United States v. Garza

• Decision Date: 01 February 2013
• Docket Number: No. 11–10543.,11–10543.
• Citation: 706 F.3d 655
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus Javier GARZA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

706 F.3d 655

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus Javier GARZA, Defendant–Appellant.

No. 11–10543.

United States Court of Appeals,Fifth Circuit.

Feb. 1, 2013.

Brian W. McKay, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

Jerry Van Beard, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, William Reynolds Biggs, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before DeMOSS, OWEN, and HAYNES, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Jesus Javier Garza violated the conditions of his supervised release and was sentenced to twenty-four months of imprisonment to be followed by twenty-four months of supervised release. On appeal, Garza argues that the district court improperly considered his rehabilitative needs in determining the length of his prison sentence in violation of Tapia v. United States,¹ which held 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.” ² We vacate and remand for resentencing.

I

Garza pleaded guilty to possession with intent to distribute methamphetamine and was sentenced to fifty-five months in prison to be followed by a five-year term of supervised release. Garza began serving that term of supervised release on August 1, 2008. When Garza allegedly violated a number of the conditions of his supervised release, the Government filed a motion to revoke supervised release pursuant to 18 U.S.C. § 3583(e).

At his revocation hearing, Garza pleaded true to all of the factual allegations in the Government's motion to revoke, with one exception, and the court revoked Garza's supervised release. Although the advisory Sentencing Guidelines range was three to nine months of imprisonment, the district court imposed a sentence of twenty-four months in prison, to be followed by a twenty-four month term of supervised release. In the course of imposing this sentence, the district court extensively discussed the rehabilitation opportunities that prison terms of varying lengths would afford Garza. This appeal followed.

II

A threshold question in this appeal is whether 18 U.S.C. § 3582(a) applies to revocation sentences. In Tapia, the Supreme Court held that, under § 3582(a), a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” ³ However, Tapia was an appeal of a sentence imposed for the initial conviction, and although our court has assumed that its holding extends to the revocation context,⁴ we have never so held. The Government concedes that Tapia applies to revocation sentences, and we agree. In so holding, we join the uniform post- Tapia case law in our sister circuits.⁵

The factors set forth in 18 U.S.C. § 3553(a) that a district court should consider in imposing a sentence apply when supervised release is revoked.⁶ These factors include “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.” ⁷ However, with regard to determining if imprisonment should be imposed as part of a sentence and if so, the length of the term of imprisonment, § 3582(a) directs a district court to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ⁸

The wording and context of § 3582(a) persuades us that it applies in the revocation context. First, in the same sentence in § 3582(a) that admonishes courts that they cannot use imprisonment as a means of correction or rehabilitation, Congress directs courts to consider the factors set forth in § 3553(a) “to the extent they are applicable.” ⁹ As already noted, a sentence imposed for a violation of supervised release comes within § 3553(a), and a court is directed by § 3553(a)(3) and (a)(4)(B) to consider the kinds of sentences available and the applicable sentencing range established by the Guidelines or the Commission's policy statements.¹⁰ This would include a term of imprisonment, if available. It therefore stands to reason that the subsequent part of the phrasing in § 3582(a) that prohibits consideration of rehabilitative needs applies to a prison term imposed upon revocation of supervised release.

Second, § 3582(a) is quite clear: “ imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹¹ The phrasing of this statute does not suggest that it applies only when a sentence is imposed for the underlying conviction but that in the revocation context, promoting rehabilitation can be considered in deciding whether to impose a prison sentence and if so, the length of confinement.¹² While it is true that the statute authorizing revocation of supervised release, 18 U.S.C. § 3583(e), speaks in terms of “requir[ing] the defendant to serve in prison ” rather than “imposing ... imprisonment ” as in § 3582(a),¹³ we agree with the Court of Appeals for the Fourth Circuit that this is a “distinction in search of significance.” ¹⁴ As the Fourth Circuit noted, this is particularlytrue in light of the Supreme Court's adoption of a broad definition of “imprisonment” as “[t]he state of being confined or a period of confinement.” ¹⁵ “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.” ¹⁶

Third, Tapia's reasoning was not limited to the text of § 3582(a). “Equally illuminating,” the Court explained, “is a statutory silence—the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs.” ¹⁷ Unlike the statutes governing probation or supervised release, in which Congress gives courts authority to order participation in rehabilitation programs, the provisions governing the imposition of prison terms grant courts no such authority. ¹⁸ “That incapacity speaks volumes. It indicates that Congress did not intend that courts consider offenders' rehabilitative needs when imposing prison sentences.” ¹⁹

As Justice Souter, writing for the Court of Appeals for the First Circuit, observed, “There is nothing tentative about this reasoning: if Congress wanted judges to consider rehabilitation, it gave judicial authority to control [whether a defendant participated in such a program].” ²⁰ Since there is a similar absence of authority for district courts to mandate participation in rehabilitation programs while serving a term of imprisonment on revocation, we are bound to conclude that a sentencing court may not consider rehabilitative needs in imposing or lengthening any term of imprisonment.

III

Having resolved that 18 U.S.C. § 3582(a) applies to a revocation sentence, we must determine whether the district court improperly considered Garza's rehabilitative needs in imposing a prison sentence. We conclude, based on the district court's comments at sentencing, that it did so in this case.

As noted, § 3582(a) proscribes the use of a defendant's rehabilitative needs in imposing a prison term or in calculating the length of the defendant's prison sentence. This does not mean, however, that a district court may make no reference to the rehabilitative opportunities available to a defendant. To the contrary, in Tapia the Court made clear that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” ²¹ A district court also may legitimately “urge the [Bureau of Prisons] to place an offender in a prison treatment program.” ²² However, when the district court's concern for rehabilitative needs goes further—when the sentencing record discloses “that the court may have calculated the length of [the defendant's] sentence to ensure that she receive certain rehabilitative services” ²³— § 3582(a) has been violated.

Our limited precedent post-Tapia has described the distinction between legitimate commentary and inappropriate consideration as whether rehabilitation is a “secondary concern” or “additional justification” (permissible) as opposed to a “dominant factor” (impermissible) informing the district court's decision. ²⁴ For example, in United States v. Receskey,²⁵ the district court discussed the potential rehabilitative opportunities available to a defendant only after discussing its independent, unrelated reasons for selecting the length of the defendant's sentence.²⁶ This court held that the sentencing court had committed no Tapia error.²⁷ By contrast, in United States v. Broussard,²⁸ the district court first described in detail the need to incarcerate a defendant for a long period given the seriousness of his offense and the need to deter those who would engage in similar conduct.²⁹ The court, however, then went on to describe the defendant as “sick in the head” and as “need[ing] help badly,” among other things, and noted that although avoiding sentencing disparities across cases is a goal in sentencing, it was “not as compelling as the need to incarcerate this individual for the treatment that he needs.” ³⁰ This court held that the district court improperly considered the defendant's rehabilitative needs in arriving at the length of his sentence.³¹

The record in the present case reflects that after noting generally that the Guidelines range of three to nine months of imprisonment “would not begin to address” Garza's conduct and “wouldn't satisfy the objectives applicable to revocation,” the court opined that Garza “should be required [or] at least be given an opportunity to...