NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-3090

_________

UNITED STATES OF AMERICA

v.

LINDA TODD,

 Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-14-cr-00320-001)

District Judge: Honorable Gene E. K. Pratter

______________

Argued June 5, 2018

______________

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion Filed: December 14, 2018)

Jacob Schuman, Esq. [Argued]

Christy Martin, Esq.

Federal Community Defender Office for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant 

Emily McKillip, Esq. [Argued]

K. T. Newton, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250
2

Philadelphia, PA 19106

Counsel for Appellee

________________

OPINION

________________

VANASKIE, Circuit Judge.

In Tapia v. United States, 564 U.S. 319, 335 (2011), the Supreme Court made

clear that “a court may not impose or lengthen a prison sentence to enable an offender to 

complete a treatment program or otherwise to promote rehabilitation.” Recently, in 

United States v. Schonewolf, 2018 WL 4782146 (3d Cir. Oct. 4, 2018), we concluded that 

this prohibition applies to revocations of supervised release, overruling our previous 

decision in United States v. Doe, 617 F.3d 766 (3d Cir. 2010). We also took the 

opportunity in Schonewolf to join the First, Second, Fourth, Fifth, Sixth, and Eighth 

Circuits in holding that, to violate Tapia, rehabilitation must have been a primary or 

dominant factor in a district court’s decision to impose a term of incarceration. 

Schonewolf, 2018 WL 4782146, at *7–8.

The District Court revoked Appellant Linda Todd’s supervised release before we 

decided Schonewolf. We write today to illustrate the contrast between the facts of our 

case and the facts presented in Schonewolf. Whereas we found no Tapia error in 

Schonewolf, we think it clear that, here, Tapia was violated. But because Appellant did 

not object in the District Court to revocation of supervised release and the resulting 

sentence, we apply the plain error standard of review, see United States v. Berry, 553 
3

F.3d 273, 279 (3d Cir. 2009), and conclude that Todd has not demonstrated the requisite 

prejudice affecting her substantial rights to justify setting aside the District Court’s Order. 

Accordingly, we will affirm the Order of the District Court revoking Todd’s supervised 

release.

I.

We begin by recounting Todd’s history of substance abuse and the judicial 

proceedings in this matter, which are deeply intertwined. 

The parties agree Todd has struggled with drug addiction for many years. Prior to 

the proceedings in this case, Todd was hospitalized several times for substance-abuse 

disorders and was convicted of several drug-related crimes. 

In 2014, Todd pled guilty to participation in a bank-fraud and identity-theft 

scheme. The District Court sentenced her to thirteen months of imprisonment, followed 

by sixty months of supervised release. As conditions of her supervised release, Todd was 

required to abstain from illegal substances, report to her probation officer, and, in 

particular, report to her probation officer for drug testing. 

Following her release from prison in March 2015, Todd began her period of 

supervised release. For the first year and a half of her supervised release term, she 

complied with her conditions. In the fall of 2016, however, Todd relapsed: she tested 

positive for cocaine, morphine, oxycodone, and oxymorphone in September, October, 

and November. She also missed several drug tests. As a result, her probation officer 

directed her to enroll in an intensive outpatient program to treat her addiction and mental 

health issues. In addition, Todd was given permission to enroll in a Suboxone 
4

maintenance program. Although she initially reported to these programs as directed, she 

was eventually discharged after missing several appointments.

Todd continued to struggle with substance dependence through the winter. In 

January 2017, she enrolled in a five-day detoxification program, but dropped out one day 

before she was scheduled to finish. She then joined another intensive outpatient and 

Suboxone maintenance program, but stopped attending a few weeks later. Around this 

time, Todd also stopped communicating with her probation officer. 

In February 2017, Todd’s probation officer filed a petition asking the court to 

issue a summons directing Todd to appear and modify the conditions of her supervised 

release. In particular, the probation officer sought to add as a condition of supervised 

release thirty days of inpatient treatment. A month later, Todd’s probation officer filed a 

Violation of Supervised Release petition, alleging that Todd had violated the conditions 

of her release by using drugs, failing to complete treatment, and failing to report to her 

probation officer as directed. This petition superseded the one from February. Pursuant 

to the petition, Todd was arrested and brought before the District Court for a hearing.

At the hearing, Todd’s probation officer proposed that the District Court modify 

the conditions of Todd’s release to require participation in a drug treatment program. 

Both Todd and the government agreed that treatment was necessary. Accordingly, the 

District Court modified her conditions to require her to attend sixty days of inpatient 

treatment, followed by ninety days of outpatient treatment. The District Court 

emphasized this was “another chance,” with “a little bit closer supervision.” (App. 104.)
5

Todd completed the inpatient program in April 2017. In June 2017, she began the 

outpatient program at a residential reentry center. In August 2017, she relapsed again. 

She tested positive for cocaine and opioids, and confided to her probation officer that she 

had been using drugs. 

On August 17, 2017, Todd overdosed on heroin. Staff at the reentry center

administered Narcan, an opioid blocker, and transported her to the hospital, where she 

was revived. When the staff searched her personal belongings, they found ten small bags 

of heroin along with drug paraphernalia. The next day, Todd was discharged from 

outpatient treatment.

After the overdose, Todd’s probation officer sought revocation of her supervised 

release. The officer filed another Violation of Supervised Release petition, alleging that 

Todd had again violated the conditions of her release by using drugs, failing to complete 

outpatient treatment, and missing meetings with the probation officer. Todd was arrested 

and appeared for a second hearing. 

At this hearing, Todd’s probation officer recommended that the District Court 

revoke Todd’s supervised release and sentence her to twelve months of incarceration,

followed by twenty-four months of supervised release. The government agreed. Todd

opposed and requested that the District Court place her in a drug treatment program 

instead of prison. Defense counsel noted Todd had done well in the inpatient program, 

held a job, and had support from her family. Defense counsel further explained that, 

although Todd had relapsed during outpatient treatment, drug use was endemic at the 

reentry center, which made it a difficult environment in which to maintain sobriety. 
6

Defense counsel also stressed that while battling opioid dependence was “a long road,” 

the overdose had been “a wake-up call” for Todd. (App. 118–19.)

The Court then engaged Todd in a colloquy. Todd expanded on her history of 

drug use, her recent overdose, her varying degrees of success in inpatient and outpatient 

programs, and her aspirations of becoming a drug and alcohol addiction counselor. She 

also emphasized that she had made progress during inpatient treatment, but had 

succumbed to the rampant drug use in the outpatient facility. In response, the District 

Court questioned whether Todd had “a grip on the reality of the risk of overdosing,” 

stating, 

[I]f . . . you think that you’re doing well and that everything 

would have been fine as long as you hadn’t gone to [the reentry 

center], I’m not sure that you’re really thinking about the big 

picture and what you have to face in life because in the final 

analysis, none of these programs are successful unless they 

click with you and you’re able to monitor yourself. 

(App. 122.) The District Court also expressed concern that Todd was demonstrating 

neither “personal accountability,” nor “responsibility . . . .” (App. 123.) As an example, 

the Court noted that Todd had repeatedly sought out drugs in the reentry center on her 

own accord. 

Ultimately, the District Court revoked Todd’s supervised release and sentenced 

her to twelve months and one day’s imprisonment,

1 followed by twenty-four months’ 

supervised release. The District Court explained:

 1 The District Court extended the prison sentence to twelve months and one day at 

defense counsel’s request so that Todd could earn good-time credit. (App. 134–35.)
7

Well, Ms. Todd, certainly the plan that we had hoped would 

work does not work and it hasn’t yet clicked with you and what 

you really must have is ongoing 24/7 supervision.

So in connection with revoking your supervised release, I am 

going to send you back to prison for a period of [twelve] 

months during which it would be my expectation that you will 

be participating in both mental health treatment programs and 

drug addiction treatment programs. Upon your completion of 

the [twelve] months of incarceration, you will return to 

supervised release for [twenty-four] months.

(App. 133–34.) In imposing this sentence, the District Court did not calculate her range

under the United States Sentencing Guidelines (“U.S.S.G.”);

2 nor did it discuss the 

sentencing factors set out in 18 U.S.C. § 3553(a). Other than finding that Todd had 

committed the violations and noting the violations were “C violations,” (App. 132), the 

District Court made no reference to the Guidelines. Todd timely appealed her sentence.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

Todd raises two challenges to the District Court’s order revoking her supervised 

release. First, she contends the revocation violated Tapia. Second, she argues the 

District Court’s failure to calculate and consider her Guidelines’ range amounted to 

reversible error. Because neither challenge was presented to the District Court, we 

review for plain error. See Berry, 553 F.3d at 279. Plain error is error that is obvious or 

clear and that affects substantial rights. See United States v. Olano, 507 U.S. 725, 732–

 2 The parties agree the applicable range was eight to fourteen months’ 

imprisonment. 
8

37 (1993). “Generally, an error affects substantial rights when it is prejudicial, i.e., it 

‘affected the outcome of the district court proceedings.’” United States v. Dragon, 471 

F.3d 501, 505 (3d Cir. 2006) (quoting Olano, 507 U.S. at 734). Even if plain error 

occurred, we will exercise our discretion to correct the error only if it “seriously affects 

the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Olano, 

507 U.S. at 736) (alteration omitted). 

III. 

We begin by assessing whether the District Court erred under Tapia. Before 

turning to the facts of Todd’s case, however, we summarize the relevant provision of the 

Sentencing Reform Act and the decisions in Tapia and Schonewolf.

A.

In 1984, Congress passed the Sentencing Reform Act, which “channeled judges’ 

discretion by establishing a framework to govern their consideration and imposition of 

sentences.” Tapia, 564 U.S. at 325. In relevant part, the Act provides: 

The court, in determining whether to impose a term of 

imprisonment, and, if a term of imprisonment is to be imposed, 

in determining the length of the term, shall consider the factors 

set forth in [18 U.S.C.] section 3553(a) to the extent that they 

are applicable, recognizing that imprisonment is not an 

appropriate means of promoting correction and rehabilitation.

18 U.S.C. § 3582(a) (emphasis added). This provision, as the Supreme Court explained, 

reflects lawmakers doubts “that prison programs could ‘rehabilitate individuals on a 

routine basis’—or that parole officers could ‘determine accurately whether or when a 
9

particular prisoner ha[d] been rehabilitated.’” Tapia, 564 U.S. at 324–35 (quoting S. 

Rep. No., 98–225, at 40 (1983)). 

In Tapia, the Supreme Court considered whether a district court’s reference to the 

Bureau of Prison’s Residential Drug Abuse Program during its sentencing of Alejandra 

Tapia ran afoul of § 3582(a). 564 U.S. at 335. The Court affirmed that § 3582(a)

prevented a court from “impos[ing] or lengthen[ing] a prison sentence to enable an 

offender to complete a treatment program or otherwise to promote rehabilitation.” Id. 

The Court’s interpretation rested in part on the fact that, as Congress had recognized in 

passing the SRA, “imprisonment is not an appropriate means of pursuing 

[rehabilitation].” Id. at 328. 

In Schonewolf, we considered whether Tapia’s interpretation of § 3582 extends to 

revocations of supervised release. Joining all other Courts of Appeals that have 

considered the issue, we concluded that it did. See 2018 WL 4782146, at *5–6 (citing 

United States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011) (Souter, J.); United States v. 

Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013); United States v. Bennett, 698 F.3d 194, 198 

(4th Cir. 2012); United States v. Garza, 706 F.3d 655, 657 (5th Cir. 2013); United States 

v. Deen, 706 F.3d 760, 766 (6th Cir. 2013); United States v. Taylor, 679 F.3d 1005, 1006 

(8th Cir. 2012); United States v. Grant, 664 F.3d 276, 280 (9th Cir. 2011); United States 

v. Mendiola, 696 F.3d 1033, 1043 (10th Cir. 2012); United States v. Vandergrift, 754 

F.3d 1303, 1309 (11th Cir. 2014)).

Next, we determined the applicable standard for discerning Tapia error in postrevocation sentences. We recognized a split among the Circuits. “On one hand,” we 
10

wrote, “the Seventh, Ninth, Tenth, and Eleventh Circuits impose a stringent standard . . . .

In the view of these circuits, Tapia is violated wherever rehabilitation is given any weight 

in the decision to impose or lengthen a prison sentence.” Id. at *6 (citing United States v. 

Spann, 757 F.3d 674, 675 (7th Cir. 2014); United States v. Joseph, 716 F.3d 1273, 1281 

n.10 (9th Cir. 2013) (dictum)); United States v. Thornton, 846 F.3d 1110, 1116 (10th Cir. 

2017); Vandergrift, 754 F.3d at 1310 (11th Cir. 2014)). “On the other hand,” we 

continued, “the First, Second, Fourth, Fifth, Sixth, and Eighth Circuits have articulated a 

more relaxed standard . . . . Under this standard, rehabilitation may be a factor granted 

some weight in selecting a prison sentence, so long as it is not the primary or dominant 

consideration.” Id. at *7 (citing United States v. Del Valle-Rodrigues, 761 F.3d 171, 174 

(1st Cir. 2014); Lifshitz, 714 F.3d at 150 [2d Cir.]; Bennett, 698 F.3d at 201 [4th Cir.]); 

Garza, 706 F.3d at 660 [5th Cir.]; Deen, 706 F.3d at 768 [6th Cir.]; United States v. 

Replogle, 678 F.3d 940, 943 (8th Cir. 2012)). We joined the latter cohort, reasoning that 

the less stringent standard “tracks Tapia more closely” and comports with our approach 

in the post-conviction setting. Id. at *7–8 (citing United States v. Zabielski, 711 F.3d 

381, 392 (3d Cir. 2013)).

We concluded by turning to the relevant circumstances of Schonewolf’s personal 

and criminal background. Her experiences with addiction began early in life. Both of 

her parents were addicts and she herself began using drugs and alcohol in her teenage 

years. At some point, she was prescribed Percocet for back pain stemming from a car 

accident. Over time she became dependent on the pills. After she was no longer able to 

secure Percocet, she switched to heroin to salve her addiction. In 2010, Schonewolf pled
11

guilty to one count of possessing methamphetamine with intent to distribute. The district 

court varied downward, sentencing her to time served and sixty months of supervised 

release. 

Schonewolf served the first part of her supervised release without incident. Then 

she relapsed. She proceeded to violate her supervised release multiple times—she was 

caught attempting to purchase drugs; she overdosed; and, ultimately, she pled guilty to 

selling heroin. As a result, her probation officer sought revocation. The district court 

convened a hearing. After listening to the parties, it varied upward and sentenced 

Schonewolf to forty months’ imprisonment. It explained that its downward variance 

during post-conviction sentencing justified an upward variance pursuant to U.S.S.G. § 

7B1.4.3

 Additionally, the court observed that Schonewolf posed a danger to herself and 

society. It also mentioned that limited contact with the outside world, presumably 

through incarceration, was “the last step we have in order to give you a fighting chance to 

recover from whatever addictions you have . . . .” Id. at *3. 

On appeal, Schonewolf claimed that her post-revocation sentence violated Tapia. 

She argued that many of the district court’s statements were “addiction-centric and 

framed the choice [of sentence] in terms of treating her addiction.” Id. at *8 (citations 

omitted). We disagreed. We held the sentence “was not based on rehabilitation but, 

instead, on past lenity.” Id. We were persuaded by, inter alia, the district court’s express 

reliance on U.S.S.G. § 7B1.4.

 3 Application Note 4 to U.S.S.G. § 7B1.4 provides: “Where the original sentence 

was the result of a downward departure . . ., an upward departure may be warranted.” 
12

B. 

We write today because we believe Todd’s sentence is distinguishable from 

Schonewolf’s. In Schonewolf, the district court based its sentence on the permissible 

consideration of past lenity.4

 By contrast, in determining Todd’s sentence, the District 

Court focused on the rehabilitative benefit prison could provide.

Having reviewed the record before us, we conclude that rehabilitation was the 

District Court’s primary basis for imposing a term of incarceration. We are particularly 

persuaded by its reference to the “ongoing 24/7 supervision” available in prison. (App. at 

133.) Before making this statement, the Court discussed its concern with drug treatment 

programs that provided less than continuous supervision. It recognized that these 

programs had not succeeded in helping Todd overcome her addiction. By contrast, 

the“24/7 supervision” available in prison presented an alternative to these drug treatment 

programs. We also note that, throughout this matter, the proceedings have centered on 

Todd’s substance abuse. The transcripts almost exclusively discuss Todd’s history of 

substance abuse, treatment needs, and ongoing attempts to maintain sobriety. This 

bolsters our conclusion that the District Court was primarily motivated by its interest in 

promoting Todd’s rehabilitation. 

The government argues that while the District Court “may have shown a hope that 

Todd would avail herself of [rehabilitation] programs while incarcerated,” (Appellee’s 

 4 We note that the district court in Schonewolf also discussed public safety as 

justification for its sentence, but we did not rely on this fact in our decision on appeal. 

See id. at *3 (noting that district court judge considered Schonewolf to be “a significant 

danger to society”).
13

Br. at 19), rehabilitation was not its primary motivation in revoking Todd’s supervised 

release. In support of its position, the government points to several statements that 

ostensibly prove the District Court relied on non-rehabilitative factors. First, the 

government submits that the District Court’s references to “personal accountability” and 

“responsibility” were unrelated to Todd’s treatment needs; and second, the government 

contends the District Court’s reliance on the need for “ongoing 24/7 supervision” 

reflected the seriousness and number of Todd’s violations. (Appellee’s Br. at 19–20.) 

We are not convinced. We decline to review these statements in isolation, and 

when read in context, it is clear that they were all related to Todd’s addiction. First, the 

District Court’s references to “personal accountability” and “responsibility” were part of 

its inquiry into Todd’s experiences at various treatment programs. This colloquy mainly 

focused on Todd’s success with inpatient programs compared to her inability to maintain 

her sobriety while participating in outpatient programs. And when Todd explained to the 

District Court that she thought her overdose was traceable to the lax conditions at the 

reentry center, the Court rejected the explanation, suggesting the more pressing issue was 

Todd’s inability to hold herself personally accountable for the lapses in her own sobriety. 

The government’s argument regarding “ongoing 24/7 supervision” fares no better. 

Admittedly, 24/7 incapacitation accompanying incarceration can be used to advance 

deterrence and public safety, which are permissible considerations when deciding 

whether to impose a term of imprisonment. See United States v. Del Valle-Rodriguez, 

761 F.3d 171, 175 (1st Cir. 2014). However, nothing here suggests the District Court 

was concerned with anything other than Todd’s rehabilitation. For instance, this 
14

statement regarding 24/7 supervision followed a lengthy discussion of Todd’s inability to 

complete outpatient treatment in which the amount of supervision was a pivotal issue. 

We also note that this statement was not the first time the District Court addressed Todd’s 

need for supervision. It had done so before at Todd’s first hearing where it modified the 

terms of her supervised release. After expressing concern about the “freedom” permitted 

“at the halfway house,” the Court ordered sixty days of inpatient treatment followed by 

ninety days of outpatient treatment. The Court emphasized that this would provide “a 

little bit closer supervision.” (App. 104.) In other words, more supervision meant a 

better shot at sobriety. 

We have carefully considered and compared these proceedings to those at issue in 

Schonewolf. Our conclusion in Schonewolf rested on our ability to discern permissible 

considerations motivating a district court’s imposition of a term of incarceration, i.e., 

express reliance on U.S.S.G. § 7B1.4. Because we cannot identify any consideration 

other than rehabilitation on this record, we conclude that Todd’s post-revocation sentence 

violated Tapia.

This is not to say that District Court’s decision to address Todd’s concerns 

regarding her rehabilitative needs while incarcerated was improper. In fact, we commend 

the Court for directly confronting the reality of Todd’s addiction. We write only to 

underscore that a court may not rely primarily on rehabilitation in imposing a term of 

incarceration, and that we are unable to discern a basis other than rehabilitation from the 

record before us. 
15

We are aware that the recent decision in Schonewolf marks our first clear 

statement on the application of Tapia to revocations of supervised release and the extent 

to which a court may consider rehabilitation when imposing a term of incarceration. 

Nonetheless, we are constrained to conclude that the error here was obvious. See United 

States v. Dahl, 833 F.3d 345, 358 (3d Cir. 2016) (“[W]e apply . . . ‘plain error’ as of the 

time of appellate review”) (quoting Henderson v. United States, 568 U.S. 266, 274

(2013)). Still, we are convinced that Todd has failed to demonstrate a reasonable 

probability that she would have received a more favorable sentence had the District Court 

rested its decision on permissible grounds. We recognize that a legitimate basis for 

imposing a term of incarceration existed in Todd’s case, as it did in Schonewolf’s. In 

particular, we note that Todd admitted violating the terms of her supervised release and 

was sentenced within the applicable Guidelines range. Relief for an error that is obvious 

or clear is warranted only where the error is prejudicial, i.e., where it “affected the 

outcome of the district court proceedings.” Dragon, 471 F.3d at 505 (quoting Olano, 507 

U.S. at 734). Here, Todd has not shown that the District Court would not have otherwise 

revoked supervised release and imposed a prison term, especially in view of the repeated 

violations of supervised release detailed above. Nor can we say that the Tapia error here 

adversely affected the fairness, integrity, or public reputation of judicial proceedings. See 

Olano, 507 U.S. at 732. On the contrary, the District Court displayed tremendous 

patience and a remarkable concern for fairness to Todd. Applying plain error review, as 

we are required to do under the circumstances, we will not disturb the District Court’s

revocation order and sentence on Tapia grounds. See id. at 734–35. 
16

IV.

We conclude by addressing Todd’s alternative argument—i.e., that the District 

Court failed to properly calculate or consider her Guidelines’ range. We agree that this 

was a procedural error. See United States v. Gall, 552 U.S. 38, 51 (2007) (holding that an 

appellate court “must first ensure that the district court committed no significant 

procedural error, such as failing to calculate (or improperly calculating) the Guidelines 

range”). We are not, however, convinced Todd has demonstrated prejudice. Todd 

received a term of imprisonment of twelve months and one day for violating the terms of 

her supervised release. The Guidelines’ range she faced was eight to fourteen months. 

Nothing in this case suggests that Todd would have received a more favorable sentence 

had the District Court calculated and considered this range on the record. Because Todd 

has not demonstrated prejudice, we decline to find plain error. See Olano, 507 U.S. at 

734. 

V.

For the foregoing reasons, we will affirm the District Court’s Order revoking

Todd’s supervised release entered on September 14, 2017.