U.S. v. Cordery
Decision Date | 30 August 2011 |
Docket Number | No. 10–4068.,10–4068. |
Citation | 656 F.3d 1103 |
Parties | UNITED STATES of America, Plaintiff–Appellee,v.Curtis CORDERY, Defendant–Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Benjamin McMurray, Assistant Federal Defender (Steven B. Killpack, Federal Defender, with him on the briefs), Utah Federal Defender's Office, Salt Lake City, UT, for Appellant.Karin Fojtik, Assistant United States Attorney (Carlie Christensen, United States Attorney, and Diana Hagen, Assistant United States Attorney, with her on the briefs), United States Attorney's Office, Salt Lake City, UT, for Appellee.Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.TYMKOVICH, Circuit Judge.
Curtis Cordery appeals his sentence, arguing that it was error for the district court to increase his term of imprisonment to enable him to qualify for a prison drug treatment program. After oral argument, we issued an opinion in a different case concluding that a district court cannot rely on rehabilitative goals in imposing a term of incarceration. See United States v. Story, 635 F.3d 1241 (10th Cir.2011). The Supreme Court reached the same conclusion recently in Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). Based on these decisions, we find Cordery's sentence was plain error.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we REMAND for resentencing.
Cordery pleaded guilty to one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The United States Sentencing Guidelines recommended a sentencing range of 51–63 months' imprisonment. At sentencing, Cordery's trial counsel sought a sentence below the guidelines range based on Cordery's need for substance abuse and mental health treatment, noting “the court is specifically charged to consider the need for treatment in imposing sentencing.” R., Vol. I at 35. He also stated the sentence should “provide the defendant with needed medical care or other correctional treatment in the most effective manner,” id. at 33 (quotation and alteration omitted), and requested that the court place Cordery in the RISE Mental Health Program, an outpatient treatment program. R., Vol. II at 87.
The court asked, “Given the fact that Mr. Cordery has suffered from alcoholism ... and has had ... the use of drugs and cocaine and probably other drugs, what is your reaction to recommending him for the [Rehabilitative Drug Abuse Program (RDAP) ]?” Id. at 88. Cordery's counsel stated that this recommendation would be “just fine.” Id.
After considering arguments from both parties, the district court imposed a sentence of 56 months. The court explained this decision was based on several of the sentencing factors identified in 18 U.S.C. § 3553(a)(2), including the goal of deterrence and the serious nature of the crime. The court also commented:
Part of my reason for imposing that sentence is that when I take into account the time that Mr. Cordery has already served, plus the amount of time that is required for him to qualify for an RDAP program, he needs a sentence of at least 56 months to be able to successfully complete that program together with mental health counseling.
In response to objections from Cordery's counsel that a lesser sentence would make Cordery eligible for RDAP, the court stated its belief that a prisoner serving a term of less than 30 months is not eligible for RDAP. The court calculated that, with time served and reductions for good behavior, a 56–month sentence was necessary to meet this minimum.
Cordery challenges his sentence on appeal. He argues the district court's consideration of rehabilitative goals in extending his term of imprisonment violated 18 U.S.C. § 3582(a), which instructs the court to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”
A. Standard of Review
Cordery's counsel objected to the imposition of the 56–month sentence before the district court. But this objection was based only on the theory that the court was mistaken as to RDAP eligibility requirements. Because Cordery argues that his sentence was contrary to § 3582(a) for the first time on appeal, the district court did not have the opportunity to consider his objection and, if necessary, correct its ruling. Accordingly, we review only for plain error. See United States v. Trujillo–Terrazas, 405 F.3d 814, 817 (10th Cir.2005).
To establish plain error, Cordery must demonstrate the district court (1) committed error, (2) the error was plain, and (3) the plain error affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). If these factors are met, we may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 631–32, 122 S.Ct. 1781.
B. Cordery's Sentence Was Error
The issue raised by this appeal was resolved by United States v. Story, 635 F.3d 1241 (10th Cir.2011), a recent decision whose statutory analysis was affirmed by the Supreme Court in Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). In Story, as here, a federal prisoner asserted the district court erred in imposing a longer term of imprisonment in order to make her eligible for RDAP.
In addressing that appeal, we considered the apparent tension between two provisions of the sentencing guidelines. Titled “Factors to be considered in imposing a term of imprisonment,” § 3582(a) states:
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.
(emphasis added). However, 18 U.S.C. § 3553(a), titled “Factors to be considered in imposing a sentence,” instructs the sentencing court to consider “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.”
Reconciliation of these two provisions had divided the circuit courts. Compare United States v. Hawk Wing, 433 F.3d 622, 629–30 (8th Cir.2006), and United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994), with In re Sealed Case, 573 F.3d 844, 849–51 (D.C.Cir.2009), and United States v. Manzella, 475 F.3d 152 (3d Cir.2007).
We adopted the view that § 3553(a) authorizes consideration of rehabilitation in composing a sentence generally, but that § 3582(a) prohibits consideration of rehabilitation in setting one aspect of that sentence, the term of imprisonment. See Story, 635 F.3d at 1247–48. Thus, while a court can pursue the goal of rehabilitation in sentencing, for example, in setting the terms of supervised release, it cannot do so in either determining whether to impose a term of incarceration, or in determining the length of that term. Id. But because of the split of authority on the question at the time of appeal—including mixed signals from our court—we concluded the district court's error was not plain, and affirmed Story's sentence. Id. at 1248.
Shortly after we published the opinion in Story, the Supreme Court issued its decision in Tapia. That decision confirmed our reading of both statutory provisions.
We therefore conclude that, under § 3582(a), the district court's reliance on rehabilitative goals to set the length of Cordery's sentence was error.
C. The Error Was Plain
We next consider whether the error is plain—that is, whether it is “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error is clear where “the Supreme Court or this court [ ] [has] addressed the issue” or where “the district court's interpretation was clearly erroneous.” United States v. Ruiz–Gea, 340 F.3d 1181, 1187 (10th Cir.2003) (quotation omitted).
The government notes the district court's error was not plain or obvious at the time of sentencing; there was no Supreme Court precedent on point, and the only relevant Tenth Circuit cases were both unpublished and potentially misleading. See Story, 635 F.3d at 1248. In addition, the question had created a circuit split. Nonetheless, the government concedes this prong based on the recent publication of Story and Tapia, citing our en banc case addressing sentencing error in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for the proposition that “an error is ‘plain’ if it is clear or obvious at the time of appeal.” Aple. Supp. Br. at 10 (quoting United States v. Gonzalez–Huerta, 403 F.3d 727, 744–45 (10th Cir.2005) (emphasis added)).
It is true that a number of our cases have repeated this standard, although none has done so in any analytical depth. See, e.g., United States v. Gonzales, 558 F.3d 1193, 1200 n. 7 (10th Cir.2009) ( ; United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir.2009) ( ); United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.2008) ().
It is worth noting, however, that the question of whether an error must be plain at the time of trial or merely at the time of appeal has divided the circuits. In Olano, while clarifying the application of plain error review, the Supreme Court held...
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