United States v. James Bennett, Jr. , 698 F.3d 194 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4401
JAMES BERNARD BENNETT, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, District Judge.
(5:05-cr-00010-D-1; 5:08-cr-00068-D-1)
Argued: September 19, 2012
Decided: October 25, 2012
Before WILKINSON and THACKER, Circuit Judges,
and Michael F. URBANSKI, United States District Judge
for the Western District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Thacker and Judge Urbanski joined.
COUNSEL
ARGUED: James Edward Todd, Jr., OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
2 UNITED STATES v. BENNETT
Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
WILKINSON, Circuit Judge:
In Tapia v. United States, the Supreme Court held that the
Sentencing Reform Act of 1984 does not permit federal courts
to consider a defendant’s rehabilitative needs when imposing
a prison sentence or determining the length thereof. 131 S. Ct.
2382 (2011). This case presents the question whether Tapia
applies in the context of resentencing on the revocation of
supervised release. We hold that it does. Here, however, the
transcript of the revocation hearing makes plain that the
"egregious breach of trust" committed by the defendant in
repeatedly violating the conditions of supervised release—
rather than any rehabilitation rationale—drove the sentencing
decision. We see no reason to direct a remand that would
serve no purpose, and we accordingly affirm the judgment of
the district court.
I.
The U.S. District Court for the Eastern District of North
Carolina convicted defendant James Bernard Bennett, Jr., of
being a felon in possession of a firearm under 18 U.S.C.
§§ 922(g)(1) and 924 (the "first federal conviction"). On Janu-
UNITED STATES v. BENNETT 3
ary 10, 2006, he was sentenced to fifty months of imprison-
ment followed by thirty-six months of supervised release.
During the ensuing prison term, Bennett absconded from a
halfway house. He was convicted of escape in violation of 18
U.S.C. § 751(a) (the "second federal conviction") and sen-
tenced on March 11, 2009, to seventeen months in prison, to
run consecutively with the sentence for his first federal con-
viction, as well as thirty-six months of supervised release, to
run concurrently with the supervised release associated with
his first federal conviction.
Bennett’s supervised release on both convictions began on
July 28, 2009. His probation officer filed a motion for revoca-
tion on October 1, 2009, and amended it on January 24, 2011,
setting forth two grounds for revocation (as well as an addi-
tional ground that the government later withdrew). First, in
September 2009, Bennett was arrested and charged with rob-
bery with a dangerous weapon and possession of a firearm by
a felon. He pleaded guilty in state court in January 2011 to
conspiracy to commit common law robbery (the "state con-
viction") and was sentenced to eleven to fourteen months in
custody, with credit for 450 days served. Second, Bennett
tested positive for cocaine use on three occasions during Sep-
tember 2009.
The district court held a revocation hearing on April 5,
2011. Bennett admitted the conduct underlying the motion for
revocation. The court found the imprisonment range sug-
gested by the Sentencing Guidelines to be eighteen to twenty-
four months on the revocation of the term of supervised
release associated with the first federal conviction (for being
a felon in possession of a firearm) and twenty-four months on
the revocation of the term of supervised release associated
with the second federal conviction (for escape).
The defense asked for an eighteen-month sentence on each
of the two revocations, to run concurrently. Defense counsel
cited Bennett’s responsibilities as a father of four children, his
4 UNITED STATES v. BENNETT
relative youth (at age twenty-six), his family support, and the
fact that he had recently attempted—albeit unsuccessfully—to
get a GED and a job. He also emphasized that Bennett had
already spent fourteen months in custody on the state convic-
tion. The government, by contrast, urged the court to impose
the maximum punishment on each revocation and to run the
sentences consecutively. The government drew support from
the fact that Bennett had received a downward departure on
the initial sentence for his first federal conviction and argued
that, by engaging in criminal acts so soon after leaving prison,
Bennett showed that he "has not learned his lesson and appar-
ently has no regard for the rights of others and does not hesi-
tate to engage in violent behavior even after serving a federal
sentence."
The district court sentenced Bennett to twenty-four months
in prison on each revocation, with the sentences to run con-
secutively (for a total of forty-eight months). The court began
its explanation by declaring that "the focus of a revocation
proceeding is the breach of trust associated with being on
supervised release and then continuing to engage in criminal
behavior"—a theme to which the judge repeatedly returned.
The court also stated that "it’s clear that [Bennett], based on
his positive cocaine tests, needs intensive substance abuse
treatment. So, the court will impose a sentence that provides
ample time for that." And when imposing the sentence on the
second revocation, the judge noted that the sentence was
meant to "reflect the serious nature of the breach of trust, to
provide ample time for substance abuse treatment." The court
also recommended that Bennett "receive intensive substance
abuse treatment" in prison.
II.
A.
Bennett argues that the district court’s invocation of his
need for substance abuse treatment in explaining his sentence
UNITED STATES v. BENNETT 5
constitutes reversible error under Tapia v. United States, 131
S. Ct. 2382 (2011). The Sentencing Reform Act of 1984 gen-
erally instructs courts to consider a number of factors when
imposing a sentence. See 18 U.S.C. § 3553(a). One of these
factors is "the need for the sentence imposed . . . to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most
effective manner." Id. § 3553(a)(2)(D). At issue in Tapia was
the proper interpretation of 18 U.S.C. § 3582(a), which pro-
vides that
[t]he 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.
Tapia held that this statute "precludes federal courts from
imposing or lengthening a prison term in order to promote a
criminal defendant’s rehabilitation," establishing the rule that
"when sentencing an offender to prison, the court shall con-
sider all the purposes of punishment except rehabilitation—
because imprisonment is not an appropriate means of pursu-
ing that goal." 131 S. Ct. at 2385, 2389.
B.
This court must first decide whether Tapia’s teaching
applies to resentencing on the revocation of supervised release
in addition to the context addressed by Tapia itself, initial
sentencing on a criminal conviction. We think that Tapia does
apply to revocation sentencing.
Most fundamentally, the text of the Sentencing Reform Act
is clear: courts must "recogniz[e] that imprisonment is not an
appropriate means of promoting correction and rehabilita-
6 UNITED STATES v. BENNETT
tion." 18 U.S.C. § 3582(a) (emphasis added). To be sure, the
provision governing the revocation of supervised release does
not include the precise word "imprisonment," instead allow-
ing a court to "require the defendant to serve in prison all or
part of the term of supervised release authorized by statute for
the offense that resulted in such term of supervised release."
Id. § 3583(e)(3) (emphasis added). This, however, strikes us
as a distinction in search of significance. "Imprisonment" is
not some magic word: incarceration constitutes "imprison-
ment" whether imposed upon an initial conviction or upon
revocation of supervised release. Indeed, "imprisonment"
appears elsewhere in § 3583 to denote the latter. See, e.g., id.
§ 3583(g)(4); id. § 3583(h); id. § 3583(i); id. § 3583(k).*
The Supreme Court endorsed this line of reasoning in
Tapia by interpreting "imprisonment" broadly (as encompass-
ing both the initial decision to incarcerate an offender and the
subsequent decision for how long). "‘Imprisonment,’" the
Court specified, "most naturally means ‘[t]he state of being
confined’ or ‘a period of confinement.’" 131 S. Ct. at 2389(quoting Black’s Law Dictionary 825 (9th ed. 2009)). These
capacious definitions obviously encompass incarceration in
the revocation context.
*The First Circuit has described a somewhat different distinction, point-
ing out that § 3583(e) instructs courts to look to a variety of § 3553(a) fac-
tors (including (a)(2)(D)) when taking a variety of actions relating to
supervised release (terminating, extending, revoking, or modifying it) but,
unlike § 3582(a), does not contain an explicit caveat not to consider reha-
bilitation when sentencing someone to prison. See United States v. Molig-
naro, 649 F.3d 1, 3 (1st Cir. 2011). Our result still obtains, however.
Because of the synonymous nature of the relevant terms, a court’s decision
to sentence a defendant to a term "in prison" under § 3583(e)(3) falls
under § 3582(a)’s proscription against considering rehabilitative needs
when imposing "imprisonment." The Tapia Court’s unanimous conclusion
was that where actual incarceration is involved, Congress did not intend
for courts to consider rehabilitation in determining the fact or length of the
sentence. So long as the relevant statute refers to imprisonment, we do not
think that the Court’s view would shift with the context.
UNITED STATES v. BENNETT 7
Moreover, Tapia supports this conclusion not only in lan-
guage but also in logic. Beyond the text of § 3582(a), the
Supreme Court found "[e]qually illuminating" the fact that
"when Congress wanted sentencing courts to take account of
rehabilitative needs, it gave courts the authority to direct
appropriate treatment for offenders"—as in the context of sen-
tencing to probation or to supervised release. Id. at 2390. By
contrast, when Congress did not want courts to consider reha-
bilitative needs, it did not accord them binding power to order
such treatment—as in the context of sentencing to imprison-
ment. If Congress had intended "to allow courts to base prison
terms on offenders’ rehabilitative needs, it would have given
courts the capacity to ensure that offenders participate in
prison correctional programs. . . . That incapacity speaks vol-
umes." Id. at 2390-91. The First Circuit concluded that "[t]he
unanimous Supreme Court’s assessment of the significance of
this fact about judicial authority makes it legally, and not just
factually, pertinent to this case, even though Tapia dealt with
initial sentencing, whereas resentencing [on the revocation of
supervised release] is involved here." United States v. Molig-
naro, 649 F.3d 1, 4 (1st Cir. 2011).
We thus hold that Tapia applies to the revocation context
too.
C.
Several caveats are in order. First, our interpretation of
§ 3582(a) in no way compromises the ability of a district
court to revoke a term of supervised release and imprison the
defendant if the court "finds by a preponderance of the evi-
dence that the defendant violated a condition of supervised
release." 18 U.S.C. § 3583(e)(3). By law, the conditions of
release must include the "explicit" requirements "that the
defendant refrain from any unlawful use of a controlled sub-
stance" and submit to drug testing (unless an exception is
warranted). Id. § 3583(d). Indeed, "[i]f the defendant . . . tests
positive for illegal controlled substances more than 3 times
8 UNITED STATES v. BENNETT
over the course of 1 year," revocation followed by imprison-
ment is mandatory. Id. § 3583(g)(4). Today’s decision does
not—and could not—curtail the authority accorded district
courts by Congress under this statutory scheme.
Second, as relevant to both initial sentencing and revoca-
tion sentencing, we note that—although district courts do not
possess binding authority to order participation in prison pro-
grams, as discussed above—the sentencing judge may make
certain recommendations relevant to a defendant’s rehabilita-
tive needs. As the Supreme Court explained in Tapia:
A court commits no error by discussing the opportu-
nities for rehabilitation within prison or the benefits
of specific treatment or training programs. To the
contrary, a court properly may address a person who
is about to begin a prison term about these important
matters. And . . . a court may urge the [Bureau of
Prisons] to place an offender in a prison treatment
program. Section 3582(a) itself provides . . . that a
court may "make a recommendation concerning the
type of prison facility appropriate for the defendant";
and in this calculus, the presence of a rehabilitation
program may make one facility more appropriate
than another.
131 S. Ct. at 2392. Indeed, by trying to place the defendant
in an effective drug treatment program, the district court in
Tapia "did nothing wrong—and probably something very
right." Id.Tapia thereby drew a line between the consideration of a
defendant’s rehabilitative needs when determining the fact or
length of imprisonment—which is improper—and the consid-
eration of the same when recommending treatment options or
the location of confinement—which is altogether sound. Trial
judges should thus make plain that a defendant’s rehabilitative
needs relate at most to recommended programs or locations—
UNITED STATES v. BENNETT 9
not to the fact or length of imprisonment. By keeping these
distinct concepts distinct, courts will preclude the possibility
of confusion on appeal over whether a Tapia error has
occurred.
III.
A.
Given that Tapia governs this case, we must determine the
appropriate standard of review for assessing whether the dis-
trict court committed reversible error. Our review of the
record makes plain that Bennett did not object at the revoca-
tion hearing on the grounds asserted here (or on any other
grounds, for that matter). This issue, therefore, was not prop-
erly preserved.
Bennett contends that he adequately objected by arguing
toward the start of the hearing—long before the district court
mentioned his rehabilitative needs—that the sentences on the
two revocations should run concurrently. But this argument
was far too general to alert the district court to the specific
reason that Bennett now asserts justifies concurrent sentences
—namely, that § 3582(a) forbids the use of rehabilitative
needs as a determinant for the imposition or length of impris-
onment. The entire purpose of an objection is to alert the dis-
trict court to the actual basis of asserted error. See Fed. R.
Crim. Pro. 51(b) ("A party may preserve a claim of error by
informing the court—when the court ruling or order is made
or sought—of the action the party wishes the court to take, or
the party’s objection to the court’s action and the grounds for
that objection."); United States v. Bostic, 371 F.3d 865, 871
(6th Cir. 2004) ("A party ‘must object with that reasonable
degree of specificity which would have adequately apprised
the trial court of the true basis for [the] objection.’" (quoting
United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.
1980)). The need for some specificity is not a meaningless rit-
ual; rather, a clear objection can enable a trial court to correct
10 UNITED STATES v. BENNETT
possible error in short order and without the need for an
appeal.
By any standard, Bennett’s argument for concurrent sen-
tences did not even approach the point on which he now
grounds his claim. Indeed, when the district court made what
Bennett now contends were erroneous comments about his
rehabilitative needs, his counsel stood silent. We therefore
find that the defendant failed to preserve the objection
asserted here.
B.
Where a defendant fails to preserve his claim, he bears the
burden of establishing (1) that the district court erred; (2) that
the error was "plain"; and (3) that the error "affect[ed his]
substantial rights," meaning that it "affected the outcome of
the district court proceedings." United States v. Olano, 507
U.S. 725, 732, 734 (1993). Even then, this court "retain[s] dis-
cretion to deny relief," and denial is particularly warranted
where it would not "result in a miscarriage of justice." United
States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010).
Under Olano’s first prong, we must determine whether the
district court erred, and in order to make that determination in
the revocation context, this court asks whether the sentence is
"plainly unreasonable." United States v. Crudup, 461 F.3d
433, 437 (4th Cir. 2006). Under this analysis, "we first deter-
mine, using the instructions given in Gall [v. United States,
552 U.S. 38 (2007)], whether a sentence is ‘unreasonable.’"
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008).
Gall, in turn, requires a reviewing court first to "ensure that
the district court committed no significant procedural error."
552 U.S. at 51. If no such error is found, "the appellate court
should then consider the substantive reasonableness of the
sentence imposed." Id. If a sentence is held unreasonable
under Gall, this court proceeds to "decide whether [it] is
UNITED STATES v. BENNETT 11
plainly unreasonable." Finley, 531 F.3d at 294 (quoting
Crudup, 461 F.3d at 439).
In assessing procedural accuracy, Gall stated that a court’s
"fail[ure] to consider the § 3553(a) factors" constitutes "sig-
nificant procedural error." 552 U.S. at 51. It is only logical
that a court’s consideration of an improper § 3553(a) factor is
likewise erroneous. Here, the district court contemplated a
§ 3553(a) factor that it was specifically prohibited from taking
into account by § 3582(a)—Bennett’s rehabilitative needs.
This constitutes a procedural error under Gall.
We shall assume arguendo that the error was plain. See
Henderson v. United States, 80 U.S.L.W. 3699 (U.S. June 25,
2012) (No. 11-9307) (granting certiorari to determine whether
an error is plain where the case law is unsettled at the time of
the district court proceeding but becomes clear during the
appeal). We find, however, that Bennett’s challenge ulti-
mately fails because he has not carried his burden on Olano’s
third prong. For the reasons that follow, Bennett has failed to
show that the district court’s putative Tapia error affected his
substantial rights by influencing the outcome of the sentenc-
ing proceeding.
C.
Our review of the hearing transcript makes clear that it was
the brazen breach of trust inherent in Bennett’s unlawful
actions while on supervised release—and not the rehabilita-
tion rationale proscribed by Tapia—that drove the district
court’s sentencing decision.
The court commenced the sentencing portion of the pro-
ceeding by confirming that Bennett conceded the conduct
underlying both grounds for revocation. As for the first
ground, although Bennett pleaded guilty only to conspiracy to
commit common law robbery on the state conviction, the
court noted that he had "admitted the criminal conduct associ-
12 UNITED STATES v. BENNETT
ated with" the original and significantly more serious charges
of "robbery with a dangerous weapon and possession of a
firearm by a felon." On the second ground, the court observed
that Bennett had "admitted to repeatedly using cocaine while
on supervised release"—in fact, less than two months after
leaving prison.
The court then declared that "the focus of a revocation pro-
ceeding is the breach of trust associated with being on super-
vised release and then continuing to engage in criminal
behavior." The judge returned to this theme again and again,
as demonstrated by the following statements:
• "[T]he court hoped that Mr. Bennett would do
better than he had done so far, but it is what it is";
• "The court does believe that there is a serious
breach of trust";
• "[I]t certainly didn’t seem Mr. Bennett kind of
learned too much while he was incarcerated or
really had any respect for the trust the court had
placed in him";
• "He’ll pay the price for that egregious breach of
trust today";
• "The sentence he’s going to get today derives
from the breach of trust";
• "[T]oday he’ll be held to account for his breach
of trust, the repeated breach of trust, the serious
violation in connection with" his first federal
conviction;
• "He didn’t learn anything";
• "He breached the trust of this court";
UNITED STATES v. BENNETT 13
• "[H]is conduct reflects an egregious breach of
trust associated with the sentence . . . handed
down" on his second federal conviction.
The judge also declared that Bennett "remains a threat."
The court did not reference Bennett’s rehabilitative needs
at all for the first two and one-half of the three pages of tran-
script encompassing the sentencing explanation. As its last
point before pronouncing the second sentence (after making
all of the statements listed above), the judge simply men-
tioned that Bennett "needs intensive substance abuse treat-
ment" and that "the court will impose a sentence that provides
ample time for that." The judge then stated that the sentence
was meant both to "reflect the serious nature of the breach of
trust" and to "provide ample time for substance abuse treat-
ment." These statements comprise the sum total of any Tapia
error. While the court also noted its recommendation that
Bennett "receive intensive substance abuse treatment" while
in prison, this recommendation was plainly proper under
§ 3582(a), as confirmed by Tapia and discussed above.
Thus, when properly situated within the entire sentencing
proceeding, Bennett’s rehabilitative needs clearly constituted
only a minor fragment of the court’s reasoning. By contrast,
the judge made plain that the defiance demonstrated by Ben-
nett’s multiple criminal acts during his short period of relative
freedom was simply staggering. The concern with this breach
of trust, which both led off the discussion and bore all of its
emphasis, far outweighed any other concerns and provided
independent justification for the sentence.
This determination is underscored by comparing the pres-
ent case with the sentencing proceeding at issue in Tapia.
There, the district judge emphasized that "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." Tapia, 131 S. Ct. at 2385, 2392. The "number
14 UNITED STATES v. BENNETT
one" consideration "is the need to provide treatment," the
court reiterated—"[i]n other words, so [Tapia] is in long
enough to get the 500 Hour Drug Program." Id. at 2385,
2392-93 (emphasis added). Even given these indications that
the defendant’s rehabilitative needs drove the length of the
sentence, the Supreme Court remanded for a determination on
this issue, id. at 2393 (remanding for the Court of Appeals to
consider under Olano "the effect of Tapia’s failure to object
to the sentence when imposed"); and the two concurring Jus-
tices outlined a litany of factual considerations supporting the
district court’s other, deterrence-based explanation for the
sentence, id. at 2393-94 (Sotomayor, J., concurring). The fact
that it was apparently a close question in Tapia whether the
rehabilitation rationale drove the sentencing decision—
despite the prominence of that rationale—simply confirms
that the answer in the present case is straightforward: it did
not.
This analysis demonstrates that any Tapia error did not
influence the outcome of the revocation hearing. Rather, the
court imposed the sentence it chose because of Bennett’s
"egregious breach of trust," a perfectly appropriate basis—
and, in fact, the principal basis on which the Guidelines
encourage courts to ground revocation sentences. See U.S.
Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.
(2011) ("[A]t revocation the court should sanction primarily
the defendant’s breach of trust . . . ."). Bennett’s challenge
fails under Olano’s third prong, and this court therefore prop-
erly declines to order a purposeless remand where the district
court does nothing more than reiterate what it has made clear
all along.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED