United States v. Eric King ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12963
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC KING,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:02-cr-00016-TFM-C-1
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2 Opinion of the Court 21-12963
____________________
Before ROSENBAUM, GRANT, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
Eric King appeals his 36-month prison sentence imposed
upon revocation of his supervised release. He argues that his sen-
tence is substantively unreasonable because (1) his conduct did not
constitute a new criminal offense; (2) he accepted responsibility for
his actions; and (3) he was less than a year away from completing
his supervised release. After careful review, we affirm.
I.
On January 30, 2002, King was indicted on one count of con-
spiracy to manufacture methamphetamine, in violation of 21
U.S.C. § 846. He pled guilty, and was sentenced to 168 months in
prison, followed by five years of supervised release. King com-
pleted his prison sentence in 2014 and then began serving his su-
pervised release. A condition of his supervised release was the re-
quirement that he participate in drug testing and treatment.
Between February and December 2017, the Probation Of-
fice submitted five reports to the District Court indicating that King
had submitted urine samples that tested positive for methamphet-
amine and had admitted to using methamphetamine. The Proba-
tion Office recommended that King be allowed to continue his su-
pervised release while receiving outpatient substance abuse
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21-12963 Opinion of the Court 3
treatment. The Court agreed with the recommendations and al-
lowed King to remain on supervised release.
In January 2018, the Probation Office petitioned the District
Court to revoke King’s supervised release because he (1) failed to
report for urine surveillance testing; (2) submitted a urine sample
that tested positive for methamphetamine; (3) failed to attend drug
treatment and counselling sessions; and (4) was discharged from a
drug treatment program for failing to comply with its conditions.
King admitted the violations. The District Court accordingly re-
voked his supervised release and sentenced him to serve six months
in prison, followed by 36 months of supervised release. King
served his prison time and once again was placed on supervised re-
lease.
Between August and September 2018, the Probation Office
twice reported to the District Court that King tested positive for
methamphetamine but recommended he remain on supervised re-
lease. The Court agreed.
In December 2018, the Probation Office petitioned the Dis-
trict Court to revoke King’s supervised release because King had
violated its conditions by failing to attend drug testing on two oc-
casions and failing to report for drug treatment on four occasions.
The District Court declined to revoke King’s supervised release but
extended its term for 24 months and added a condition that he par-
ticipate in location monitoring for eight months.
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4 Opinion of the Court 21-12963
In July 2021, the Probation Office again petitioned the Dis-
trict Court to revoke King’s supervised release. The Probation Of-
fice stated that King had once again violated its terms by failing to
attend the required substance abuse treatment programs on three
occasions, failing to report to his probation officer as directed, and
failing to file a monthly supervision report for June 2021. The Pro-
bation Office recommended that King serve 36 months in prison
with no supervised release to follow, noting that he had numerous
opportunities to address his substance abuse since 2017 and was no
longer availing himself of treatment. Although the guidelines pre-
scribed a prison sentence of four to ten months, the Probation Of-
fice recommended 36 months. The Probation Office justified its
recommendation by stating that a prison sentence would give King
an extended period of forced sobriety, impose significant punish-
ment given his repeated offenses, take him out of society where he
was consistently under the influence of methamphetamine, and al-
low the Probation Office to focus its resources on individuals who
were amenable to treatment.
At the conclusion of his revocation hearing, King argued for
a sentence within the guideline range of four to ten months. The
Government requested a 36-month prison term with no additional
supervised release. The District Court then revoked King’s super-
vised release and imposed a prison term of 36 months with no su-
pervised release to follow. The Court stated that it needed to do
what was necessary to protect the public and to protect King from
himself. The Court recalled that it had treated King leniently in the
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21-12963 Opinion of the Court 5
past, yet he continued to test positive for drugs and appeared una-
ble to follow through with his treatment. The Court added that
King “need[ed] at least a 24-month term of imprisonment to have
a chance at [participating in] the intensive residential substance
abuse treatment program” the Bureau of Prisons provided.
II.
We review the substantive reasonableness of a sentence, in-
cluding a sentence imposed upon revocation of supervised release,
under a deferential abuse of discretion standard considering the to-
tality of the circumstances. Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007); United States v. Sweeting, 437 F.3d 1105,
1106–07 (11th Cir. 2006) (finding that the same reasonableness
standard that applies in reviewing an initial prison sentence also ap-
plies in reviewing a prison sentence imposed upon revocation of
supervised release). The party challenging the sentence bears the
burden to establish that the sentence is unreasonable according to
the facts of the case and the applicable § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Pursuant to 18 U.S.C. § 3583(e)(3), a district court may:
[R]evoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the of-
fense that resulted in such term of supervised release
without credit for time previously served on postre-
lease supervision, if the court . . . finds by a
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6 Opinion of the Court 21-12963
preponderance of the evidence that the defendant vi-
olated a condition of supervised release.
In deciding whether to revoke the supervised release, the court
must consider “the factors set forth in [18 U.S.C.] section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),” and (a)(4)–(7) 1 before re-
voking supervised release and imposing a prison term. § 3583(e).
King argues that the 36-month prison sentence that the Dis-
trict Court imposed after revoking his supervised release was sub-
stantively unreasonable given a proper application of the § 3553(a)
factors. He contends that the conduct to which he admitted (vio-
lations of conditions of supervised release) does not support a var-
iance from the guideline sentence range of four to ten months’ im-
prisonment. This is so because (1) the sentence imposed is “nine
times the low end and more than 3.5 times the high end of the
1 Section 3583(e) does not include § 3553(a)(2)(A) as an applicable factor. Sec-
tion 3553(a)(2)(A) covers the need for the sentence “to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment
for the offense.” While it appears that Congress did not intend that courts
consider § 3553(a)(2)(A) when imposing a prison sentence after revoking su-
pervised release, this Court has not resolved that question, and there is a cir-
cuit split on the issue. See United States v. Vandergrift, 754 F.3d 1303, 1308–
09 (11th Cir. 2014) (finding consideration of § 3553(a)(2)(A) on revocation of
supervised release was not plain error because neither this Court nor the Su-
preme Court has resolved the issue). In Sweeting, we suggested in dicta that
§ 3553(a)(2)(A) is an applicable factor under § 3583(e). 437 F.3d at 1107. This
issue is not in dispute here, but this Court should squarely address it.
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21-12963 Opinion of the Court 7
Chapter Seven advisory 2 guidelines”; (2) he repeatedly accepted re-
sponsibility for his conduct; and (3) he was less than one year away
from completing his supervised release. We are unpersuaded.
A district court imposes a substantively unreasonable sen-
tence, and thus abuses its discretion, when it “(1) fails to afford con-
sideration to relevant [§ 3553(a)] factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (internal quotation marks omitted). We say
this while recognizing that we give “due deference” to the district
court’s consideration and weighing of relevant sentencing factors.
United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018) (in-
ternal quotation marks omitted).
Whether the applicable § 3553(a) factors justify a variance is
a discretionary call. United States v. Shaw, 560 F.3d 1230, 1238
(11th Cir. 2009). Although a major variance should be supported
by a more significant justification than a minor variation, Gall, 552
U.S. at 50, 128 S. Ct. at 596–97, we do not presume that a sentence
outside of the prescribed guideline range is unreasonable. Irey, 612
F.3d at 1187. A sentence above the prescribed guideline range is
usually called for because a sentence within the range would not
2 The Sentencing Guidelines are advisory rather than mandatory as originally
enacted. United States v. Booker, 543 U.S. 220, 245–46, 125 S. Ct. 738, 757
(2005) (majority opinion of Breyer, J.).
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adequately reflect the relevant purposes of a sentence as set out in
§ 3553(a). United States v. Moore, 22 F.4th 1258, 1269 (11th Cir.
2022) (holding that an 18-month prison sentence imposed upon the
third revocation of the defendant’s supervised release was substan-
tively reasonable when the guideline range was 8 to 14 months).
Here, King’s above-the-guideline range sentence of 36
months was substantively reasonable. The District Court acted
within its discretion in giving greater weight to the nature and fre-
quency of King’s violations of the conditions of his supervisory re-
lease—including his continual methamphetamine use, failure to at-
tend substance abuse treatment programs, and failure to report to
his probation officer—than to his admission of the violations, lack
of new criminal charges, and near completion of the term of the
release.
III.
A.
After the District Court sentenced King and elicited the par-
ties’ objections, King did not object to the sentence on the ground
that the Court had improperly based his sentence on the need for
the sentence “to provide [him] with needed educational or voca-
tional training, medical care, or other correctional treatment,” i.e.,
rehabilitation. 18 U.S.C. § 3553(a)(2)(D). The dissent argues that
the Court erred in basing King’s sentence on his need for rehabili-
tation and that, under the plain error doctrine, we should vacate
the sentence and remand the case for resentencing.
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21-12963 Opinion of the Court 9
The dissent’s argument is based on our decision in United
States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014). There, apply-
ing Tapia v. United States, 564 U.S. 319, 131 S. Ct. 2382 (2011), we
held that the District Court, in revoking the defendant’s supervised
release, erred in sending him to prison for the purpose of rehabili-
tation. Vandergrift, 754 F.3d at 1311.
In Tapia, the Supreme Court held that, under 18 U.S.C.
§ 3582(a), “a court may not impose or lengthen a prison sentence
to enable an offender to complete a treatment program or other-
wise to promote rehabilitation.” 564 U.S. at 334–35, 131 S. Ct. at
2393. Then, in Vandergrift, we extended Tapia and held that the
District Court erred when it imposed a prison sentence upon revo-
cation of supervised release because it “considered rehabilitation
when crafting Vandergrift’s sentence of imprisonment.” 754 F.3d
at 1311. Vandergrift so held even though § 3583(e) directs courts
to consider § 3553(a)(2)(D), which covers rehabilitation, and Tapia
only addressed the initial imposition of a prison sentence under
§ 3582(a). See Tapia, 564 U.S. at 334–35. But Vandergrift binds us.
King has not made a Vandergrift argument here, on appeal.
King therefore forfeited the issue in this Court as well as in the Dis-
trict Court. See United States v. Olano, 507 U.S. 725, 732–33, 113
S. Ct. 1770, 1777–78 (1993) (discussing appellate courts’ discretion
to correct errors that were forfeited in district court) (citing Fed. R.
Crim P. 52(b)); United States v. Campbell, 26 F.4th 860, 873 (11th
Cir. 2022) (en banc) (holding that the failure to raise an issue in an
initial brief on appeal should be treated as forfeiture of the issue).
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10 Opinion of the Court 21-12963
The Dissent is correct that at sentencing, King challenged
the substantive reasonableness of his sentence on some grounds.
See post at 1; supra at 2. But King’s appellate brief here does not
include an argument that the District Court’s sentence was unrea-
sonable because the Court improperly considered rehabilitation in
fashioning King’s sentence. As we have explained, “[a]ny issue that
an appellant wants the Court to address should be specifically and
clearly identified in the brief.” Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004); see Fed. R. App. P. 28(a)(5)
(“The appellant’s brief must contain, under appropriate headings
and in the order indicated . . . a statement of the issues presented
for review.”). So, the appellant’s initial brief must contain the “ar-
gument[s]” the appellant wants this Court to consider so that the
appellee has a fair opportunity to respond. Access Now, 385 F.3d
at 1330. Indeed, courts typically find that challenging the substan-
tive reasonableness of a sentence without specifically arguing that
the district court improperly considered rehabilitation does not
preserve that issue. See, e.g., United States v. Replogle, 678 F.3d
940, 942 (8th Cir. 2012) (finding an appellant who raised some chal-
lenges to the substantive and procedural reasonableness of his sen-
tence forfeited the rehabilitation issue by not raising it in his initial
appellate brief).
Moreover, in Vandergrift, we categorized improper consid-
eration of rehabilitation as a “procedural error” because it consti-
tuted consideration of an “improper § 3553(a) factor”—that is,
§ 3553(a)(2)(D), which covers “provid[ing] the defendant with
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21-12963 Opinion of the Court 11
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 754 F.3d at
1310–11 (internal quotation marks omitted). We then found that
plain error review applied to the District Court’s consideration of
inapplicable § 3553(a) factors because the defendant did not object
to the procedural reasonableness of his sentence in the District
Court. See id. at 1307. In United States v. Alberts, we also called
improper consideration of rehabilitation a procedural error and re-
viewed a claim that the District Court improperly considered reha-
bilitation for plain error because the defendant did not specifically
object to consideration of rehabilitation in the District Court. 859
F.3d 979, 985 (11th Cir. 2017). Despite any gray area between pro-
cedural and substantive errors, the upshot is that a defendant must
specifically challenge consideration of rehabilitation to preserve the
issue in district court and on appeal.
B.
In short, because King forfeited the Vandergrift issue below,
we can only review it for plain error. 3 That means we cannot
3 Appellate courts can review an error not raised before the district or appel-
late court. See, e.g., United States v. Godoy, 821 F.2d 1498, 1504 (11th Cir.
1987); see also United States v. Broussard, 669 F.3d 537, 552–53 & n.10 (5th
Cir. 2012) (applying plain error when the defendant failed to raise a Tapia ar-
gument after not raising one at trial or in an initial appellate brief; the court
addressed the issue sua sponte because the Supreme Court decided Tapia after
the defendant filed his initial appellate brief). But we would only take up an
issue the defendant never raised at either level in “a rare situation.” Godoy,
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12 Opinion of the Court 21-12963
vacate his sentence unless: (1) there was an error; (2) the error was
plain—meaning clear under this Court’s or Supreme Court prece-
dent; and (3) the error affected King’s substantial rights. See Olano,
507 U.S. at 732–35, 113 S. Ct. at 1777–78. Correcting a plain error
is also discretionary; we only do so when an error “seriously af-
fect[ed] the fairness, integrity or public reputation of judicial pro-
ceedings.” Id. at 732, 113 S. Ct. at 1776 (internal quotation marks
omitted). The plain error rule promotes the fair and efficient reso-
lution of issues in the trial court; it encourages parties to surface an
issue when it occurs and, depending on the trial court’s resolution
of the issue, creates the record for meaningful appellate review.
See United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010)
(“By not objecting the lawyer can avoid any risk that an ambiguous
statement will be clarified or an actual error corrected on the spot
in response to an objection; she can keep the issue in her pocket in
hopes that it will serve as a get-out-of-judgment-free card on ap-
peal.”).
Considering the record of King’s sentencing as a whole, we
doubt that the District Court made a Vandergrift error. The record
does not clearly show that the District Court considered the need
for King’s rehabilitation as a purpose for his sentence. But assum-
ing the Court plainly erred, it did not affect King’s substantial rights
821 F.2d at 1504. Even if we found a Vandergrift error here, we would not
find sua sponte intervention appropriate.
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or seriously affect the fairness, integrity, or public reputation of the
revocation proceedings.
C.
In Tapia v. United States, the Supreme Court held that “a
court may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to pro-
mote rehabilitation.” 564 U.S. 319, 334–35, 131 S. Ct. 2382, 2392–
93 (2011). The Court was applying § 3582(a), which precludes fed-
eral courts from imposing a prison sentence as a “means of promot-
ing correction and rehabilitation.” The Court also discussed how
28 U.S.C. § 994(k) instructs the Sentencing Commission to “insure
that the guidelines reflect the inappropriateness of imposing a sen-
tence to a term of imprisonment for the purpose of rehabilitating
the defendant.” Id. at 326, 131 S. Ct. at 2388. In the same breath,
the Court emphasized that a district court can discuss “important
matters” like rehabilitation programs that are available in prison
with defendants during sentencing. See id. at 334, 131 S. Ct. at
2392.
Section 3582(a) and § 994(k) are from the Sentencing Reform
Act of 1984, Pub. L. No. 98-473, § 211, 98 Stat. 1987 (codified as
amended in various sections of 18 and 28 U.S.C.) (the “SRA”). Con-
gress prohibited district courts from considering rehabilitation as a
purpose for sentencing defendants to prison because it was elimi-
nating the “medical model” of sentencing. United States v. Scrog-
gins, 880 F.2d 1204, 1207 (11th Cir. 1989). The premise of the med-
ical model was that offenders had a “moral disease” and could be
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“cured” through “rigorous program[s] of hard work and moral
training” in prison. Id. at 1206.
Under the medical model, courts would sentence offenders
to indeterminate prison terms, “establishing only the maximum
length of the offender’s sentence.” Id. at 1207. A parole board
would then decide the “actual length” of an offender’s sentence by
monitoring the offender’s “rehabilitative progress” while incarcer-
ated. Id. Put another way, the parole board would decide when
the offender had been rehabilitated such that if released, he could
lead a law-abiding life.
By the 1960s, judges and penological experts started doubt-
ing the efficacy of the medical model. See id. In the SRA, Congress
effectively terminated use of the medical model because of two
main problems. Mistretta v. United States, 488 U.S. 361, 366, 109
S. Ct. 647, 652 (1989) (citing S. Rep. No. 98-225 at 38 (1983)). The
first “was the great variation among sentences imposed by different
judges upon similarly situated offenders.” Id. As then-Judge Breyer
explained, the Sentencing Commission found that, before the SRA:
the region in which the defendant is convicted is
likely to change the length of time served from ap-
proximately six months more if one is sentenced in
the South to twelve months less if one is sentenced in
Central California . . . . [F]emale bank robbers are
likely to serve six months less than their similarly sit-
uated male counterparts . . . [and] black [bank rob-
bery] defendants convicted . . . in the South are likely
to actually serve approximately thirteen months
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21-12963 Opinion of the Court 15
longer than similarly situated bank robbers convicted
. . . in other regions.
Stephen Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 5
(1988) (citation omitted) (alterations in original).
The second problem with the medical model was “the un-
certainty as to the time the offender would spend in prison.” Mis-
tretta, 488 U.S. at 366, 109 S. Ct. at 652. This uncertainty under-
mined honesty in sentencing because in most cases offenders did
not serve their actual sentences. See Breyer, supra at 4. They in-
stead served until the Parole Commission decided they had been
rehabilitated and could be released. See id.
Given its concerns about indeterminate sentencing under
the medical model, Congress replaced the medical model with a
determinate and presumably fairer sentencing system. Scroggins,
880 F.2d at 1208; United States v. Rolande-Gabriel, 938 F.2d 1231,
1235 (11th Cir. 1991) (“Congress sought reasonable uniformity in
sentencing by narrowing the wide disparity in sentences imposed
for similar criminal offenses committed by similar offenders. [Con-
gress also] sought proportionality in sentencing through a system
that imposes appropriately different sentences for criminal conduct
of differing severity.”) (quoting U.S.S.G., Ch. 1, Pt. A, at 1.2 (1990)).
As part of sentencing reform, Congress abolished the United States
Parole Commission and the system of parole. See Scroggins, 880
F.2d at 1208. To ensure that courts did not sentence defendants to
prison for the purpose of rehabilitation, Congress instructed that
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16 Opinion of the Court 21-12963
“imprisonment is not an appropriate means of promoting correc-
tion and rehabilitation.” 18 U.S.C. § 3582(a). Congress likewise in-
structed the Sentencing Commission to “insure that the guidelines
reflect the inappropriateness of imposing a sentence to a term of
imprisonment for the purpose of rehabilitating the defendant.” 28
U.S.C. § 994(k).
D.
With this background in hand, we consider the District
Court’s statement at sentencing—that King “need[ed] at least a 24-
month term of imprisonment to have a chance at [participating in]
the intensive residential substance abuse treatment program” the
Bureau of Prisons provided. Vandergrift, applying Tapia, pre-
cluded the District Court from sentencing King to prison for the
purpose of rehabilitation. Although the statute under which the
District Court was proceeding, 18 U.S.C. § 3583(e)(3), instructs the
district courts to consider 18 U.S.C. § 3553(a)(2)(D) (rehabilitation)
in deciding whether to revoke a supervised release, in Vandergrift,
we extended Tapia and decided that, when revoking supervised re-
lease, courts cannot “consider[] rehabilitation when crafting [a de-
fendant’s] sentence of imprisonment.”4 Id. at 1311. In Vandergrift,
the District Court, throughout the sentencing hearing, emphasized
4 Sentencing courts can still “consider an offender’s need for rehabilitation in
prescribing the conditions of probation or supervised release.” Scroggins, 880
F.2d at 1208 n.10.
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21-12963 Opinion of the Court 17
the defendant’s need for rehabilitation in prison and then listed “the
benefit of the defendant” as one of several factors it considered
when fashioning his sentence. Id. at 1306, 1311. We likewise held
in Alberts that the District Court improperly considered rehabilita-
tion when it told the defendant, “[y]our pattern of behavior over
the years demonstrates to me you do pose a danger to the commu-
nity and you need a period of time where you can receive the treat-
ment that you should have.” 859 F.3d at 982, 986 (alteration in
original). The Court then discussed mitigating factors and imposed
the sentence. Id. at 982.
Yet in Vandergrift, we also emphasized that courts can dis-
cuss with defendants the rehabilitation programs that are available
in prison. 754 F.3d at 1311 (citing Tapia, 564 U.S. at 334, 131 S. Ct.
at 2392). Discussing the substance abuse treatment programs that
the Bureau of Prisons (the “BOP”) provides accords with Con-
gress’s expectations. Courts cannot be oblivious to Congress’s
mandates that the BOP “shall make available appropriate substance
abuse treatment for each prisoner the [BOP] determines has a treat-
able condition of substance addiction or abuse,” and “shall . . . pro-
vide residential substance abuse treatment . . . for all eligible pris-
oners.” 18 U.S.C. § 3621(b), (e)(1), (e)(1)(C). In addition, “a court
may ‘make a recommendation concerning the type of prison facil-
ity appropriate for the defendant’; and in this calculus, the presence
of a rehabilitation program may make one facility more appropri-
ate than another.” Tapia, 564 U.S. at 334, 131 S. Ct. at 2392
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18 Opinion of the Court 21-12963
(quoting 18 U.S.C. § 3582(a)). 5 So, courts can and should think
about and discuss substance abuse treatment programs with de-
fendants who have a substance abuse problem. All courts cannot
do is consider rehabilitation as a purpose of a prison term.
In Vandergrift, to illustrate how courts can properly discuss
rehabilitation, we cited United States v. Lucas, 670 F.3d 784 (7th
Cir. 2012). See Vandergrift, 754 F.3d at 1311. In Lucas, the Seventh
Circuit held that the District Court committed no Tapia error
when it “briefly mentioned rehabilitative programs” as a benefit
that the prison sentence would provide. 670 F.3d at 795. After im-
posing a 210-month prison sentence, the court said the “sentence
[would] serve to hold the defendant accountable, serve as a deter-
rent, protect the community, provide the opportunity for
5 Congress created a mandate that the BOP provide prisoners with substance
abuse treatment in the Crime Control Act of 1990. Pub. L. No. 101-647,
§ 2903, 104 Stat. 4789, 4913 (1990) (codified as amended at § 3621(b)). It also
added § 3621(e) in 1994 to mandate that the BOP make residential substance
abuse treatment available for all prisoners with documented substance abuse
issues and to guide the incentives for completion of that program. Pub. L. No.
103-322, § 32001, 108 Stat. 1796, 1896–97 (1994) (codified at 18 U.S.C.
§ 3621(e)). Congress had already passed the SRA, which prohibits basing a
prison sentence on rehabilitation, in 1984. Pub. L. No. 98-473, § 212, 98 Stat.
1987, 1998 (1984) (codified as amended at 18 U.S.C. § 3582(a)). So, Congress
already knew when it amended § 3621 that courts could not sentence defend-
ants to prison for the purpose of promoting rehabilitation. But it presumably
expected courts to take notice of its mandate to the BOP to provide substance
abuse treatment.
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21-12963 Opinion of the Court 19
rehabilitative programs and achieve parity with sentences of simi-
larly-situated offenders.” Id.
Accordingly, a court only errs under Tapia or Vandergrift
when it actually imposes or extends a prison sentence for the pur-
pose of promoting rehabilitation. A court cannot consider rehabil-
itation as a purpose—even as one among many—of a prison term.
Vandergrift, 754 F.3d at 1311. But merely discussing how defend-
ants would benefit from substance abuse treatment programs that
the BOP offers does not violate Tapia or Vandergrift. Rather,
courts do “something very right” in trying to get defendants into
appropriate substance abuse treatment programs. Tapia, 564 U.S.
at 334, 131 S. Ct. 2392.
Here, the District Court only mentioned a substance abuse
treatment program after it announced a prison term that it said
would serve valid sentencing purposes. During the revocation
hearing, the parties and the Court focused on King’s repeated vio-
lations of the law and the terms of his supervised release, how the
Court had treated King leniently in the past, and whether the 36-
month sentence the Probation Office recommended was reasona-
ble. 6 The Court emphasized King’s repeated drug use and failures
6 After focusing on the need to protect the public from King and King from
himself given his drug use and violations of the terms of his supervised release,
the Government stated that King “need[ed] a lengthy sentence with treatment
to hopefully get beyond his addiction.” That statement likely reflected the
Government’s hope that King would be placed in a facility that offered resi-
dential substance abuse treatment, not that the purpose of the sentence should
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20 Opinion of the Court 21-12963
to attend substance abuse treatment sessions, both of which vio-
lated the terms of his supervised release.
The Court then stated it needed “to protect society, and, in
doing that,” protect King from himself, and announced it would
impose a 36-month prison term. Public safety and specific deter-
rence are valid considerations under § 3553(a)(2)(C), which in-
structs courts to consider deterring “further crimes of the defend-
ant” in order “to protect the public.”
The District Court then referenced substance abuse treat-
ment. The Court stated, “you need at least a 24-month term of
imprisonment to have a chance at the intensive residential sub-
stance abuse treatment program,” which it would recommend for
King. The Court presumably referred to the Residential Drug
Abuse Treatment Program (the “RDAP”). Under BOP policy, an
inmate must ordinarily have at least 24 months remaining on his
sentence to participate in the RDAP. See BOP Program Statement
No. P5330.11 CN-1, § 2.5.1(d) (April 25, 2016) (“BOP Program
Statement”). 7 The Court also recommended to the BOP that King
be to promote rehabilitation. The Government did not argue that a 36-month
sentence was necessary to make King eligible for the Residential Drug Abuse
Treatment Program—which would have only required a 24-month sen-
tence—or otherwise argue for a prison term based on rehabilitation.
7 The residential program must include at least a 6-month period of “individ-
ual and group activities and treatment” during which participants live “in res-
idential treatment facilities [in the prison] set apart from the general prison
population.” § 3621(e)(5)(A). Under BOP policy, the portion of the RDAP
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21-12963 Opinion of the Court 21
“be imprisoned at an institution where substance abuse treatment
programs are available.”
Taken literally, the District Court’s statement about the
RDAP—which it made right after announcing the sentence—sug-
gests that the Court considered rehabilitation as a purpose for or-
dering King to be incarcerated. See Alberts, 859 F.3d at 985–86.
But context indicates that the Court did not impose the sentence
for the purpose of rehabilitation. The Court evidently decided a
36-month prison sentence was necessary to protect the public from
King. See § 3553(a)(2)(C). The District Court thus presumably
found that a 36-month prison sentence was “sufficient, but not
during which participants live in separate housing for the program—the “unit-
based” component—lasts between 9 and 12 months and is 500 hours long. See
BOP Program Statement, § 2.5.1, 2.5.10. The program also contains a manda-
tory community treatment component during which participants are typically
placed in residential reentry centers. See id. § 2.5.1 (quoting 28 C.F.R.
§ 550.53(a)(3)–(b)(3)). In between the unit-based component and the commu-
nity treatment component, “[if] time allows,” Residential Drug Abuse Treat-
ment Program participants “participate in the follow-up services to the unit-
based component of the RDAP.” 28 C.F.R. § 550.53(a)(2). Follow-up services
involve monthly sessions that must last at least an hour each, and participants
live among the general prison population. See BOP Program Statement, § 2.6.
The BOP has presumably decided that inmates ordinarily need 24 months to
complete the program.
An inmate “convicted of a nonviolent offense” who completes the
RDAP can also obtain an early release of up to one year. § 3621(e)(2)(B). 28
C.F.R. § 550.55 covers the eligibility criteria for early release, including exclu-
sions for inmates with current or prior convictions for certain crimes.
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22 Opinion of the Court 21-12963
greater than necessary” to promote that purpose. § 3553(a)(2)(C).
So, making King eligible for the RDAP—which only required a 24-
month sentence—was likely not a purpose the Court considered
when “crafting” or “lengthening” King’s sentence. Vandergrift,
754 F.3d at 1310–11.
Instead, the District Court may very well have decided on a
36-month sentence based on public safety and specific deterrence,
and only after announcing that sentence noted that King would be
eligible for the RDAP and that it was recommending the program.
Moreover, just because the District Court noted that the sentence
would make King eligible for the RDAP does not mean that it im-
posed the sentence for the purpose of rehabilitating King. In Lu-
cas—the Seventh Circuit case Vandergrift cited as an example of a
district court discussing treatment programs properly—the District
Court had listed rehabilitation opportunities as one of several ben-
efits the prison sentence would provide. See Lucas, 670 F.3d at 795.
Yet the Lucas Court found no Tapia error.
It is likewise not obvious here that the District Court did
more than merely tell King that the sentence would provide an op-
portunity for rehabilitation. If that is all the Court did, it provided
nothing like the medical model sentencing Congress had in mind
when it proscribed consideration of rehabilitation in crafting prison
sentences. The Court instead followed federal sentencing policy
and sentenced King to a prison term based on its findings about the
need to protect the public. Further, it was appropriately aware that
King would benefit from substance abuse treatment while in prison
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21-12963 Opinion of the Court 23
given Congress’s mandates to the BOP under § 3621, and it exer-
cised its discretion to recommend that the BOP place King in a fa-
cility that offers treatment programs.
All told, whether the District Court considered rehabilita-
tion as a purpose driving its decision to incarcerate King is unclear
from the record. The Court therefore did not plainly err.
Further, even if the District Court erred, any such error did
not harm King’s substantial rights. As discussed above, the record
shows the District Court’s primary considerations in sentencing
King were public safety and specific deterrence, which fall squarely
under § 3553(a)(2)(C). The record thus strongly indicates the
Court would have imposed the 36-month prison sentence without
any consideration of the RDAP. So, any Vandergrift error did not
affect King’s substantial rights. Cf. Vandergrift, 754 F.3d at 1312(finding consideration of rehabilitation did not harm the defend-
ant’s substantial rights when “the court’s primary considerations”
included “the safety of the public,” the defendant’s continued pos-
session of illicit materials while on supervised release, and general
deterrence, § 3553(a)(2)(B)); Alberts, 859 F.3d at 986 (finding a
Tapia error did not harm a defendant’s substantial rights when the
court’s primary considerations included the seriousness of the of-
fense, specific deterrence, and public safety).
* * *
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24 Opinion of the Court 21-12963
The District Court did not abuse its discretion in sentencing
King. King forfeited the Tapia issue, and regardless, any Tapia er-
ror fails at prongs two and three of plain error review.
AFFIRMED.
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21-12963 Rosenbaum, J., Dissenting 1
ROSENBAUM, Circuit Judge, dissenting:
I respectfully dissent because, in my view, the district court’s
consideration of rehabilitation substantially underlaid its decision
to impose a 36-month term of imprisonment. That violated Tapia
v. United States, 564 U.S. 319, 334-35, 131 S. Ct. 2382, 2393 (2011)
(“[T]he court may have calculated the length of Tapia’s sentence
to ensure that she receives certain rehabilitative services. And that
a sentencing court may not do.”), and our own precedent, United
States v. Vandergrift, 754 F.3d 1303, 1311 (11th Cir. 2014) (“Here
the district court did exactly what Tapia and our precedent instruct
district courts not to do—it considered rehabilitation when crafting
Vandergrift’s sentence of imprisonment.”).
True, King did not raise this issue expressly. But he chal-
lenged the substantive reasonableness of his sentence. And in eval-
uating that, we must consider the district court’s reasoning for the
sentence it imposed. As the majority opinion notes, the district
court abuses its discretion when it “(1) fails to afford consideration
to relevant factors that were due significant weight, (2) gives signif-
icant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quo-
tation marks omitted) (emphasis added).
Here, the district court gave significant weight to rehabilita-
tion as a factor. Indeed, both the probation officer and the
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2 Rosenbaum, J., Dissenting 21-12963
government incorrectly urged the district court to do so. But as
I’ve noted, considering rehabilitation in imposing the sentence was
plain error under both Supreme Court and our precedent. For that
reason, I would vacate the sentence and remand for resentencing
without consideration of rehabilitation.