuana on more than three 

occasions in one year. Although the defense did not

explicitly advance the applicability of the exception in 

§ 3583(d) that permits relaxing the mandate of 

imprisonment under § 3583(g), the Court on its own
31

addressed the exception. That exception was not 

justified, the Court explained, based on Thornhill’s

failure to attend her current substance abuse and mental 

health programs, as well as her inability to remain drug 

free. In short, imprisonment was a certainty because of 

§ 3583(g)’s applicability.

Thornhill argued for mitigation. Her problems, 

she claimed, were attributable to her having witnessed 

her brother’s murder, and dealing with the emotional 

trauma resulting from both the murder of one of her sons

and the serious injuries of another. These circumstances 

were fully considered by the District Court. The judge 

listened attentively to Thornhill’s allocution. Thornhill

explained that she “did not come out of prison to 

disrespect” the Court, but “[t]he unexpected trauma . . . 

was something that happened in my life.” The District 

Judge directly responded to Thornhill, telling her that he

“personally” did not “feel as though you’ve disrespected 

me.” He then acknowledged the “personal issues” 

Thornhill had described and explained to her that the 

“law is the law.” In addition, at the conclusion of the 

proceeding the Court requested the United States 

Marshal’s Office to keep Thornhill in custody locally in 

the event that she were subpoenaed to appear in the trial 

of her son’s murderer. Contrary to Thornhill’s argument, 

we conclude that the District Court fully considered and

responded to defense counsel’s colorable arguments for 

mitigation.
32

The record demonstrates that the District Court 

also meaningfully considered the relevant § 3553(a) 

factors. Consistent with § 3553(a)(1), the Court fully 

considered the nature and circumstances of the 

violations, together with Thornhill’s history and 

characteristics. At the beginning of the hearing, the 

Court reviewed its almost-ten-year involvement with 

Thornhill’s criminal cases since 2003. He noted her 

three convictions for bank fraud and the previous 

revocation proceedings. He pointed out the substantial 

variance he had granted on the 2007 Conviction and the 

first revocation proceeding, resulting in a sentence to one

day of imprisonment and an additional period of 

supervised release. As noted above, the Court knew of 

the personal difficulties Thornhill faced while on 

supervised release. After hearing arguments from the 

parties, the Court stated that it was “aware of” 

Thornhill’s history and had “considered the extensive 

files in these cases, the presentence reports and addenda

regarding the initial sentencings, and the Court’s 

previous revocation . . . as well as [her] responses to the 

allegations of the petition and the government’s 

evidence.” The Court then rendered its findings 

concerning the violations set forth in the Sixth Petition. 

Our review of the record compels our conclusion that the 

Court’s consideration of § 3553(a)(1) was more than 

adequate. To conclude otherwise would be to ignore the 

District Judge’s statement that “I’ve had nine years of 
33

experience with you, and it’s been time, after time, after 

time.” 

Section § 3553(a)(2) directs a sentencing court to 

consider the need for the sentence “to reflect the 

seriousness of the offense, to promote respect for the 

law,” “to provide just punishment,” to deter further

criminal conduct, “to protect the public” and to provide 

correctional treatment in the most effective manner. 18 

U.S.C. § 3553(a)(2)(A), (B), (C), and (D). Thornhill’s 

recidivism, and the applicability of § 3583(g) requiring 

the imposition of a term of imprisonment, brought these

§ 3553 considerations to the forefront of this revocation 

hearing. We are well-satisfied that the Court took these 

factors into account. 

The Court’s dialogue with defense counsel is 

telling. Defense counsel argued that the Court did not 

have to find a violation and that Thornhill just “need[ed] 

structure.” The Court replied: “That’s what we’ve been 

trying to give her . . . She’s been here, and been here, 

and been here. . . . So how else are we going to 

accomplish that, without forcing her into a situation.” 

This exchange clearly reveals the Court’s conclusion that 

mere supervision had been ineffective in curbing 

Thornhill’s substance abuse, deterring her criminal 

conduct, or compelling her compliance with a regimen of 

mental health treatment. In short, incapacitation and 

deterrence had become necessary. 
34

The District Court then asked the probation officer

for her view. She expressed her belief that Thornhill 

“would not be compliant” with any program offered 

outside a “lock-down facility.” She noted that, despite 

her attempts to work with Thornhill, “[e]very step of the 

way . . . she fail[ed] to comply with any directive.” The 

probation officer agreed that Thornhill “needs the 

structured environment . . . [of] prison.” Thereafter, the

Court again signaled the need for incapacitation, stating 

that Thornhill was unmanageable when she was not in a 

controlled environment and that she was “unmanageable 

in a free society environment.” 

As required by § 3553(a)(3) and (4), the District 

Judge addressed the kinds of sentences available and the 

applicable ranges of sentence for the violations with 

respect to each of the convictions.13 He also addressed 

 

13 Section 3553(a)(5) was not applicable to this 

revocation proceeding. Section § 3553(a)(6) was not 

relevant because there was no need to avoid unwarranted 

sentence disparities in this revocation proceeding. 

Section 3553(a)(7) requires consideration of the “need to 

provide restitution to any victims of the offense.” 

Because Thornhill’s failure to pay restitution was a 

violation alleged in the Sixth Petition, this sentencing 

factor was manifestly relevant. The Court appropriately 

addressed this factor, making a finding that Thornhill had 

not paid any restitution since June 13, 2011. Thornhill’s 
35

the grade of the various violations, pointed out that the 

maximum term of imprisonment on each conviction was 

36 months, and noted the increasing guideline range for 

each conviction in light of the expanded criminal history 

category on the latter two convictions. And he noted the 

advisory nature of the sentencing ranges. This discussion

was sufficient to demonstrate consideration of 

§ 3553(a)(3) and (4).14 We therefore reject Thornhill’s 

contention that the District Court failed to adequately 

consider the § 3553(a) factors.

 

dire financial condition, however, obviated the need to 

further address this factor.

14 Section 3553(a)(4)(B) directs a sentencing court to 

consider the applicable policy statements. The 

commentary to United States Sentencing Guideline 

(U.S.S.G.) § 7B1.4 provides that “[w]here the original 

sentence was the result of a downward departure . . . that 

resulted in a sentence below the guideline range 

applicable to the defendant’s underlying conduct, an 

upward departure may be warranted.” U.S.S.G. § 7B1.4, 

applic. note 4 (2012). Although the District Court did 

not specifically refer to this policy statement, it is 

nonetheless informative because of the substantial 

downward variance Thornhill received on the 2007 

Conviction. This variance was an aspect of Thornhill’s 

history, and the Court made specific reference to it. 
36

Thornhill maintains that the Court failed to 

adequately explain the sentence that it ultimately decided 

upon. We acknowledge that the sentencing judge “might 

have said more.” Rita, 551 U.S. at 359. Rita instructs, 

however, that “context and record” are important in 

determining whether the “sentencing judge considered 

the evidence and arguments.” Id. We conclude that the 

record and context make clear that the District Court 

fully considered all of the evidence and the arguments of 

the parties. For that reason, we are hard-pressed to find 

that the District Court’s order was procedurally 

unreasonable or that it constituted an abuse of discretion. 

At the time of this revocation proceeding, the judge had 

nearly a decade of experience with Thornhill. He had 

demonstrated leniency in his efforts to help her. After 

advising the parties that he was fully aware of Thornhill’s

history and her characteristics and that he had reviewed 

her extensive files, the District Judge emphasized the 

need for structure in the sentence he must impose. 

Thornhill’s violations were not a breach of trust on a 

single conviction. The Court was fully aware that it was 

imposing three separate penalties on three separate 

convictions. His words adequately conveyed that a 

lengthy term of imprisonment was called for under § 

3583(g) because his more lenient exercises of discretion 

had neither deterred Thornhill from criminal conduct nor 

adequately conveyed to her the serious nature of her 

circumstances. 
37

In sum, we conclude that the District Court’s order 

revoking Thornhill’s terms of supervised release and 

imposing three separate penalties was not procedurally 

unreasonable.

C.

Thornhill also challenges the substantive 

reasonableness of her sentence. In her view, the District 

Court’s procedural errors rendered her sentence 

substantively unreasonable. Because we have concluded 

that the District Court did not err procedurally, we 

conclude that there is no merit to her substantive 

challenge. See Tomko, 562 F.3d at 568 (instructing that 

“if the district court’s sentence is procedurally sound, we 

will affirm it unless no reasonable sentencing court 

would have imposed the same sentence on the particular 

defendant for the reasons the district court provided”). 

IV.

In sum, we are mindful of the Supreme Court’s 

observation in Rita that “[t]he sentencing judge has 

access to, and greater familiarity with, the individual case 

and the individual defendant before him than the 

Commission or the appeals court.” 551 U.S. at 357-58. 

That is especially so in this case, where the District Court 

had followed closely over time Thornhill’s repeated 

violations of her supervised release. Given the District 

Judge’s experience with Thornhill and what we consider 
38

to have been his measured treatment of her violations, we 

conclude that the sentences should not be disturbed.

We will affirm.
UNITED STATES v. THORNHILL 

Nos. 13-2876; 13-2877; 13-2878

 

RENDELL, Circuit Judge, Concurring in part and Dissenting 

in part:

I agree with my colleagues that the District Court was 

required to consider the factors set forth in 18 U.S.C. § 

3553(a) in sentencing Ms. Thornhill, and I readily join their

eloquent and well-reasoned opinion on that issue.

I part ways with the majority’s disposition, however, 

because I would remand so that the District Court can

meaningfully consider those sentencing factors in connection 

with the mandatory imprisonment of Ms. Thornhill upon 

revocation of her supervised release. The length of her term 

of imprisonment is squarely at issue, and the § 3553(a) factors 

should be weighed. This is especially true because the 

District Court varied upward in giving Ms. Thornhill a 

sentence of three years. 

Until today, we have never addressed whether the § 

3553(a) sentencing factors must be considered in the context 

of mandatory revocation of supervised release, under 

§ 3583(g), and, indeed, few other Courts of Appeals have 

discussed this issue at length. If anything, as the Government 

points out, our case law previously hinted that consideration 

of the factors was appropriate, but not required, in this 

context. See United States v. Doe, 617 F.3d 766, 772 (3d Cir. 

2010). However, today we clearly hold for the first time that 
2

such consideration is mandatory. The majority finds that the 

District Court anticipated this holding and meaningfully 

considered the sentencing factors under § 3553(a). 

In the usual case, we might debate whether the 

scattered statements of a district court resemble a discussion

of the pertinent sentencing factors. However, here, the 

District Court had no inkling that an analysis of the § 3553(a)

factors was required, and as a consequence, never mentioned 

the factors once.

1

 This was through no fault of the District 

Court, conducted as it was by a “judge [and] not a prophet,”

lacking any reason to anticipate the requirement we set out 

today. See United States v. Brown, 595 F.3d 498, 527 (3d 

Cir. 2010). But fairness dictates that when we announce a 

new rule that could impact the length of the sentence imposed

a remand for resentencing is appropriate. See id. (remanding 

for resentencing where a district court, “[l]acking . . . 

clairvoyance,” failed to anticipate requirement to consider 

§ 3553(a) factors post-Booker); United States v. Manzella, 

475 F.3d 152, 162 (3d Cir. 2007) (remanding for resentencing 

upon holding that prison sentences could not be imposed for 

rehabilitative purposes). 

We need only review the record briefly to determine 

that the District Court did not, in fact, foresee our holding and 

meaningfully consider the § 3553(a) factors. The District 

Court provided no explanation for its three-year, aboveguidelines sentence, beyond the bare statement that Ms. 

Thornhill had “proven [her]self to be unmanageable in a free 

 

1

“§ 3553(a)” appears only once in the transcript, in Ms. 

Thornhill’s objection at the conclusion of sentencing. (App. 

402.)
3

society environment.” (App. 400.)2 A defendant’s 

“manageability,” whatever that might mean, is not included 

among the sentencing considerations listed under § 3553(a). 

Thus, the sole explanation provided by the District Court does 

not show rational and meaningful consideration of the § 

3553(a) factors.

3

 This alone necessitates a remand for 

resentencing.

Likewise, the District Court’s other asides and 

statements in the sentencing hearing do not reveal why Ms. 

Thornhill was sentenced to three years’ imprisonment, let 

alone indicate that the sentence was based on the § 3553(a) 

 

2

Though this was the sole explanation provided upon the 

imposition of sentence, the majority makes only a passing 

reference to it, noting that the comment “signaled the need for 

incapacitation . . . .” (Majority Op. at 34.) The remainder of 

the statements cited by the majority were made at different 

points in the hearing, some during testimony, others during 

argument, and all well before sentence was imposed, such 

that there is no indication which, if any of them, factored into 

the District Court’s decision to sentence Ms. Thornhill above 

the guidelines.

3

Rita v. United States, 551 U.S. 338, 359 (2007), cited by the 

majority for the proposition that the “context and the record” 

can support the sentence here, is inapposite. That case 

concerned a within-guidelines sentence, and the Supreme 

Court found that a specific explanation was not required in 

such a “conceptually simple” case. Id. at 359. By contrast, 

the Court noted, “[w]here the judge imposes a sentence 

outside the Guidelines, the judge will explain why he has 

done so.” Id. at 357. The sentence here was above the 

guidelines, and no explanation was given. 
4

factors. For example, the Court’s most detailed comment

was, in full, as follows: 

The Court: That’s what we’ve been trying to give her

[defense counsel]. She’s been here, and been here, and 

been here. That’s what the whole plan has been. [The 

probation officer] has worked hard to try to give her a 

structure, and give her psychiatric treatment, the 

mental health treatment, the drug counseling. I mean, 

that’s what we have been doing. So, how else are we 

going to accomplish that, without forcing her into a 

situation where she has to do what she has to do?

(App. 384.) The majority cites part of this remark as 

evidence of the Court’s consideration of § 3553(a)(2), 

involving incapacitation and deterrence. (Majority Op. at 33.) 

But far from addressing any of the sentencing factors, the 

Court was asking how else it was going to give Ms. Thornhill 

“a structure, and give her psychiatric treatment, the mental 

health treatment, the drug counseling,” except through prison 

time. (App. 384.) Thus, we cannot know if the Court may 

have impermissibly lengthened Ms. Thornhill’s prison term to 

promote rehabilitation.4 I find that this comment does not 

represent meaningful consideration of a sentencing factor, but

 

4

That is, the District Court potentially violated the holding of 

Tapia v. United States, 131 S. Ct. 2382, 2393 (2011): “a court 

may not impose or lengthen a prison sentence to enable an 

offender to complete a treatment program or otherwise to 

promote rehabilitation.” Several Courts of Appeals have 

found this holding to extend to sentences imposed upon 

revocation of supervised release. See, e.g., United States v. 

Molignaro, 649 F.3d 1, 5 (1st Cir. 2011).
5

rather evidences a troubling ambiguity that should be cleared 

up by a remand for resentencing.

More generally, where a defendant is sentenced 

without the slightest indication that the § 3553(a) factors were 

considered, our case law dictates a remand. In United States

v. Clark, cited by the majority, we held that consideration of 

the § 3553(a) factors had been inadequate for a withinguidelines sentence, even though the district court

acknowledged that it had to consider them and even provided 

a “full discussion of the first relevant factor.” 726 F.3d 496, 

503 (3d Cir. 2013). We held the subsequent “rote recitation 

of the relevant factors . . . cannot support a conclusion that the 

record as a whole reflects rational and meaningful 

consideration of the factors enumerated in 18 U.S.C. 

§ 3553(a). Nor can we determine, from the record before us, 

that the court reasonably applied those factors to the 

circumstance of the case.” Id. (citations omitted).

Accordingly, we remanded for resentencing.

Unlike Clark, the term of imprisonment in this case is

above the guidelines range. And unlike Clark, the District 

Court here did not discuss any of the sentencing factors, or 

even list them in a rote manner. See also United States v. 

Goff, 501 F.3d 250, 256 (3d Cir. 2007) (remanding for 

resentencing where, inter alia, “the District Court did not 

mention § 3553(a) when it imposed its sentence, or the 

necessity of applying the § 3553(a) factors under our case 

law”). Nor did the Court ever refer to the substance of the 

factors, such as: the need to provide just punishment, 

adequate deterrence and protection of the public, as well as 

the need to avoid unwarranted sentencing disparities. In sum, 

the record provides no basis to conclude that the District 
6

Court anticipated our decision today and meaningfully 

considered the § 3553(a) factors. Indeed, it would be 

surprising if the record revealed otherwise.

We simply cannot know how meaningful 

consideration of the § 3553(a) factors, which we now require,

would have affected Ms. Thornhill’s sentence. Speculation 

on our part as to what the Court might have been considering, 

and whether those reasons coincide with § 3553(a), cannot be 

enough to uphold Ms. Thornhill’s above-guidelines sentence. 

In short, Ms. Thornhill deserves to have the rule announced 

today applied to her case. I respectfully dissent from the 

majority’s disposition.