In re Sealed Case

• Decision Date: 28 July 2009
• Docket Number: No. 08-3029.,08-3029.
• Citation: 573 F.3d 844
• Parties: In re SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

573 F.3d 844

In re SEALED CASE.

No. 08-3029.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2009.

Decided July 28, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:07cr00015-JDB-01).

Jonathan Zucker argued the cause and filed the briefs for appellant.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Kenneth F. Whitted, Assistant U.S. Attorneys.

Before: HENDERSON, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge:

Sentenced to eleven years in prison after pleading guilty to unlawful distribution of 2.1 grams of heroin, defendant appeals, arguing that the district court improperly sought to promote his rehabilitation through a longer term of imprisonment. Although defendant's failure to object to the district court's reasoning at sentencing limits us to plain error review, we agree that 18 U.S.C. § 3582(a) expressly prohibits sentencing courts from treating rehabilitation as a reason for imposing a longer term of imprisonment. In light of this clear statutory provision, and because this case also meets the remaining elements of the stringent plain error test, we vacate the sentence and remand for resentencing. Also, in accordance with our general practice and the government's concession, we remand defendant's additional claim that he received ineffective assistance of counsel.

I.

Defendant, a 56-year-old drug addict, sold $20 worth of heroin to an undercover officer. Approached by officers shortly after the sale, defendant discarded 32 additional ziplock bags of a substance that tested positive for opiates. District of Columbia authorities arrested defendant and later charged him in the Superior Court of the District of Columbia with unlawful distribution of heroin and possession of heroin with intent to distribute. After protracted plea negotiations, defendant accepted a cooperation agreement entailing transfer of his case to the United States District Court for the District of Columbia, where he pled guilty to unlawful distribution, see 21 U.S.C. § 841(a)(1), (b)(1)(C). Defendant's subsequent attempts at cooperation produced little of use to the government and ultimately ended when he failed a drug test.

Defendant's crime of distribution of less than five grams of heroin set his federal Sentencing Guidelines base offense level at 12. U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(14) (2007). Although the district court based the offense level on only the 2.1 grams of heroin involved in the incident for which defendant was arrested, defendant's criminal history category of VI reflected his long-term involvement with heroin dealing and related crimes. Because defendant's cooperation efforts were ultimately unfruitful, the government declined to request a downward departure for substantial assistance, id. § 5K1.1, but it did acknowledge that defendant was entitled to credit for acceptance of responsibility, id. § 3E1.1 (providing for two-level acceptance of responsibility credit plus additional one-level decrease in certain circumstances for base offense levels of 16 or higher). Finding the cooperation efforts in good faith, the district court agreed that an acceptance of responsibility credit was warranted. Together defendant's base offense level, criminal history category, and acceptance of responsibility credit would have yielded a guidelines range of 24 to 30 months. Defendant's prior felony convictions, however, triggered the sentence enhancement for career offenders, id. § 4B1.1, which automatically increased his guidelines range to 151 to 188 months.

Having calculated this advisory guidelines range, the district court weighed several of the sentencing factors listed in 18 U.S.C. § 3553(a). Beginning with the nature of the offense, the district court, though recognizing the seriousness of heroin dealing, acknowledged that the specific transaction for which defendant was arrested involved only a small quantity of drugs. The district court also considered defendant's lengthy criminal history, which it attributed to his drug addiction, saying:

The most important parts of that history add up simply to the fact that the defendant has been involved in using drugs and in criminal activity that is in conjunction with that use, the heroin distribution trade and small — not insignificant but small thefts of various kinds, presumably to help support the habit.

Sentencing Tr. 29. The district court viewed this pattern of recidivism as relevant to one of the section 3553(a) sentencing factors, namely, the need to protect the public from further criminal activity. See § 3553(a)(2)(C). Next, in a colloquy central to the issue before us, the district court turned to "another factor under 3553(a)," stating:

I do think that the defendant may benefit from some of the programs and educational training and the medical treatment that is available in the federal prison system, and that would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.

Sentencing Tr. 31-32. Before imposing the sentence, the district court reiterated the relevant factors, including "the need ... to provide the defendant with needed educational or vocational training or other treatment in the correctional system in an effective manner." Id. at 32; see § 3553(a)(2)(D). While believing that a "substantial" sentence was called for, the district court reassured defendant that his sentence would allow "the prospect of release at some point in the future." Sentencing Tr. 33. In the end, the district court concluded that a below-guidelines sentence of 132 months was "sufficient but not greater than is necessary to comply with the purposes of sentencing as set out in the various factors in Section 3553(a)." Id. After recommending that defendant be admitted to the prison's "500-hour" drug treatment program, id. at 34, the district court encouraged him to take advantage of drug treatment and educational programs during his time in prison, id. at 37.

Defendant now appeals, arguing that the district court improperly treated imprisonment as a means of promoting rehabilitation and consequently imposed a longer prison term. Defendant also claims that he received ineffective assistance of counsel during plea negotiations. Accepting the government's concession that we should remand the latter claim for an evidentiary hearing under United States v. Rashad, 331 F.3d 908, 909-910 (D.C.Cir. 2003), we need address only the sentencing challenge.

II.

Because defendant's trial counsel failed to object at sentencing, we review his sentencing claim for plain error. United States v. Mouling, 557 F.3d 658, 665 (D.C.Cir.2009). Under this standard, defendant must show that the error occurred, that it was "plain," and that it affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these three elements are met, we may reverse only if we find that the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and brackets omitted).

Defendant's sentencing challenge involves the interplay between two statutory provisions governing criminal sentencing, both of which refer to the role of rehabilitation. The first, section 3553, is the familiar provision governing all sentencing determinations. Entitled "[i]mposition of a sentence," it directs sentencing courts to "impose a sentence sufficient but not greater than necessary" to comply with four enumerated purposes of sentencing. § 3553(a). Subsections (a)(2)(A), (B), and (C) set forth the goals of providing just punishment, deterring further crime, and protecting the public. Id. And central to the issue before us, subsection (a)(2)(D), directs sentencing courts to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." § 3553(a)(2)(D).

Sentencing courts must also abide by the second provision at issue here, section 3582, which covers "[i]mposition of a sentence of imprisonment" and sets forth the "[f]actors to be considered in imposing a term of imprisonment," § 3582(a). It 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 section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

Id.

Relying on section 3582(a), defendant argues that a sentencing court errs if it imposes a longer term of imprisonment as a means of rehabilitating a defendant. According to defendant, the district court here did just that, as evidenced by its statement that defendant "may benefit from some of the programs and educational training and the medical treatment that is available in the federal prison system, and that would actually be more available and more useful for [him] over a somewhat longer period of time than it would over a very short period of time." Sentencing Tr. 31-32.

For its part, the government sees no error in the district court's approach. Although acknowledging that section 3582(a) bars a sentencing court from choosing a prison term over a non-incarceration sentence because of the rehabilitative programs available in prison, the government insists that once the sentencing court makes the initial decision to imprison a defendant, it may then treat those same rehabilitative concerns as...