United States v. Paul Himes, Jr. , 439 F. App'x 272 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4334
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL G. HIMES, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:09-cr-00020-REM-JSK-1)
Submitted: June 30, 2011 Decided: July 21, 2011
Before GREGORY, WYNN and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for
Appellant. Betsy C. Jividen, United States Attorney, Stephen D.
Warner, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul G. Himes, Jr. appeals his 34-month sentence
imposed after pleading guilty to one count of possession of a
stolen firearm in violation of 18 U.S.C. §§ 922(j) and
924(a)(2). Himes contends that the district court erred when it
considered the promotion of rehabilitation in sentencing him to
a term of imprisonment. The Supreme Court recently held in
Tapia v. United States, 131 S. Ct. 2382 (2011), that a court may
not impose or lengthen a prison sentence to promote
rehabilitation. Accordingly, we vacate the district court’s
judgment and remand for resentencing consistent with Tapia.
I.
A federal grand jury indicted Himes on four counts of
possession of a stolen firearm in violation of 18 U.S.C. §§
922(j) and 924(a)(2). According to the indictment, Himes stole
the firearms while working as a seasonal employee at a UPS
distribution center in West Virginia. Himes subsequently
executed a written plea agreement and entered a plea of guilty
to count one of the indictment.
At sentencing, the district court calculated Himes’s
advisory sentence range under the United States Sentencing
Guidelines as 21 to 27 months’ imprisonment. Himes argued that
the district court should vary downward from the Guidelines
2
range or, at least, impose a sentence at the low end of the
range. In response, the government suggested a sentence of more
than 30 months so that Himes would be eligible for the Bureau of
Prisons Residential Drug Abuse Program (“RDAP”). The government
had previously raised this issue in its sentencing memorandum,
explaining that Himes would require a sentence greater than 30
months to ensure his eligibility for the RDAP.
The district court agreed with the government and
sentenced Himes to 34 months in prison. The court explained its
decision to vary upward from the Guidelines range as follows:
I have increased the sentence to 34 months so that
after the time served and the time it takes to
designate a facility, that Mr. Himes will have 30
months or so remaining on his sentence. I think the
most important thing for this young man’s life is that
he deal with and conquer his drug problem and I think
that the only way this Court sees to accomplish that
end, is for him to participate in the 500 hour
residential drug abuse treatment program and that will
provide enough time for him to be admitted to the
program and complete that program.
J.A. 56–57. The district court stated explicitly that it
selected the length of Himes’s sentence “based upon Defendant’s
need for the RDAP program.” Id. 57.
Himes objected to the sentence and timely appealed.
On appeal, Himes contends that the district court violated 18
U.S.C. § 3582(a) by imposing a term of imprisonment to promote
rehabilitation. Specifically, Himes argues that the district
3
court erred when it determined the length of his prison sentence
based on his eligibility for the RDAP.
We placed the matter in abeyance pending the Supreme
Court’s decision in Tapia. In light of the Court’s recent
holding, Himes filed a motion to remand, in which the government
joined, requesting that we vacate the district court’s judgment
and remand for resentencing. For the reasons that follow, we
agree and grant the requested relief.
II.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). First, we “ensure that
the district court committed no significant procedural error.”
Id. Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Id.
“If, and only if, we find the sentence procedurally reasonable
can we ‘consider the substantive reasonableness of the sentence
imposed under an abuse of discretion standard.’ ” United States
v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552
U.S. at 51).
4
Section 3582(a) lists the factors that a district
court should consider when imposing a term of imprisonment. In
relevant part, section 3582(a) states as follows:
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.
18 U.S.C. § 3582(a) (emphasis added).
Historically our sister circuits have split in their
interpretation of § 3582(a). Several circuits have held that §
3582(a) bars courts from considering rehabilitation only when
imposing a term of imprisonment, and not when deciding on its
length. E.g., United States v. Jimenez, 605 F.3d 415, 424 (6th
Cir. 2010); United States v. Duran, 37 F.3d 557, 561 (9th Cir.
1994). Other courts have ruled that § 3582(a) bars a court from
either imposing or increasing a term of imprisonment to promote
rehabilitation. E.g., United States v. Manzella, 475 F.3d 152,
160–61 (3d Cir. 2007).
In Tapia, the Supreme Court resolved the split and
ruled that “a court may not impose or lengthen a prison sentence
to enable an offender to complete a treatment program or
otherwise to promote rehabilitation.” Tapia, 131 S. Ct. at
2393. In Tapia, the sentencing court noted that the defendant
5
should serve a prison sentence long enough to qualify for the
RDAP. Id. at 2385. Specifically, the district court stated:
The sentence has to be sufficient to provide needed
correctional treatment, and here I think the needed
correctional treatment is the 500 Hour Drug
Program. . . . I am going to impose a 51-month
sentence, . . . and one of the factors that affects
this is the need to provide treatment. In other
words, so she is in long enough to get the 500 Hour
Drug Program, number one.
Id. The Supreme Court held that the district court’s
consideration of eligibility for the RDAP violated the
prohibition in § 3582(a) on considering rehabilitation when
deciding whether to impose or lengthen a term of imprisonment.
Id. at 2393.
In this case, as in Tapia, the district court erred by
considering Himes’s need for rehabilitation when it imposed a
term of imprisonment. The district court focused on the need
for a prison sentence of sufficient length to ensure Himes’s
eligibility for the RDAP and selected a sentence above the
Guidelines range to accomplish that purpose. It is clear after
Tapia that § 3582(a) prohibits such a consideration.
Furthermore, based on our review of the record, we
have no trouble finding that the district court’s concern for
promoting Himes’s rehabilitation was the primary, if not the
sole, basis for the 34-month term of imprisonment. The
government argued both prior to and during sentencing that the
6
district court should impose a sentence of at least 30 months to
ensure Himes’s eligibility for the RDAP. During the sentencing
hearing, the district court focused on Himes’s need for the RDAP
in calculating its upward variance sentence. Finally, the
district court made clear that rehabilitation was central to its
decision when it concluded, “So based upon Defendant’s need for
the RDAP program, I have imposed the sentence.” J.A. 57.
Because it is now clear that § 3582(a) “precludes
federal courts from imposing or lengthening a prison term in
order to promote a criminal defendant’s rehabilitation[,]”
Tapia, 131 S. Ct. at 2385, we vacate the judgment of the
district court and remand for a new sentencing hearing. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
7