PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4401

JAMES BERNARD BENNETT, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Dever III, District Judge.

(5:05-cr-00010-D-1; 5:08-cr-00068-D-1)

Argued: September 19, 2012

Decided: October 25, 2012

Before WILKINSON and THACKER, Circuit Judges,

and Michael F. URBANSKI, United States District Judge

for the Western District of Virginia,

sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Thacker and Judge Urbanski joined.

COUNSEL

ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Kristine L. Fritz, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public

Defender, Stephen C. Gordon, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. Thomas

G. Walker, United States Attorney, Jennifer P. May-Parker,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

OPINION

WILKINSON, Circuit Judge:

In Tapia v. United States, the Supreme Court held that the

Sentencing Reform Act of 1984 does not permit federal courts

to consider a defendant’s rehabilitative needs when imposing

a prison sentence or determining the length thereof. 131 S. Ct.

2382 (2011). This case presents the question whether Tapia

applies in the context of resentencing on the revocation of

supervised release. We hold that it does. Here, however, the

transcript of the revocation hearing makes plain that the

"egregious breach of trust" committed by the defendant in

repeatedly violating the conditions of supervised release—

rather than any rehabilitation rationale—drove the sentencing

decision. We see no reason to direct a remand that would

serve no purpose, and we accordingly affirm the judgment of

the district court.

I.

The U.S. District Court for the Eastern District of North

Carolina convicted defendant James Bernard Bennett, Jr., of

being a felon in possession of a firearm under 18 U.S.C.

§§ 922(g)(1) and 924 (the "first federal conviction"). On Janu2 UNITED STATES v. BENNETT
ary 10, 2006, he was sentenced to fifty months of imprisonment followed by thirty-six months of supervised release.

During the ensuing prison term, Bennett absconded from a

halfway house. He was convicted of escape in violation of 18

U.S.C. § 751(a) (the "second federal conviction") and sentenced on March 11, 2009, to seventeen months in prison, to

run consecutively with the sentence for his first federal conviction, as well as thirty-six months of supervised release, to

run concurrently with the supervised release associated with

his first federal conviction.

Bennett’s supervised release on both convictions began on

July 28, 2009. His probation officer filed a motion for revocation on October 1, 2009, and amended it on January 24, 2011,

setting forth two grounds for revocation (as well as an additional ground that the government later withdrew). First, in

September 2009, Bennett was arrested and charged with robbery with a dangerous weapon and possession of a firearm by

a felon. He pleaded guilty in state court in January 2011 to

conspiracy to commit common law robbery (the "state conviction") and was sentenced to eleven to fourteen months in

custody, with credit for 450 days served. Second, Bennett

tested positive for cocaine use on three occasions during September 2009.

The district court held a revocation hearing on April 5,

2011. Bennett admitted the conduct underlying the motion for

revocation. The court found the imprisonment range suggested by the Sentencing Guidelines to be eighteen to twentyfour months on the revocation of the term of supervised

release associated with the first federal conviction (for being

a felon in possession of a firearm) and twenty-four months on

the revocation of the term of supervised release associated

with the second federal conviction (for escape). 

The defense asked for an eighteen-month sentence on each

of the two revocations, to run concurrently. Defense counsel

cited Bennett’s responsibilities as a father of four children, his

UNITED STATES v. BENNETT 3
relative youth (at age twenty-six), his family support, and the

fact that he had recently attempted—albeit unsuccessfully—to

get a GED and a job. He also emphasized that Bennett had

already spent fourteen months in custody on the state conviction. The government, by contrast, urged the court to impose

the maximum punishment on each revocation and to run the

sentences consecutively. The government drew support from

the fact that Bennett had received a downward departure on

the initial sentence for his first federal conviction and argued

that, by engaging in criminal acts so soon after leaving prison,

Bennett showed that he "has not learned his lesson and apparently has no regard for the rights of others and does not hesitate to engage in violent behavior even after serving a federal

sentence."

The district court sentenced Bennett to twenty-four months

in prison on each revocation, with the sentences to run consecutively (for a total of forty-eight months). The court began

its explanation by declaring that "the focus of a revocation

proceeding is the breach of trust associated with being on

supervised release and then continuing to engage in criminal

behavior"—a theme to which the judge repeatedly returned.

The court also stated that "it’s clear that [Bennett], based on

his positive cocaine tests, needs intensive substance abuse

treatment. So, the court will impose a sentence that provides

ample time for that." And when imposing the sentence on the

second revocation, the judge noted that the sentence was

meant to "reflect the serious nature of the breach of trust, to

provide ample time for substance abuse treatment." The court

also recommended that Bennett "receive intensive substance

abuse treatment" in prison.

II.

A.

Bennett argues that the district court’s invocation of his

need for substance abuse treatment in explaining his sentence

4 UNITED STATES v. BENNETT
constitutes reversible error under Tapia v. United States, 131

S. Ct. 2382 (2011). The Sentencing Reform Act of 1984 generally instructs courts to consider a number of factors when

imposing a sentence. See 18 U.S.C. § 3553(a). One of these

factors is "the need for the sentence imposed . . . to provide

the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most

effective manner." Id. § 3553(a)(2)(D). At issue in Tapia was

the proper interpretation of 18 U.S.C. § 3582(a), which provides that 

[t]he 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. 

Tapia held that this statute "precludes federal courts from

imposing or lengthening a prison term in order to promote a

criminal defendant’s rehabilitation," establishing the rule that

"when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—

because imprisonment is not an appropriate means of pursuing that goal." 131 S. Ct. at 2385, 2389. 

B.

This court must first decide whether Tapia’s teaching

applies to resentencing on the revocation of supervised release

in addition to the context addressed by Tapia itself, initial

sentencing on a criminal conviction. We think that Tapia does

apply to revocation sentencing.

Most fundamentally, the text of the Sentencing Reform Act

is clear: courts must "recogniz[e] that imprisonment is not an

appropriate means of promoting correction and rehabilitaUNITED STATES v. BENNETT 5
tion." 18 U.S.C. § 3582(a) (emphasis added). To be sure, the

provision governing the revocation of supervised release does

not include the precise word "imprisonment," instead allowing a court to "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."

Id. § 3583(e)(3) (emphasis added). This, however, strikes us

as a distinction in search of significance. "Imprisonment" is

not some magic word: incarceration constitutes "imprisonment" whether imposed upon an initial conviction or upon

revocation of supervised release. Indeed, "imprisonment"

appears elsewhere in § 3583 to denote the latter. See, e.g., id.

§ 3583(g)(4); id. § 3583(h); id. § 3583(i); id. § 3583(k).*

The Supreme Court endorsed this line of reasoning in

Tapia by interpreting "imprisonment" broadly (as encompassing both the initial decision to incarcerate an offender and the

subsequent decision for how long). "‘Imprisonment,’" the

Court specified, "most naturally means ‘[t]he state of being

confined’ or ‘a period of confinement.’" 131 S. Ct. at 2389

(quoting Black’s Law Dictionary 825 (9th ed. 2009)). These

capacious definitions obviously encompass incarceration in

the revocation context.

*The First Circuit has described a somewhat different distinction, pointing out that § 3583(e) instructs courts to look to a variety of § 3553(a) factors (including (a)(2)(D)) when taking a variety of actions relating to

supervised release (terminating, extending, revoking, or modifying it) but,

unlike § 3582(a), does not contain an explicit caveat not to consider rehabilitation when sentencing someone to prison. See United States v. Molignaro, 649 F.3d 1, 3 (1st Cir. 2011). Our result still obtains, however.

Because of the synonymous nature of the relevant terms, a court’s decision

to sentence a defendant to a term "in prison" under § 3583(e)(3) falls

under § 3582(a)’s proscription against considering rehabilitative needs

when imposing "imprisonment." The Tapia Court’s unanimous conclusion

was that where actual incarceration is involved, Congress did not intend

for courts to consider rehabilitation in determining the fact or length of the

sentence. So long as the relevant statute refers to imprisonment, we do not

think that the Court’s view would shift with the context. 

6 UNITED STATES v. BENNETT
Moreover, Tapia supports this conclusion not only in language but also in logic. Beyond the text of § 3582(a), the

Supreme Court found "[e]qually illuminating" the fact that

"when Congress wanted sentencing courts to take account of

rehabilitative needs, it gave courts the authority to direct

appropriate treatment for offenders"—as in the context of sentencing to probation or to supervised release. Id. at 2390. By

contrast, when Congress did not want courts to consider rehabilitative needs, it did not accord them binding power to order

such treatment—as in the context of sentencing to imprisonment. If Congress had intended "to allow courts to base prison

terms on offenders’ rehabilitative needs, it would have given

courts the capacity to ensure that offenders participate in

prison correctional programs. . . . That incapacity speaks volumes." Id. at 2390-91. The First Circuit concluded that "[t]he

unanimous Supreme Court’s assessment of the significance of

this fact about judicial authority makes it legally, and not just

factually, pertinent to this case, even though Tapia dealt with

initial sentencing, whereas resentencing [on the revocation of

supervised release] is involved here." United States v. Molignaro, 649 F.3d 1, 4 (1st Cir. 2011). 

We thus hold that Tapia applies to the revocation context

too.

C.

Several caveats are in order. First, our interpretation of

§ 3582(a) in no way compromises the ability of a district

court to revoke a term of supervised release and imprison the

defendant if the court "finds by a preponderance of the evidence that the defendant violated a condition of supervised

release." 18 U.S.C. § 3583(e)(3). By law, the conditions of

release must include the "explicit" requirements "that the

defendant refrain from any unlawful use of a controlled substance" and submit to drug testing (unless an exception is

warranted). Id. § 3583(d). Indeed, "[i]f the defendant . . . tests

positive for illegal controlled substances more than 3 times

UNITED STATES v. BENNETT 7
over the course of 1 year," revocation followed by imprisonment is mandatory. Id. § 3583(g)(4). Today’s decision does

not—and could not—curtail the authority accorded district

courts by Congress under this statutory scheme.

Second, as relevant to both initial sentencing and revocation sentencing, we note that—although district courts do not

possess binding authority to order participation in prison programs, as discussed above—the sentencing judge may make

certain recommendations relevant to a defendant’s rehabilitative needs. As the Supreme Court explained in Tapia: 

A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits

of specific treatment or training programs. To the

contrary, a court properly may address a person who

is about to begin a prison term about these important

matters. And . . . a court may urge the [Bureau of

Prisons] to place an offender in a prison treatment

program. Section 3582(a) itself provides . . . that a

court may "make a recommendation concerning the

type of prison facility appropriate for the defendant";

and in this calculus, the presence of a rehabilitation

program may make one facility more appropriate

than another.

131 S. Ct. at 2392. Indeed, by trying to place the defendant

in an effective drug treatment program, the district court in

Tapia "did nothing wrong—and probably something very

right." Id.

Tapia thereby drew a line between the consideration of a

defendant’s rehabilitative needs when determining the fact or

length of imprisonment—which is improper—and the consideration of the same when recommending treatment options or

the location of confinement—which is altogether sound. Trial

judges should thus make plain that a defendant’s rehabilitative

needs relate at most to recommended programs or locations—

8 UNITED STATES v. BENNETT
not to the fact or length of imprisonment. By keeping these

distinct concepts distinct, courts will preclude the possibility

of confusion on appeal over whether a Tapia error has

occurred.

III.

A.

Given that Tapia governs this case, we must determine the

appropriate standard of review for assessing whether the district court committed reversible error. Our review of the

record makes plain that Bennett did not object at the revocation hearing on the grounds asserted here (or on any other

grounds, for that matter). This issue, therefore, was not properly preserved.

Bennett contends that he adequately objected by arguing

toward the start of the hearing—long before the district court

mentioned his rehabilitative needs—that the sentences on the

two revocations should run concurrently. But this argument

was far too general to alert the district court to the specific

reason that Bennett now asserts justifies concurrent sentences

—namely, that § 3582(a) forbids the use of rehabilitative

needs as a determinant for the imposition or length of imprisonment. The entire purpose of an objection is to alert the district court to the actual basis of asserted error. See Fed. R.

Crim. Pro. 51(b) ("A party may preserve a claim of error by

informing the court—when the court ruling or order is made

or sought—of the action the party wishes the court to take, or

the party’s objection to the court’s action and the grounds for

that objection."); United States v. Bostic, 371 F.3d 865, 871

(6th Cir. 2004) ("A party ‘must object with that reasonable

degree of specificity which would have adequately apprised

the trial court of the true basis for [the] objection.’" (quoting

United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.

1980)). The need for some specificity is not a meaningless ritual; rather, a clear objection can enable a trial court to correct

UNITED STATES v. BENNETT 9
possible error in short order and without the need for an

appeal. 

By any standard, Bennett’s argument for concurrent sentences did not even approach the point on which he now

grounds his claim. Indeed, when the district court made what

Bennett now contends were erroneous comments about his

rehabilitative needs, his counsel stood silent. We therefore

find that the defendant failed to preserve the objection

asserted here. 

B.

Where a defendant fails to preserve his claim, he bears the

burden of establishing (1) that the district court erred; (2) that

the error was "plain"; and (3) that the error "affect[ed his]

substantial rights," meaning that it "affected the outcome of

the district court proceedings." United States v. Olano, 507

U.S. 725, 732, 734 (1993). Even then, this court "retain[s] discretion to deny relief," and denial is particularly warranted

where it would not "result in a miscarriage of justice." United

States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010). 

Under Olano’s first prong, we must determine whether the

district court erred, and in order to make that determination in

the revocation context, this court asks whether the sentence is

"plainly unreasonable." United States v. Crudup, 461 F.3d

433, 437 (4th Cir. 2006). Under this analysis, "we first determine, using the instructions given in Gall [v. United States,

552 U.S. 38 (2007)], whether a sentence is ‘unreasonable.’"

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008).

Gall, in turn, requires a reviewing court first to "ensure that

the district court committed no significant procedural error."

552 U.S. at 51. If no such error is found, "the appellate court

should then consider the substantive reasonableness of the

sentence imposed." Id. If a sentence is held unreasonable

under Gall, this court proceeds to "decide whether [it] is

10 UNITED STATES v. BENNETT
plainly unreasonable." Finley, 531 F.3d at 294 (quoting

Crudup, 461 F.3d at 439).

In assessing procedural accuracy, Gall stated that a court’s

"fail[ure] to consider the § 3553(a) factors" constitutes "significant procedural error." 552 U.S. at 51. It is only logical

that a court’s consideration of an improper § 3553(a) factor is

likewise erroneous. Here, the district court contemplated a

§ 3553(a) factor that it was specifically prohibited from taking

into account by § 3582(a)—Bennett’s rehabilitative needs.

This constitutes a procedural error under Gall.

We shall assume arguendo that the error was plain. See

Henderson v. United States, 80 U.S.L.W. 3699 (U.S. June 25,

2012) (No. 11-9307) (granting certiorari to determine whether

an error is plain where the case law is unsettled at the time of

the district court proceeding but becomes clear during the

appeal). We find, however, that Bennett’s challenge ultimately fails because he has not carried his burden on Olano’s

third prong. For the reasons that follow, Bennett has failed to

show that the district court’s putative Tapia error affected his

substantial rights by influencing the outcome of the sentencing proceeding.

C.

Our review of the hearing transcript makes clear that it was

the brazen breach of trust inherent in Bennett’s unlawful

actions while on supervised release—and not the rehabilitation rationale proscribed by Tapia—that drove the district

court’s sentencing decision. 

The court commenced the sentencing portion of the proceeding by confirming that Bennett conceded the conduct

underlying both grounds for revocation. As for the first

ground, although Bennett pleaded guilty only to conspiracy to

commit common law robbery on the state conviction, the

court noted that he had "admitted the criminal conduct associUNITED STATES v. BENNETT 11
ated with" the original and significantly more serious charges

of "robbery with a dangerous weapon and possession of a

firearm by a felon." On the second ground, the court observed

that Bennett had "admitted to repeatedly using cocaine while

on supervised release"—in fact, less than two months after

leaving prison. 

The court then declared that "the focus of a revocation proceeding is the breach of trust associated with being on supervised release and then continuing to engage in criminal

behavior." The judge returned to this theme again and again,

as demonstrated by the following statements: 

• "[T]he court hoped that Mr. Bennett would do

better than he had done so far, but it is what it is";

• "The court does believe that there is a serious

breach of trust"; 

• "[I]t certainly didn’t seem Mr. Bennett kind of

learned too much while he was incarcerated or

really had any respect for the trust the court had

placed in him"; 

• "He’ll pay the price for that egregious breach of

trust today";

• "The sentence he’s going to get today derives

from the breach of trust"; 

• "[T]oday he’ll be held to account for his breach

of trust, the repeated breach of trust, the serious

violation in connection with" his first federal

conviction; 

• "He didn’t learn anything"; 

• "He breached the trust of this court"; 

12 UNITED STATES v. BENNETT
• "[H]is conduct reflects an egregious breach of

trust associated with the sentence . . . handed

down" on his second federal conviction. 

The judge also declared that Bennett "remains a threat."

The court did not reference Bennett’s rehabilitative needs

at all for the first two and one-half of the three pages of transcript encompassing the sentencing explanation. As its last

point before pronouncing the second sentence (after making

all of the statements listed above), the judge simply mentioned that Bennett "needs intensive substance abuse treatment" and that "the court will impose a sentence that provides

ample time for that." The judge then stated that the sentence

was meant both to "reflect the serious nature of the breach of

trust" and to "provide ample time for substance abuse treatment." These statements comprise the sum total of any Tapia

error. While the court also noted its recommendation that

Bennett "receive intensive substance abuse treatment" while

in prison, this recommendation was plainly proper under

§ 3582(a), as confirmed by Tapia and discussed above. 

Thus, when properly situated within the entire sentencing

proceeding, Bennett’s rehabilitative needs clearly constituted

only a minor fragment of the court’s reasoning. By contrast,

the judge made plain that the defiance demonstrated by Bennett’s multiple criminal acts during his short period of relative

freedom was simply staggering. The concern with this breach

of trust, which both led off the discussion and bore all of its

emphasis, far outweighed any other concerns and provided

independent justification for the sentence. 

This determination is underscored by comparing the present case with the sentencing proceeding at issue in Tapia.

There, the district judge emphasized that "the sentence has to

be sufficient to provide needed correctional treatment, and

here I think the needed correctional treatment is the 500 Hour

Drug Program." Tapia, 131 S. Ct. at 2385, 2392. The "number

UNITED STATES v. BENNETT 13
one" consideration "is the need to provide treatment," the

court reiterated—"[i]n other words, so [Tapia] is in long

enough to get the 500 Hour Drug Program." Id. at 2385,

2392-93 (emphasis added). Even given these indications that

the defendant’s rehabilitative needs drove the length of the

sentence, the Supreme Court remanded for a determination on

this issue, id. at 2393 (remanding for the Court of Appeals to

consider under Olano "the effect of Tapia’s failure to object

to the sentence when imposed"); and the two concurring Justices outlined a litany of factual considerations supporting the

district court’s other, deterrence-based explanation for the

sentence, id. at 2393-94 (Sotomayor, J., concurring). The fact

that it was apparently a close question in Tapia whether the

rehabilitation rationale drove the sentencing decision—

despite the prominence of that rationale—simply confirms

that the answer in the present case is straightforward: it did

not. 

This analysis demonstrates that any Tapia error did not

influence the outcome of the revocation hearing. Rather, the

court imposed the sentence it chose because of Bennett’s

"egregious breach of trust," a perfectly appropriate basis—

and, in fact, the principal basis on which the Guidelines

encourage courts to ground revocation sentences. See U.S.

Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.

(2011) ("[A]t revocation the court should sanction primarily

the defendant’s breach of trust . . . ."). Bennett’s challenge

fails under Olano’s third prong, and this court therefore properly declines to order a purposeless remand where the district

court does nothing more than reiterate what it has made clear

all along.

IV.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

14 UNITED STATES v. BENNETT