United States v. Carlos Galvan Escobar , 872 F.3d 316 ( 2017 )

Case: 16-51069 Document: 00514172535 Page: 1 Date Filed: 09/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51069 FILED
September 27, 2017
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
CARLOS GERARDO GALVAN ESCOBAR, also known as Carlos Galvan,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Carlos Gerardo Galvan Escobar pleaded guilty to unlawful reentry
following removal. See 8 U.S.C. § 1326(a). At sentencing, he argued that his
mental health and drug abuse issues warranted leniency. The district court
agreed. So it announced a below-Guidelines sentence. Escobar responded that
he might not be eligible for mental health or drug abuse treatment programs
in prison. The court again agreed. It therefore expressed hope Galvan Escobar
could get help—and even recommended treatment—but conceded the sentence
might be too brief for him to join a prison rehabilitation program. Galvan
Escobar now argues on appeal that the district court, by doing what he asked
and knowingly imposing a sentence likely too short for rehab, improperly
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imposed or lengthened the sentence to promote rehab. See Tapia v. United
States, 564 U.S. 319 (2011). We AFFIRM.
I.
Galvan Escobar, a citizen of Mexico, pleaded guilty to one count of
violating 8 U.S.C. § 1326(a), which generally makes it unlawful for a non-
citizen previously deported or removed from the United States to enter or be
found in the country without the Attorney General’s consent. Because he had
several prior convictions, Galvan Escobar’s Guidelines range was 37 to 46
months’ imprisonment.
At sentencing, defense counsel urged the district court to impose a below-
Guidelines sentence because Galvan Escobar had grown up in the United
States and suffered from mental health and substance abuse issues.
Specifically, counsel argued that the Guidelines range was “excessive, given
his history, given his mental health,” and thus asked the sentencing court to
“consider imposing a sentence below the guideline range in this case . . . with
that in mind.” During allocution, Galvan Escobar conveyed his plan not to
return to the United States and to work instead at a resort in Mazatlán. He
closed by saying, “I need to make my mental state stable, so I’m going to try to
find medication, that way I don’t have to self-medicate and just—I ask for your
mercy, Your Honor.”
The government stuck to the Guidelines, urging the district court to
impose a 40- to 42-month sentence. The government acknowledged this case
involved “sympathetic elements,” and that Galvan Escobar did have “mental”
and “substance abuse issues” that needed considering. But the prosecutor
asserted that Galvan Escobar’s “extensive” criminal history “cannot be
ignored,” and thus suggested the district court “combine” Galvan Escobar’s
“criminal history with those other issues that he has and the rehabilitative
nature that [the government] hope[s] is in the sentence that the Court imposes
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. . . .” The government then observed, “He does need time to go through a
treatment program. He just said himself that he needs time to address those
issues. He needs that time, but he also needs time—he needs to be held
accountable for his actions for his criminal conduct[.]”
After hearing both sides, the district court revealed that its “prehearing
feel” for the appropriate sentence was 40 months’ imprisonment. But the
district court then disclosed that, given defense counsel’s oral argument,
“perhaps the 40 months is a little more than [Galvan Escobar] deserves.” The
court concluded that it was “hard to overlook his criminal history and so that’s
persuasive,” but noted that defense counsel was “persuasive in what [counsel]
said for [Galvan Escobar] today as well.” “[B]alancing those,” the court
explained, “I think that a sentence just below the [G]uideline would be one that
I would feel more comfortable with and that’s 36 months, which is just a month
below the [G]uidelines[.]”
After the district court announced Galvan Escobar’s below-Guidelines
sentence, defense counsel added,
As to the mental health question, . . . I would ask the Court to
consider in that regard, in these situations with the immigration
cases, they don’t necessarily get that treatment, and oftentimes we
have clients that have gone through this process and by virtue of
their history was denied that, so if that does weigh in the Court’s
consideration in terms of whether this treatment would be
available or not, I don’t think there’s any guarantees he would see
that at our institutions. So with that, Your Honor, if that does—if
that is sort of in the calculus, I would ask the Court to consider
that may not necessarily happen and obviously it’s not within the
Court’s control in the end.
The district court responded,
Certainly, I would hope he gets that treatment, but I guess I do my
part over here and hope that everybody else does their part and
hope that he gets the mental health treatment that he needs, as
well as the drug treatment if that’s available, that he be screened
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for any addiction for severity of addiction and found to have a
sufficiently severe drug addiction at the time that he participate
in the RDAP 1 program. I’m not sure if he’ll have enough time for
36 months, but that’ll be the Court’s request.
Defense counsel then objected “to the sentence imposed as unreasonable
given the reasons set forth in the allocution,” but neither raised Tapia nor
asserted that the district court had improperly imposed or lengthened the
sentence to promote rehabilitation.
The district court later issued its written Judgment, recommending that
the Bureau of Prisons (BOP) either admit Galvan Escobar to a 500-hour
comprehensive drug abuse treatment program or provide him the benefits of
drug abuse treatment programs. The district court also issued a Statement of
Reasons, explaining that Galvan Escobar’s history and characteristics justified
a slight downward variance from the Guidelines. See 18 U.S.C. § 3553(a)(1).
The district court further recorded that the variance was “pursuant to the
defendant’s past mental health issues, because defendant resided in the United
States from the age of 4 years to 18 years, and for the reasons stated on the
record.” Galvan Escobar filed his appeal the next day. He now invokes the
Supreme Court’s Tapia decision to challenge his sentence.
II.
Galvan Escobar’s objection to the sentence as “unreasonable given the
reasons set forth in the allocution,” did not preserve his Tapia argument.
United States v. Culbertson, 712 F.3d 235, 243 (5th Cir. 2013). We therefore
review for plain error. Id. 2
1 RDAP stands for the Residential Drug Abuse Treatment Program. See, e.g., 18
U.S.C. § 3621(e); Tapia, 564 U.S. at 321–22.
2 Galvan Escobar arguably invited the alleged error he now challenges, as he first
raised and emphasized his mental health and drug abuse history in the sentencing hearing.
But neither party flagged this issue. We are wary of tilting at windmills, so we take the
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Under the plain error standard, “when there was (1) an error below, that
was (2) clear and obvious, and that (3) affected the defendant’s substantial
rights, a court of appeals has the discretion to correct it but no obligation to do
so.” United States v. Scott, 821 F.3d 562, 570 (5th Cir. 2016) (alterations and
quotation marks omitted). To determine if an error is “clear and obvious,” we
“look to the state of the law at the time of appeal” and “decide whether
controlling circuit or Supreme Court precedent has reached the issue in
question, or whether the legal question would be subject to reasonable
dispute.” Id. at 570–71 (quotation marks omitted). In the sentencing context,
a defendant shows an error affected substantial rights if “the error increased
the term of a sentence, such that there is a reasonable probability of a lower
sentence on remand.” United States v. Escalante-Reyes, 689 F.3d 415, 424 (5th
Cir. 2012) (en banc) (quotation marks omitted). If the first three prongs are
satisfied, we remedy the error “only if it seriously affected the fairness,
integrity or public reputation of the judicial proceedings.” Scott, 821 F.3d at
571 (quotation marks omitted).
III.
Galvan Escobar posits that the district court violated 18 U.S.C. §
3582(a) 3 and Tapia v. United States, which prohibit a sentencing court from
“impos[ing] or lengthen[ing] a prison sentence to enable an offender to
cautious approach and review for plain error. See United States v. Fernandez-Cusco, 447 F.3d
382, 384 (5th Cir. 2006).
3 As relevant here, § 3582(a) reads:
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 [18 U.S.C. §] 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).
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complete a treatment program or otherwise to promote rehabilitation.” 564
U.S. at 335. We disagree.
Our caselaw applying § 3582(a) and Tapia holds that “a sentencing court
errs if a defendant’s rehabilitative needs are a dominant factor that informs
the district court’s sentencing decision.” United States v. Pillault, 783 F.3d 282,
290 (5th Cir. 2015) (alterations and quotation marks omitted). If Galvan
Escobar’s rehabilitative needs were indeed a dominant factor in the district
court’s decision, then he is entitled to resentencing; if not, then not. Of course,
a sentencing court does not defy Tapia if the defendant’s need for rehabilitation
is merely a “secondary concern” or an “additional justification” for imposing or
lengthening a sentence. Id. (quotation marks omitted). And “[a] court commits
no error by discussing the opportunities for rehabilitation within prison or the
benefits of specific treatment or training programs.” Tapia, 564 U.S. at 334.
So, too, may a court “urge the BOP to place an offender in a prison treatment
program.” Id.
The district court did not err, let alone plainly err. The court neither
“impose[d]” nor “lengthen[ed]” Galvan Escobar’s sentence to “enable” or
“promote” his rehabilitation. See id. at 335. Quite the opposite: the district
court abbreviated the sentence based on Galvan Escobar’s history and
characteristics. See 18 U.S.C. § 3553(a)(1). The court even acknowledged the
prison term might be too short for treatment. Galvan Escobar’s need for
rehabilitation, then, could not have been a “dominant factor” informing the
sentencing decision. Pillault, 783 F.3d at 290.
Indeed, Galvan Escobar raised his mental health and drug abuse
issues—as well as his childhood in the United States—as grounds for imposing
less time. That argument worked. After the government stressed that Galvan
Escobar’s criminal history warranted a Guidelines sentence, the district court
remarked that its “prehearing feel” for the proper prison term was “a little
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more than [Galvan Escobar] deserves.” So the court varied downward,
balancing Galvan Escobar’s criminal history with defense counsel’s
“persuasive” arguments that Galvan Escobar’s other history and
characteristics justified a downward variance. The district court treated
Galvan Escobar’s mental health and drug abuse history not as reasons to
imprison, but as keys to a quicker release. Cf. Tapia, 564 U.S. at 334 (finding
error where the sentencing court “may have selected the length of the sentence
to ensure that [the defendant] could complete the [RDAP] program” (emphasis
added)).
Nor did the district court’s subsequent Statement of Reasons offend
Tapia. True, the district court specified that the sentence was “pursuant to the
defendant’s past mental health issues, because defendant resided in the United
States from the age of 4 years to 18 years, and for the reasons stated on the
record.” But again, those reasons justified the court’s choice to accept Galvan
Escobar’s argument for leniency, not to enable or promote rehabilitation.
Galvan Escobar is also incorrect to assert that the government’s
argument at sentencing—that he “need[s] time to go through a treatment
program”—reveals a Tapia error. Though the government probably should not
have waded into those waters, Galvan Escobar’s rehabilitative needs were but
a “secondary concern” to the district court. Pillault, 783 F.3d at 290. In fact,
when defense counsel warned the court that Galvan Escobar might not get
rehabilitative treatment in prison, the court recognized 36 months could be too
few to participate in a rehab program. But instead of imposing more time for
rehab, the district court appropriately stated it “hope[d]” Galvan Escobar could
get help in prison and therefore requested the BOP provide it. Those comments
do not flout Tapia; the Tapia opinion itself confirmed that “a court may urge
the BOP to place an offender in a prison treatment program.” 564 U.S. at 334.
And we have declined to find Tapia error where, as here, “the district court
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merely advises the defendant of rehabilitative opportunities or expresses its
hope that the defendant will take advantage of such rehabilitative
programming while imprisoned.” United States v. Wooley, 740 F.3d 359, 365
(5th Cir. 2014). The trial court’s statements dispel any notion that it staked
the sentence on enabling or promoting rehabilitation.
Thus, this case differs from the three decisions on which Galvan Escobar
relies. In those cases, trial courts imposed above-Guidelines sentences and
explicitly mentioned the defendants’ rehabilitative or treatment needs as
important to the sentencing decisions. See Wooley, 740 F.3d at 360, 369–70
(three- to nine-months Guidelines range; thirty-month sentence based in part
on getting the defendant help for a cocaine problem); Culbertson, 712 F.3d at
237–38, 244–45 (five- to eleven-months Guidelines range; thirty-month
sentence based in part on giving the defendant “a period of time where [he]
can, once again, get clean and sober and stay clean and sober”); United States
v. Broussard, 669 F.3d 537, 543, 552 (5th Cir. 2012) (120-month Guidelines
recommendation; 480-month sentence based in part on a “compelling . . . need
to incarcerate th[e defendant] for the treatment he needs”). Neither condition
applies here.
To be sure, the district court’s downward variance from the Guidelines
is not dispositive. In Escalante-Reyes, we found plain error under Tapia where
the district court “gave a slightly-below Guidelines sentence.” 689 F.3d at 425.
But that case, too, is factually inapposite. There, “the circumstances show[ed]
a probability that the court’s mercy was . . . ‘tempered’ by the desire to have
[the defendant] receive anger management training.” Id. Here, the
circumstances show the district court’s mercy was spurred (not tempered) by
Galvan Escobar’s childhood and mental health and drug abuse history (not a
desire to get him treatment).
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In any event, Galvan Escobar failed to meet the third plain-error prong—
an error affecting his “substantial rights”—as we see no “reasonable
probability of a lower sentence on remand.” Id. at 419, 424. This is because the
district court tipped its hand: before Galvan Escobar’s arguments at
sentencing, the court thought a 40-month prison term proper. After arguments,
the court imposed 36 months. The difference stems in large measure from
Galvan Escobar’s “persuasive” arguments.
IV.
The district court did not violate Tapia. We therefore AFFIRM.
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