United States v. Thornton

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
January 20, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-1345
CHRISTOPHER WAYNE THORNTON,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CR-00443-RBJ-1)
_________________________________
Ryan K. Melcher, Assistant Federal Public Defender (Virginia L. Grady, with him on the
briefs), Denver, Colorado, for Defendant-Appellant.
Karl L. Schock, Assistant United States Attorney (John F. Walsh, United States Attorney,
with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Defendant Christopher Thornton appeals from the district court’s sentence of
seventy-eight months in prison. The issue is whether the district court committed
procedural error by basing the length of Thornton’s sentence, in part, on the
treatment and vocational services he would receive in jail. Federal judges may not
use imprisonment as a means to promote defendants’ correction or rehabilitation.
Tapia v. United States, 564 U.S. 319, 335 (2011). In this case, the district court
calculated the advisory prison range under the Sentencing Guidelines and Thornton
moved for a downward variance—requesting a sentence below the advisory range.
The court denied that request, offering several reasons not to impose a below-
guidelines sentence, including that Thornton “needs enough time in prison to get
treatment and vocational benefits.” (Aplt. App. Vol. III. at 36). Thornton claims on
appeal, without having objected in the district court, that the court’s rationale for
sentencing violates Tapia. With this new argument we review the case for plain
error.
In evaluating Thornton’s sentence, we clarify several principles. First, denials
of downward-variance motions are subject to Tapia scrutiny. Second, Tapia error can
occur even when a district court articulates additional valid reasons for the prison
sentence. Third, a district court need not expressly link a prison sentence to a
specific treatment program in order to trigger Tapia error. Fourth, there is no Tapia
error when a district court addresses rehabilitation merely to refute an offender’s
argument that in-prison treatment justifies a lesser sentence, but there is error when
the district court goes further and grounds his sentence, in part, on the perceived
benefit to the offender of providing prison-based rehabilitation.
2
Applying these principles, we find the district court’s consideration of
in-prison treatment was erroneous, but not plainly so. Accordingly, having
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.
I. Factual Background
In 2014, Thornton pleaded guilty to possession of a firearm as a felon. The
district court calculated the range of imprisonment under the federal Guidelines was
seventy-seven to ninety-six months. Thornton requested a downward variance to
thirty-eight months based on his youth and the nonviolent nature of his criminal
history. He also argued that in-prison treatment during the proposed thirty-eight
months would help mitigate any potential risk he posed to the community. The
district court, however, denied the variance motion. Even though the district court
was initially prepared to sentence Thornton to eighty-four months in prison, the
government ultimately requested a bottom-guideline sentence of seventy-seven
months. After explaining his reasoning, the judge imposed a sentence of seventy-
eight months’ imprisonment.
The district court offered several reasons for its decision not to grant the
downward variance or otherwise to impose a lesser sentence. The district court first
emphasized: “[T]he overriding reason is that I don’t think certainly in this case that it
is in the defendant’s best interest to argue for or for a court to give him the lowest
possible sentence. This is a fellow who doesn’t do well on his own. Never has. And
he needs all kinds of services that he can get and will get in prison[.]” (Aplt. App.
3
Vol. III. at 32) (emphasis added). The court then turned to Thornton’s criminal
history, citing his juvenile felony-level adjudications and his adult felony
convictions. It also discussed Thornton’s upbringing, observing how Thornton had
been deserted by his mom and had a challenging history with his dad. The court then
addressed Thornton’s gang history, his lack of education, and the credit Thornton
warranted for going back to get his GED. Then, the judge said: “He’s got mental-
health issues, and he needs treatment. . . . He hasn’t received a lot of treatment,
mostly because he has rejected the efforts of the system in the past to provide him
treatment.” (Id. at 35) (emphasis added). The court also confirmed that Thornton is
a community safety risk because he “mixes drugs and firearms.” (Id.). In finalizing
his decision at seventy-eight months’ imprisonment, the judge summed up with three
reasons: “I do that [1] because of the community-safety issues, [2] because of his
history of rejecting efforts to help him, [3] because I am firmly convinced that he
needs enough time in prison to get treatment and vocational benefits.” (Id. at 36)
(emphasis added).
II. Legal Background
The Sentencing Reform Act commands federal judges generally to consider
several factors in determining an appropriate sentence, including the nature and
circumstances of the offense and the history and characteristics of the defendant,
18 U.S.C. § 3553(a)(1), as well as the public’s need for punishment, deterrence,
community safety, and the defendant’s need for rehabilitation or correctional
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treatment, § 3553(a)(2). But the Act separately and more specifically addresses itself
to the sentence of imprisonment, directing judges to “consider the factors set forth in
section 3553(a) . . . , recognizing that imprisonment is not an appropriate means of
promoting correction and rehabilitation.” § 3582(a) (emphasis added). The same
law instructs 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 or providing the defendant with needed educational or
vocational training, medical care, or other correctional training.” 28 U.S.C.
§ 994(k) (emphasis added). The Supreme Court interpreted these two sections to
permit a sentencing court to consider the § 3553(a) factors in deciding the length of
imprisonment, except for the factor relating to rehabilitation and correctional
treatment. Tapia v. United States, 564 U.S. 319, 326-34 (2011). Accordingly, Tapia
announced an unequivocal rule: “a court may not impose or lengthen a prison
sentence to enable an offender to complete a treatment program or otherwise to
promote rehabilitation.” Id. at 335.
III. Standard of Review
Thornton did not argue below that the district court improperly based
Thornton’s sentence on rehabilitation. We therefore review for plain error. E.g.,
United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). Under this
standard, Thornton must show: (1) the district court erred, (2) the error was plain,
5
(3) the error prejudiced his substantial rights, and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.IV. Discussion
Considering just the first two prongs of plain-error review, the sentence may
be reversed only if the error was plain or obvious. See, e.g., United States v.
Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). We thus divide our discussion into
two parts: (1) whether there was error, and (2) whether any error was plain. At the
first stage of our inquiry (the existence of error), we address and reject four distinct
arguments for why Tapia may not apply in this case. At the second stage (the
obviousness of the error), we conclude that there was sufficient nuance in some of
the Tapia analysis—particularly in light of United States v. Naramor, 726 F.3d 1160(10th Cir. 2013)—such that the district court’s error was not plain. Accordingly, we
affirm.
A. The district court erred in basing Thornton’s sentence, in part, on Thornton’s
need for treatment in prison
In explaining the denial of the downward variance motion, the district court
started and ended with statements about Thornton’s need for in-prison treatment.
The court began by saying the “overriding reason” for denying the variance motion
was that it was not in Thornton’s “best interest” because he “needs all kinds of
services that he can get and will get in prison[.]” (Aplt. App. Vol. III at 32). Then,
6
after discussing community safety and Thornton’s criminal history, the court
concluded its explanation by stating “I am firmly convinced that [Thornton] needs
enough time in prison to get treatment and vocational benefits.” (Id. at 36). Faced
with this record, we conclude the district court grounded Thornton’s sentence, at least
in part, on a desire to promote his rehabilitation. In determining whether the district
court erred in doing so, we also examine several possible arguments for why Tapia
may not control. We find them unpersuasive.
1. Denials of downward variance motions are subject to Tapia review
The government argues for a categorical rule that denials of downward-
variance motions are not subject to Tapia error. In the government’s view, a
sentencing judge may properly consider in-prison treatment options as a basis for
declining to impose a below-guidelines sentence. But that position belies precedent,
the relevant federal statute, and common sense.
In United States v. Cordery, we found plain Tapia error because, in part, there
was “every reason to believe[, absent the error,] the district court may [have
imposed] a sentence below [the bottom of the guidelines range.]” 656 F.3d 1103,
1108 (10th Cir. 2011) (emphasis added). This precedent supports the conclusion that,
for the purpose of applying Tapia, there is no difference between refusing a below-
guidelines sentence and granting an above-guidelines sentence.
Consider also the statutory language that gave us Tapia in the first place. The
statute reads, “The court . . . in determining the length of the term [of imprisonment],
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shall consider the factors set forth in section 3553(a) . . . , recognizing that
imprisonment is not an appropriate means of promoting correction and
rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). When a court considers a
motion for downward variance, it is “determining the length” of a prison sentence,
and therefore must be governed by the statutory proscription.
Common sense supports the same conclusion. Refusing to sentence a
defendant below the Guidelines based on his rehabilitative needs creates the same
erroneous result as sentencing him within or above the Guidelines based on
rehabilitation: a term of imprisonment that is longer than it otherwise would have
been had rehabilitative factors not been a basis for the sentence. Accordingly, we see
no good reason to treat motions for downward variance any differently from other
decisions impacting the length of the sentence for the purpose of applying the Tapia
rule.1
2. Alternative valid reasons do not cure Tapia error
The government next points to alternative reasons for denying Thornton’s
motion for a downward variance, citing the district court’s reliance on community
safety and Thornton’s criminal history. But the existence of alternative permissible
1
After the district court determined Thornton’s sentence, the Tenth Circuit
decided United States v. Tidzump, 841 F.3d 844 (10th Cir. 2016), which, based on its
facts, confirmed that a refusal to grant a downward variance is subject to Tapia error.
In that case, the district court actually imposed a below-guidelines term of
imprisonment—but the defendant had asked for an even lower sentence, and we
faulted the district court for relying on rehabilitation in declining to grant that
requested variance. Id. at 845-46.
8
reasons does not cure Tapia error. See Tapia, 564 U.S. at 335-36 (Sotomayor, J.,
concurring) (acknowledging the district court erred even though it considered other
factors in addition to rehabilitation); Cordery, 656 F.3d at 1105 (finding plain Tapia
error even when the district court had imposed a sentence “based on several of the
sentencing factors” that were permissible). If the sentence of imprisonment is based
even partially on rehabilitation, it is erroneous.
A rule requiring reversal only when rehabilitation is the sole motivation would
not make sense. The federal sentencing statute mandates that judges consider other
factors. 18 U.S.C. § 3553(a) (“in determining the particular sentence to be imposed,”
the court “shall” consider enumerated factors (emphasis added)); § 3582 (“in
determining the length of the term [of imprisonment],” the court “shall consider the
factors set forth in section 3553(a)” (emphasis added)). Therefore, there will almost
always be some valid reasons advanced by the district court for imposing the
sentence issued. So the existence of such alternative grounds for a sentence does not
cure the error.
3. There is Tapia error even when there is no specific link between a
treatment program and the length of prison term
In the government’s view, it is not enough for a district court to reference
unspecified treatment or services—there is no error, so argues the government, unless
the judge actually made a specific link between the length of the sentence and
specific treatment programs or services in prison. Applying that rule, the government
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says seventy-eight months here was not necessary to qualify Thornton for any
specific treatment program, so there was no error.
But Tapia does not require such a direct connection between a treatment
program and the length of the prison sentence. By its own terms, Tapia prevents
judges from lengthening a prison sentence “to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” Id. at 335 (emphasis
added). This “or otherwise” clause shows that the prohibition against imposing a
sentence for rehabilitative purposes must extend beyond that narrow set of
circumstances where the sentence is lengthened specifically to qualify the defendant
for a known rehabilitation program. Moreover, in United States v. Valencia, a
persuasive but not binding case,2 we found Tapia error without a direct link between
the length of the sentence and a specific treatment program. 776 F.3d 1173, 1175
(10th Cir. 2015) (remanding even when the district judge did not select a sentence
based on the minimum time necessary to complete or be eligible for in-prison
treatment, but when the judge said generally that the Defendant required additional
treatment, care, and services).
It is true that some of our Tapia cases have factually involved such a direct
connection between the length of the sentence and a specific treatment program. See
United States v. Tidzump, 841 F.3d 844, 845-46 (10th Cir. 2016) (finding Tapia error
when the district judge selected a sentence based on the belief that it was the
2
While Valencia was in fact published in the Federal Reporter, it was not
intended for publication because it was an Order and Judgment of this Court.
Therefore, although it is not binding, it is persuasive.
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minimum necessary for the defendant to qualify for a drug treatment program in
prison); Mendiola, 696 F.3d at 1035 (same); Cordery, 656 F.3d at 1105 (same). Even
Tapia itself involved a sentencing decision based on the judge’s attempt to give the
defendant sufficient time in prison to complete a 500-hour drug program. 546 U.S. at
334; see also id. at 337 (Sotomayor, J., concurring). But we have never said such a
connection is required. That would have contradicted Tapia’s holding and would cut
against the facts of one of our non-binding cases, United States v. Valencia, finding
error without such a requirement, 776 F.3d at 1175.
4. That Thornton himself raised the prospect of rehabilitation does not
cure this particular Tapia error
When asking for the downward variance, Thornton was concerned that the
district court would deny his request on a belief that he posed a danger to the
community. Acting on that concern, Thornton argued that in-prison treatment over
the course of thirty-eight months would be sufficient to mitigate any threat he posed
to the public—thus, in Thornton’s view, a longer sentence would not be necessary
because he would already benefit from in-prison treatment for a sufficient period. In
light of that, it is understandable that the district court addressed Thornton’s
argument about the effects of in-prison rehabilitation programs. But in this case the
record shows that the district court went further and actually imposed a prison
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sentence motivated, in part, by a desire to give Thornton the benefits of treatment in
prison.3
In a situation where a court is addressing a rehabilitation argument raised by
the offender himself, the court might think it is pinned on the horns of an impossible
dilemma. On the one hand, it must consider community safety—and an offender’s
argument that rehabilitation mitigates the community risk is directly relevant to that
consideration. On the other hand, it must be careful of Tapia’s strict boundaries.
However, Tapia does not bar discussion of the consequences of in-prison treatment
on a possible aggravating factor (e.g., community safety) in denying a downward
variance; instead, it only precludes lengthening a prison sentence for the purpose of
providing an offender with perceived rehabilitative benefits. Cf. Tapia, 564 U.S.
at 334 (“A court commits no error by discussing the opportunities for rehabilitation
within prison or the benefits of specific treatment or training programs.” (emphasis
added)); United States v. Lemon, 777 F.3d 170, 174 (4th Cir. 2015) (observing the
“broad consensus” that Tapia error turns on “whether a sentencing court’s reference
to rehabilitative needs is causally related to the length of the sentence”).
That is the teaching of United States v. Naramor, 726 F.3d 1160, 1168 (10th
Cir. 2013). The offender in Naramor raised the issue of rehabilitation as an argument
3
We do not consider this invited error. Invited error occurs when the party
sought out or “affirmatively approv[ed]” an errant outcome. See United States v.
Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012). It is a “species of waiver” because
it requires intentional relinquishment of a right. United States v. Rodebaugh, 798
F.3d 1281, 1304 (10th Cir. 2015). In this case, Thornton did not seek out or willingly
approve of a longer sentence based on rehabilitation—he in fact asked for just the
opposite. Thus, this is not a proper fit for the invited error doctrine.
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for a shorter prison sentence, and in response to the offender’s argument, the district
court discussed in-prison treatment in order to explain why “earlier release would not
improve treatment options[.]” Id. at 1168. Reviewing the district court’s discussion
of rehabilitation, we found no Tapia error because the district court “did not tie the
length of his sentence to his need for treatment.” Id. (emphasis added). In other
words, reading that case holistically, it was evident that the district court there did
not, in fact, extend the length of the sentence for the purpose of getting the defendant
needed treatment in prison. Absent that motivation to improve an offender’s lot by
giving him more time in prison, there is no Tapia error.
Thornton, like the defendant in Naramor, raised the prospect of prison
rehabilitation in advocating for a lesser sentence. But unlike in Naramor, where the
court determined the sentence for entirely proper reasons and the district court
discussed rehabilitation merely to reject the offender’s specific argument, the record
in this case suggests the district court affirmatively desired to give Thornton enough
time in prison to turn his life around, and expressly predicated the imposed sentence,
in part, on that desire. (Aplt. App. Vol. III at 32) (“And he needs all kinds of
services that he can get and will get in prison[.]”); (id. at 35) (“He’s got mental health
issues, and he needs treatment.”); (id. at 36) (“I am firmly convinced that he needs
enough time in prison to get treatment and vocational benefits.”). That motivation is
precisely what Tapia proscribes. Thus, the district court erred.
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B. Although the district court erred in predicating the sentence, in part, on
Thornton’s rehabilitative needs, that error was not plain
Thornton must also prove the district court’s error was plain or obvious. An
error is plain “when it is contrary to well-settled law.” United States v. Ruiz-Gea,
340 F.3d 1181, 1187 (10th Cir. 2003). For that inquiry we look to whether the
Supreme Court or the Tenth Circuit has addressed the issue. Id. When the Supreme
Court announced its rule in Tapia, it spoke unequivocally in precluding courts from
considering rehabilitation when imposing or lengthening a prison sentence. See
Mendiola, 696 F.3d at 1036 n.2 (“Tapia’s holding was clear and unequivocal.”).
Even Tapia itself concluded the reliance on rehabilitation was so plainly contrary to
the federal statute that it warranted a finding of plain error.4 See 546 U.S. at 322
(noting defendant’s failure to object in the district court); id. at 335 (remanding for
consideration of the remaining prongs of plain-error review).
That being said, this case involves some legal nuances that are not obvious. In
particular, two issues may not have been clearly foreclosed by existing precedent:
(1) whether Tapia is only violated when the court expressly links the length chosen
for the prison sentence to a specific treatment program (see supra Part IV.A.3), and
(2) whether Tapia is violated when the district court references rehabilitation only
after the offender himself injects rehabilitation into the sentencing calculus on his
own initiative, (see supra Part IV.A.4).
4
The Supreme Court’s finding of plain error in Tapia is a reminder that plain
error may be found even when there is no previous controlling authority from the
Supreme Court or relevant courts of appeals—an error may still be plain if the statute
itself conveys a clear command.
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First, although we hold that Tapia does not require such a direct connection
between a treatment program and the length of the prison sentence, there is no
binding case that has previously so held. Our “Order and Judgment” in United States
v. Valencia, 776 F.3d 1173 (10th Cir. 2015), which found error without such a
connection, is persuasive, but not binding. Moreover, as noted earlier, most cases
from this circuit have factually involved that express connection.
Second, before today’s decision, and in light of United States v. Naramor, 726
F.3d 1160 (10th Cir. 2013), a district court would have lacked clear guidance from
controlling authority on how to consider rehabilitation-based arguments raised by the
offender as a grounds for leniency. We have now clarified that a district court may
address rehabilitation in evaluating an offender’s argument that such rehabilitation
would lessen the offender’s danger to the community and thereby justify a shorter
term of imprisonment.5 See Naramor, 726 F.3d at 1168 (finding no Tapia error when
the district court’s reference to in-prison treatment was made only to refute the
offender’s rehabilitation-based argument). But a district court may not then base the
length of imprisonment on a desire to promote the offender’s rehabilitation. That is,
the court may not lengthen a prison sentence for the purpose of exposing the offender
5
A district court does not violate Tapia merely by discussing the benefits of
in-prison treatment when such discussion did not actually motivate a longer sentence,
but was merely incidental thereto. See Tapia, 564 U.S. at 334 (“A court commits no
error by discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs.”); United States v. Lemon, 777 F.3d 170,
174 (4th Cir. 2015) (observing the “broad consensus” that Tapia error turns on
“whether a sentencing court’s reference to rehabilitative needs is causally related to
the length of the sentence”).
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to the rehabilitative benefits of prison. Before today, no controlling authority has
clearly spelled out this delineation, so we cannot fault the district court here for
committing Tapia error after Thornton himself injected the rehabilitation issue into
the sentencing discussion. See Ruiz-Gea, 340 F.3d at 1187 (explaining that the
obviousness of the error turns on the presence of controlling authority that has
spoken clearly to the issue).
These are precisely the nuances that could have been worked out—and error
avoided—had Thornton made a Tapia objection in the district court at the time of
sentencing. Had this issue been raised below, we have no doubt that the district court
could have clarified its reasoning and avoided Tapia error. But because Thornton did
not raise the issue when it could have been meaningfully addressed, we are forced at
the appellate level to review a record that has now become set in stone. That is
precisely what the plain-error doctrine is designed to discourage. Here, the plain-
error doctrine proves fatal to Thornton’s claims.
V. Conclusion
We find the district court’s consideration of rehabilitation as a part of its
sentencing calculus was erroneous, but not plainly so. Accordingly, we AFFIRM the
sentence.
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