U.S. v. Story

• Decision Date: 22 February 2011
• Docket Number: No. 09–6261.,09–6261.
• Citation: 635 F.3d 1241
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Amber Elaine STORY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

635 F.3d 1241

UNITED STATES of America, Plaintiff–Appellee,

v.Amber Elaine STORY, Defendant–Appellant.

No. 09–6261.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2011.

Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Federal Public Defender, Oklahoma City, OK, for Appellant.Jonathon E. Boatman, Assistant United States Attorney (Sanford C. Coats, United States Attorney, and Timothy W. Ogilvie, Assistant United States Attorney, with him on the briefs) Office the United States Attorney, Oklahoma City, OK, for Appellee.Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The district court sentenced Amber Elaine Story to additional time in prison so that she might be eligible for a drug rehabilitation program available only to prisoners serving 24 months or more. She now challenges her sentence, claiming it violates 18 U.S.C. § 3582(a), which directs sentencing judges to “recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation.” We conclude this statute prevents a sentencing court from increasing a sentence for rehabilitative objectives. The district court therefore erred in increasing Story's sentence for this purpose. But we also conclude the district court did not commit plain error because the scope and interpretation of § 3582 has created a circuit split, which the United States Supreme Court has agreed to review this term. See Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 817, 178 L.Ed.2d 551 (2010) (granting certiorari).

Finding no plain error, we AFFIRM.

I. Background

Story pleaded guilty to one count of unlawful possession of stolen mail in violation of 18 U.S.C. § 1708. Story's actions were part of a larger scheme to obtain drugs to supply her addiction: she stole mail in search of checks, which she would bring to a co-conspirator for alteration and then cash. As payment for stealing and cashing the altered checks, Story received drugs or a portion of the checks' proceeds.

The United States Sentencing Guidelines called for a sentencing range of 12 to 18 months' imprisonment. The presentence report (PSR) identified no factors warranting a departure or variance from the Guidelines.

The government made no objection to the PSR and no recommendation as to sentencing. Story's trial counsel, however, sought a downward departure on the grounds of Story's mental health history and drug addiction. The court nonetheless sentenced her above the guideline range to 24 months' imprisonment. The court explained the sentence was necessary to make her eligible for a residential drug abuse program available only for prisoners with sentences in excess of 24 months:

[Story's] history of mental health issues.... [and] very significant drug addiction.... have driven the substantial criminal record.... [T]he solution to this is treatment.... And I think, frankly, that that circumstance is what drives my ultimate sentencing decision here perhaps more than any other thing.... [W]hat in my view is the most pertinent consideration here, and it's fairly rare for me to conclude this ... [is] the need for [Story] to receive care or treatment in a correctional setting....

The thing that is most necessary for Miss Story is to have a sustained and intense drug rehabilitative experience in a correctional setting where her circumstances and participation and access and so on can be controlled, and hopefully to couple that with such mental health services that are available. But the ... program that the Bureau of Prisons offers that includes the long-term intensive drug treatment is the Residential Drug Abuse Program. That program is ordinarily not available to persons who are incarcerated for less than 24 months. And, frankly, I think it is critical that she receive that treatment.

So as a result of that, while I think in the absence of these other specific factors I would have sentenced Miss Story within the guidelines, I think it is imperative that she receive a sentence that would qualify her to get this more intensive treatment, give her the opportunity on a longer term to dry out and get the drugs out of her system and hopefully develop the tools to lick the addiction problem and to give her a more stable platform from which she could then address her various mental health issues.

R. Vol. III at 51–55 (emphasis added). Story's counsel objected because even with the longer sentence there was no guarantee that she would be eligible for the treatment program due to outstanding warrants.

Counsel did not object on the ground that the higher sentence violated § 3582(a)'s command that sentencing courts may not use rehabilitative goals to increase the length of prison sentences.

II. Discussion

Story's only argument on appeal is the district court's decision to extend her term of imprisonment for the purpose of making her eligible for the residential drug treatment program was directly contrary to the statutory prohibition set forth in § 3582(a). She asserts her sentence is therefore unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

A. Standard of Review

Ordinarily, the sentencing court's application of the Guidelines is subject to de novo review. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006). But because Story's trial counsel failed to raise the § 3582(a) issue at sentencing, we review only for plain error. United States v. Trujillo–Terrazas, 405 F.3d 814, 817 (10th Cir.2005). To establish plain error, Story must demonstrate the district court (1) committed error, (2) the error was plain, and (3) the plain error affected her 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.

We review a criminal sentence for reasonableness. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence is procedurally unreasonable if it is based on consideration of an impermissible factor. See United States v. Smart, 518 F.3d 800, 803 (2008).

B. Sentencing to Promote Rehabilitative Goals

Story's challenge arises out of the tension between two statutory provisions governing sentencing: 18 U.S.C. § 3553(a) and 18 U.S.C. § 3582(a).

The first provision, § 3553(a), requires courts to take a holistic view of the defendant and the crime. It directs courts to examine the defendant's personal characteristics, criminal history, and the nature of the crime committed to determine an appropriate sentence, which may include incarceration, special conditions upon release, and restitution. As a part of this examination, § 3553(a)(2)(D) also commands the sentencing court to consider, among other factors, “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.” (emphasis added).¹

But § 3553 is tempered by a another statutory provision, § 3582(a), which expressly limits imprisonment as a means to promote rehabilitative goals:

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).

The two competing objectives set forth in these statutes is the crux of Story's appeal. She contends the district court erred in sentencing her to a longer term of imprisonment—6 months above the 18 month guideline maximum—to make her eligible for a drug treatment program. She argues the court not only violated the plain language of § 3582, but also left no guarantees that she would even be admitted to the treatment program since placement is discretionary with prison officials and the program may not be offered in every facility.

The circuits are split in interpreting and reconciling these provisions. And after oral argument in this case, the government submitted a pleading reversing its view in the briefs that § 3582(a) could be harmonized with § 3553(a) to allow a sentence based on rehabilitative needs. The government now concedes the district court's sentence violated § 3582(a).² In addition, the United States Supreme Court granted certiorari to consider and resolve the circuit split. Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 817, 178 L.Ed.2d 551 (2010) (granting certiorari on the following question: “May a district court give a defendant a longer prison sentence to promote rehabilitation, as the Eighth and Ninth Circuits have held, or is such a factor prohibited, as the Second, Third, Eleventh, and D.C. Circuits have held?”).

We agree with the circuits that have concluded sentencing courts may not increase the term of incarceration to advance rehabilitative goals. Although a commendable objective, that goal is contrary to the statutory command of § 3582(a).

The circuit split presents several conflicting interpretations of the statutory provisions. The first, represented by the Eighth and Ninth Circuits, reads § 3582(a) to prohibit consideration of rehabilitation only in deciding whether to impose a term of imprisonment in the first place. For example, in United States v. Hawk Wing, 433 F.3d 622, 629–30 (8th Cir.2006), the Eighth Circuit concluded once a sentencing court has properly decided some term of imprisonment is appropriate, it may go on to consider goals of rehabilitation to determine the length of the term. Id. Similarly, the Ninth Circuit in United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994), embraced a narrow interpretation of § 3852(a): “[i]f Congress had intended to...