United States v. Long

• Docket Number: 22-2275
• Decision Date: 22 August 2023
• Parties: United States of America, Plaintiff-Appellee, v. Delvarez Long, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

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United States of America, Plaintiff-Appellee,
v.
Delvarez Long, Defendant-Appellant.

No. 22-2275

United States Court of Appeals, Seventh Circuit

August 22, 2023

ARGUED AUGUST 1, 2023

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:21-cr-00212-001-TWP-TAB-1 - Tanya Walton Pratt, Chief Judge.

Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.

HAMILTON, CIRCUIT JUDGE.

This case presents another variation on the challenges posed for sentencing judges by instructions from Congress and the Supreme Court about the required, permissible, and prohibited roles of rehabilitation in sentencing.

Appellant Delvarez Long is serving an above-guideline prison term for possessing a firearm after being convicted of

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a felony. He argues on appeal that the district court plainly erred by imposing a prison term in part to rehabilitate him, contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United States, 564 U.S. 319 (2011). We affirm. Rehabilitation is an important consideration in most sentences. Tapia permits a judge to discuss rehabilitation so long as she does not make rehabilitation a primary consideration in deciding whether to impose a prison sentence or how long it should be. Our review of this record does not show a plain error under Tapia.

I. Factual Background and Procedural History

Indianapolis police officers arrested Long on an outstanding warrant for domestic battery. They discovered a stolen firearm in his waistband and cocaine in plain view. Long was charged under 18 U.S.C. § 922(g)(1) with possessing a firearm as a convicted felon.

Long decided to plead guilty, and the district court combined his guilty-plea hearing with his sentencing. The court found his advisory guideline range was 33 to 41 months in prison. Long's counsel argued for a 33-month sentence and asked the court to recommend that the Bureau of Prisons place him in a drug treatment program. The government argued for an above-guideline sentence of 60 months on the ground that Long's criminal history score was underrepresentative.

After hearing from counsel and Long himself, the court said it intended to impose an above-guideline sentence of 51 months in prison to be followed by three years of supervised release with conditions of drug testing and treatment. The court then explained its reasons. It started by noting that Long had four felony convictions and several other convictions,

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and that the guideline calculation understated his criminal history. Long's history of domestic violence, in particular, was "very concerning" to the court, which considered as relevant conduct an incident in which Long threatened his girlfriend with what she believed to be a handgun, waved it in her face, and threatened to hurt her. Long was charged with felony intimidation in state court for this conduct, but the charge was ultimately dismissed. The threat did not add to his criminal history calculation.

The court recognized that Long had been "afforded the opportunity for rehabilitation by probation, parole, supervision, community corrections, jail sentences, and even a prison sentence." After acknowledging that Long accepted responsibility for his crime, the court emphasized that it was "a very serious offense" to carry a loaded, stolen handgun while possessing cocaine. The court noted that Long had admitted he was addicted to drugs and requested treatment, and that he "was abusing cocaine on a regular basis .. had possession of some fentanyl, which is a very dangerous and deadly drug, . [a]nd he's experimented with both ecstasy and Adderall." The court also mentioned that Long owed approximately $80,000 in child support and had limited employment history, though he had obtained a high school diploma in prison.

The court then made the statements at the heart of this appeal:

Mr. Long needs to gain control of his life by maintaining sobriety, establishing legitimate employment, and taking care of his children. He needs some domestic violence assistance because he was-he's violent. He's domestically

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violent. He needs to get his child support paid and become a productive member of society.

So the Court is ordering this sentence to promote respect for the law and provide just punishment, and it is a long enough time that the defendant can participate in prison industries, as well as learn some job skills so that - that he can use upon his release. Those are the reasons the Court intends to impose the stated sentence.

The court asked counsel if they had any reasons why sentence should not be imposed as stated. Counsel responded no, and the court imposed the announced sentence. The court recommended to the Bureau of Prisons that Long be allowed to participate in a drug treatment program.

II. Analysis

On appeal, Long argues that the district court plainly erred by imposing his prison sentence in part to rehabilitate him. He and the government agree that plain-error review applies because he did not object in the district court when he had the opportunity to do so before the sentence was actually imposed.

To succeed on appeal, Long must establish that (1) there was an error, (2) it was clear or obvious, and (3) it affected his substantial rights. If he makes those showings, we must exercise our discretion to decide whether (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (applying plain-error review to sentencing). We decide this case at step two: if there was an error, it was not clear or obvious.

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Under 18 U.S.C. § 3582(a), sentencing courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." The Supreme Court held in Tapia v. United States, 564 U.S. 319, 332 (2011), that the statute "precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation." Rehabilitation under § 3582(a) includes "treatment, training, and like programs" of the kind mentioned in § 3553(a)(2)(D), such as "educational or vocational training, medical care, or other correctional treatment." Tapia, 564 U.S. at 333. Although rehabilitation is one of the statutory purposes of sentencing under § 3553(a), "imprisonment is not an appropriate means of pursuing that goal." Id. at 328.

A district judge facing a convicted defendant, and considering § 3582(a) and Tapia, on one hand, and the need to consider rehabilitation on the other, faces-pick your meta-phor-a cognitive tightrope, or a minefield, or the challenge of not thinking about the elephant in the room. See United States v. Shaw, 39 F.4th 450, 459 (7th Cir. 2022). In deciding first whether the sentence should include any prison time, the judge must consider rehabilitation as a goal but may not use prison for rehabilitative purposes. If a prison term will be imposed, the judge may not consider the possibility that prison will contribute to rehabilitation in deciding how long the prison term should be. But the judge should also consider rehabilitation in deciding other aspects of the sentence, including a supervised release term and conditions, as well as fines and restitution. Finally, in explaining the sentence, the judge may encourage the defendant to take advantage of any rehabilitation opportunities available in prison, such as treatment and counseling for substance abuse and addiction, educational programs, and job training and work experience. In

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explaining the entire sentencing package, which aims to serve multiple goals, it...