U.S. v. Tsosie, 03-2209.

• Decision Date: 02 August 2004
• Docket Number: No. 03-2209.,03-2209.
• Citation: 376 F.3d 1210
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon TSOSIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

376 F.3d 1210

UNITED STATES of America, Plaintiff-Appellee, v. Vernon TSOSIE, Defendant-Appellant.

No. 03-2209.

United States Court of Appeals, Tenth Circuit.

August 2, 2004.

Appeal from the United States District Court for the District of New Mexico, William P. Johnson, J.

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Norman Cairns, Assistant United States Attorney, (David C. Iglesias, United States Attorney with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Stephen P. McCue, Federal Public Defender (Roger A. Finzel, Assistant Federal Public Defender with him on the briefs), Albuquerque, NM, for Defendant-Appellant.

Before SEYMOUR, LUCERO and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Vernon Tsosie challenges the district court's decision to revoke his term of supervised release and require him instead to serve eighteen months in prison for the remainder of an enlarged supervised release term. He claims the district court erroneously based the length of his prison sentence solely on his need for rehabilitation and that the sentence was neither reasoned nor reasonable. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Mr. Tsosie had been drinking on the morning of December 16, 1998, when he stabbed two men at a party on the Fort Hall Indian Reservation in Idaho. He pled guilty to two Class C felony counts of assault resulting in serious bodily injury and was sentenced to forty-two months imprisonment followed by three years of supervised release.¹ Among the conditions of Mr. Tsosie's supervised release was that he refrain from using illegal drugs, he refrain from excessive use of alcohol, and that he not commit any federal, state or local crime. Mr. Tsosie's supervised release began in Idaho on May 1, 2002, and his case was transferred to the district court in New Mexico on October 23, 2002. He violated the conditions of his release on April 19, 2003, when he was arrested for fighting with his wife after drinking alcohol, and again on April 27, 2003, when he was arrested for aggravated driving under the influence of alcohol. The probation office filed a petition to revoke Mr. Tsosie's supervised release. Following his arrest on the revocation petition, Mr. Tsosie was released to a halfway house but absconded from the facility shortly thereafter. Eventually, he turned himself in.

At the initial revocation hearing, in consideration of Mr. Tsosie's admitted serious substance abuse problem, the district court stated it was contemplating sentencing him above the three- to nine-month range indicated by the United States Sentencing Guidelines to allow him to participate in the Bureau of Prisons' 500-hour substance abuse treatment program. See U.S. Sentencing Guidelines Manual §§ 7B1.1(a)(3) and 7B1.4(a). Mr. Tsosie objected and requested a continuance so he could respond to the district court's concerns in writing. In his subsequent Sentencing Memorandum, Mr. Tsosie maintained he would not participate in the 500-hour voluntary program but would participate in a thirty-day in-patient treatment program. When the revocation hearing reconvened, Mr. Tsosie admitted to the violations of his supervised release but reiterated he would not participate in the voluntary treatment program offered by the Bureau of Prisons.

The district court found Mr. Tsosie had a severe alcohol problem that endangered him and the public and further found a thirty-day treatment program insufficient to deal with his problem. The court sentenced him to eighteen months in prison with a strong recommendation he be enrolled in the Bureau of Prisons' treatment program. Mr. Tsosie again objected, pointing to the fact the program was strictly voluntary and he would not participate. The court noted his objections for the record but affirmed the sentence "notwithstanding the defendant's stated intentions." Rec., vol. IV, Tr. of Proceedings 8/25/03, at 15.

II

Mr. Tsosie raises two issues on appeal. He maintains the district court erred when it lengthened his sentence for the sole purpose of rehabilitation and asserts his sentence is neither reasoned nor reasonable. We will address the rehabilitation issue before turning to the validity of the sentence.

A. Rehabilitation as factor relevant to requiring defendant to serve time in prison upon revocation of supervised release

Mr. Tsosie failed to raise the rehabilitation issue below. Generally, such failure results in a review for plain error only. See United States v. Tisdale, 248 F.3d 964, 975 (10th Cir.2001) (failure to lodge specific objection to district court's legal interpretation or application of sentencing guidelines precludes appellate review, except for plain error), cert. denied, 534 U.S. 1153, 122 S.Ct. 1120, 151 L.Ed.2d 1013 (2002). However, we recently recognized an exception to this general rule.

[W]hen the district court sua sponte raises and explicitly resolves an issue of law on the merits, the appellant may challenge that ruling on appeal on the ground addressed by the district court even if he failed to raise the issue in district court. In such a case, review on appeal is not for "plain error," but is subject to the same standard of appellate review that would be applicable if the appellant had properly raised the issue.

United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir.2003).

Mr. Tsosie argues the district court questioned whether it could enlarge his sentence solely for the purpose of rehabilitation sua sponte and decided the question explicitly on the merits. The district court premised its sentencing decision with the statement:

In the United States versus Brown, 224 F.3d 1237, an Eleventh Circuit opinion at Pages 1239 to 1240, the court affirmed the maximum sentence of two years for rehabilitation purposes where the guideline maximum was 11 months. The court held that, "A court may consider a defendant's rehabilitative needs when imposing a specific incarceration term following revocation of supervised release."

Rec., vol. IV, Tr. of Proceedings 08/25/03, at 10. We agree the district court directly decided this issue of law. Thus, we review de novo the district court's decision to impose an enlarged sentence on Mr. Tsosie upon revocation of his supervised release for the sole purpose of his rehabilitation.

Mr. Tsosie contends 28 U.S.C. § 994(k) and 18 U.S.C. § 3582(a) prohibit the promotion of rehabilitation as a significant factor when a court determines the length of a prison sentence after revocation of supervised release. 28 U.S.C. § 994(k) instructs the Sentencing Commission to "insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment." 28 U.S.C. § 994(k). Likewise, 18 U.S.C. § 3582, in addressing "factors to be considered in imposing a term of imprisonment," states in relevant part:

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 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). Although our court has not yet had reason to comment on the specific import of this language, the other circuits have recognized its clear mandate — when imposing an original sentence to a term of imprisonment, it is inappropriate for the district court to consider rehabilitation of the defendant as the sole purpose for imprisonment. See United States v. Brown, 224 F.3d 1237, 1240 (11th Cir.2000); United States v. Jackson, 70 F.3d 874, 879 (6th Cir.1995).

Other circuits have also uniformly ruled, however, that district courts may give weight to a defendant's rehabilitative needs when revoking a term of supervised release and then subsequently requiring a defendant to serve part or all of his new and potentially extended term of supervised release in prison. See Brown, 224 F.3d at 1242 (affirming imprisonment upon revocation of supervised release to allow defendant to complete a comprehensive substance abuse treatment); United States v. Thornell, 128 F.3d 687, 688 (8th Cir.1997) (affirming district court's consideration of defendant's rehabilitative needs when imposing imprisonment in excess of sentencing guidelines policy statement range after revocation of supervised release); Jackson, 70 F.3d at 879-80 (affirming district court's consideration of defendant's rehabilitative needs after mandatory revocation of supervised release); United States v. Giddings, 37 F.3d 1091, 1094-95, 1097 (5th Cir.1994) (same); United States v. Anderson, 15 F.3d 278, 282-83 (2d Cir.1994) (affirming district court's consideration of defendant's correctional needs when imposing sentence of imprisonment after revoking supervised release).

The distinction made between the factors appropriate for determining an initial term of imprisonment and those appropriate for sentencing upon revocation of supervised release is based on the statutes specifically relevant to supervised release. In the original sentencing process, the district court contemplates both the term of imprisonment and the following period, if any, of supervised release. But the initial term of imprisonment is always limited by 18 U.S.C. § 3582(a) and 28 U.S.C. § 994(k). Conversely, when determining the imposition and length of supervised release, a court is required pursuant to 18 U.S.C. § 3583(c), to look to the factors in various subsections of 18 U.S.C. § 3553(a), including "the need for the sentence [of supervised release] imposed ... to provide the defendant with needed ... medical care, or other correctional treatment in the most effective manner...." 18 U.S.C. § 3553(a)(2)(D).

When a defendant violates the...