United States v. Deen

• Decision Date: 07 February 2013
• Docket Number: No. 11–2271.,11–2271.
• Citation: 706 F.3d 760
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael DEEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

706 F.3d 760

UNITED STATES of America, Plaintiff–Appellee,

v.Michael DEEN, Defendant–Appellant.

No. 11–2271.

United States Court of Appeals, Sixth Circuit.

Feb. 7, 2013.

ON BRIEF:John M. Karafa, McCroskey Law, Muskegon, Michigan, for Appellant. Jennifer L. McManus, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: SILER, GRIFFIN and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

In the mid–1880s, Victor Hugo is said to have written, “He who opens a school door, closes a prison.” Our national debate about the relationship between education and crime, both in regard to prevention and rehabilitation, has long raged. A part of it—the part that asks whether rehabilitation is a viable penological goal—has been at the heart of Congress's shaping of the American prison system. A unanimous Supreme Court recently held that the Sentencing Reform Act does not permit a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). Tapia involved a defendant's initial sentencing. This appeal gives us occasion to consider whether that prohibition applies when a court imposes or lengthens a prison term that follows the revocation of supervised release. We conclude that it does. As a result, we VACATE Defendant Michael Deen's sentence and REMAND for resentencing.

I. BACKGROUND

In 2008, Michael Deen was convicted of distributing five grams or more of cocaine base and sentenced to prison for 66 months, to be followed by four years of supervised release. Deen was released from prison after the custodial portion of his sentence was reduced and began his supervised release term in March 2011.

Five months later, Deen's probation officer recommended revocation of his supervised release. The district court conducted a revocation hearing in September at which Deen pleaded guilty to violations stemming from two domestic violence incidents, alcohol use, and his failure to report to the probation office and to attend behavioral therapy.

Although the applicable Guidelines' policy statements recommended imprisonment for four to ten months, Deen's probation officer suggested a two-year sentence. The government agreed and pushed for “a significant term of imprisonment where [Deen] hopefully can get some treatment for alcohol abuse, and perhaps counseling in terms of anger management [that] would be very helpful for [him].”

The court sentenced Deen to 24 months' imprisonment, followed by 24 months of supervised release. The judge explained her decision: “[I]t is important to consider whether the goal of rehabilitation, which I think is the end game in terms of the criminal justice system, can be best achieved through incarceration, and it sounds as though maybe it can.” Deen's violations of his supervised release conditions did not “bode well for simply continuing supervised release.” Instead, an above-range sentence was necessary to “give the Bureau of Prisons another chance to do some in-depth rehabilitation with Mr. Deen.”

In March 2012, Deen and the government jointly requested that this court vacate Deen's sentence and remand his case to the district court for resentencing in light of the Supreme Court's decision in Tapia. Although Tapia involved a defendant's initial sentencing, the government and Deen argued that its bar on sentencing decisions based on a defendant's rehabilitative needs applies equally to supervised-release sentences. Deen's appeal presents an issue of first impression to which we now turn.

II. ANALYSIS

A. Standard of review

“We review a district court's sentencing decision under a two-part test, ensuring first ‘that the district court committed no significant procedural error,’ and second that the sentence imposed was substantively reasonable.” United States v. Walker, 649 F.3d 511, 513 (6th Cir.2011) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). No procedural errors have been identified here, so we pass only on the substantive reasonableness of Deen's sentence. Basing a sentence on impermissible factors is an example of substantive unreasonableness, United States v. Webb, 403 F.3d 373, 385 (6th Cir.2005), which we review for abuse of discretion, Gall, 552 U.S. at 41, 128 S.Ct. 586. The standard is the same regardless of whether the sentence was imposed following conviction or, as here, for supervised release violations. United States v. Peebles, 624 F.3d 344, 347 (6th Cir.2010).

B. Statutory framework

Tapia recounts the historical development of federal sentencing laws and the shifting sentiment toward the role of rehabilitation in sentencing that these laws reflect. See 131 S.Ct. at 2386–87. Before 1984, federal law granted district judges wide discretion to craft a defendant's sentence. Id. at 2386. In doing so, courts could consider a defendant's amenability to rehabilitation, which was viewed as a sound penological goal that the sentencing decision would further.

Various factors—such as disparities imposed on similarly-situated defendants, changing social attitudes about the wisdom of rehabilitation, and budget constraints—ultimately pushed the concept of rehabilitation into disfavor. The perceived failures of the system led to a sentencing sea change culminating in Congress's enactment of the Sentencing Reform Act of 1984 (the Act), Pub.L. No. 98–473, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551–86), which effectively removed much of the discretion judges enjoyed in fashioning prison sentences. Instead, Congress created the Sentencing Commission to draft guidelines that “would provide courts with ‘a range of determinate sentences for categories of offenses and defendants.’ ” Tapia, 131 S.Ct. at 2387 (quoting Mistretta v. United States, 488 U.S. 361, 368, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). And it vested control over where federal prisoners are incarcerated and the rehabilitation programs available to them in the Bureau of Prisons (BOP), the administrator of the national prison system. Though Congress sharply cabined the role of judicial discretion in sentencing, it did not wholly eliminate it.

As explained in Tapia, the Act establishes a “framework to govern [district courts'] consideration and imposition of sentences.” Id. It requires a court to order one or more criminal sanctions—which may include imprisonment (almost always followed by supervised release), probation, or fines—when sentencing a defendant. See18 U.S.C. § 3551(b). The statute further compels a court to consider the extent to which the sentence imposed furthers the four purposes of sentencing—namely, retribution, deterrence, incapacitation, and rehabilitation. See id. § 3553(a)(2).¹ After such consideration, the court must fix a sentence that achieves these purposes “ to the extent that they are applicable in light of all the circumstances of the case.” Id. § 3551(a) (emphasis added). “[A] particular purpose,” then, “may apply differently, or even not at all, depending on the kind of sentence under consideration.” Tapia, 131 S.Ct. at 2388.

District courts have authority to sentence defendants to a term of imprisonment pursuant to 18 U.S.C. § 3582. When deciding whether to impose an initial prison sentence—and, if so, its length—the statute requires the court to consider the “applicable” sentencing purposes. 18 U.S.C. § 3582(a). But it admonishes the court to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” Id. In Tapia, the Supreme Court held that this statutory warning “precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation,” at least when imprisonment follows a defendant's initial conviction. 131 S.Ct. at 2391. Congress, Tapia observed, was “skeptical that rehabilitation can be induced reliably in a prison setting.” Id. (internal quotation marks omitted). Fueled by this skepticism, “Congress barred courts from considering rehabilitation in imposing prison terms, but not in ordering other kinds of sentences.” Id. (citations omitted).

Distinct from the authority to imprison defendants under § 3582, the Act also empowers courts to order supervised release as part of a defendant's sentence. See generally18 U.S.C. § 3583. Supervised release permits a court to oversee to varying degrees a defendant's social reintegration and personal rehabilitation following imprisonment. Section 3583 requires a court deciding whether to include a permissive supervised release term to first consider the extent to which it advances the purposes of deterrence, incapacitation, and rehabilitation (though not retribution). See id. § 3583(c). Since it occurs outside of a prison setting, supervised release is precisely one of the “other kinds of sentences” that a court may order to promote a defendant's rehabilitative needs.

But § 3583 does more than allow a court to impose a term of supervised release. Based on a defendant's later conduct, it also permits a court to terminate or extend a supervised release term, modify its conditions, or revoke it altogether. Id. § 3583(e). Critical to this case is the revocation power, which, if elected, will “require the defendant to serve in prison all or part of the term of supervised release.” Id. § 3583(e)(3). A court revoking a defendant's supervised release term under § 3583(e)(3) and sending him back to prison must again consider the extent to which this action promotes deterrence, incapacitation, and rehabilitation—the same sentencing purposes it contemplated when it imposed the supervised release term in the first place.

And here the issue before us comes into view. On the one hand, Tapia instructs that § 3582(a)bars consideration of a defendant's rehabilitative needs when sentencing him to prison following his conviction. 131 S.Ct. at...