698 F.3d 194 (4th Cir. 2012), 11-4401, United States v. Bennett

Docket Nº:11-4401.
Citation:698 F.3d 194
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Bernard BENNETT, Jr., Defendant-Appellant.
Attorney: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. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender,...
Judge Panel: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.
Case Date:October 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 194

698 F.3d 194 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Bernard BENNETT, Jr., Defendant-Appellant.

No. 11-4401.

United States Court of Appeals, Fourth Circuit.

October 25, 2012

Argued: Sept. 19, 2012.

Page 195

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.

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.

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. __ U.S. __, 131 S.Ct. 2382, 180 L.Ed.2d 357 (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.

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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 January 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 twenty-four 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 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

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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 constitutes reversible error under Tapia v. United States, __ U.S. __, 131 S.Ct. 2382, 180 L.Ed.2d 357 (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 rehabilitation." 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).[*]

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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.

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'...

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