United States v. Andre Martin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE PAUL MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:09-cr-00010-jpj-pms-1)
Argued: December 10, 2010 Decided: September 1, 2011
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant. Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, for Appellant. Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Paul Martin pleaded guilty to a single count of
escape. See 18 U.S.C. § 751(a). The district court varied
upward from the advisory sentencing range of 15-21 months and
sentenced Martin to 48 months’ imprisonment. Martin appeals,
arguing that the district court improperly considered Martin’s
rehabilitative needs when determining the length of his
sentence. See 18 U.S.C. § 3582(a). We affirm.
I.
18 U.S.C. § 3582(a) directs district courts when
“determining whether to impose a term of imprisonment” and when
“determining the length” of any term of imprisonment to
“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.” (Emphasis added). At the time of Martin’s
sentencing, this court had not addressed § 3582(a) in a
published opinion, and the circuits that had considered the
statute were divided as to its scope. Compare, e.g., United
States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994) (concluding
that § 3582(a) prohibits consideration of rehabilitative needs
when deciding whether to impose a term of imprisonment, but does
not prohibit consideration of rehabilitation when determining
2
the length of the sentence to be imposed), with, e.g., United
States v. Manzella, 475 F.3d 152, 161 (3d Cir. 2007) (concluding
that § 3582(a) prohibits consideration of rehabilitative needs
when determining whether to impose a term of imprisonment and
when determining the length of any term of imprisonment).
The Supreme Court, however, recently resolved the
uncertainty, concluding that § 3582(a) “precludes sentencing
courts from imposing or lengthening a prison term to promote an
offender’s rehabilitation.” Tapia v. United States, 131 S. Ct.
2382, 2391 (2011). And as the Court’s opinion makes clear,
“rehabilitation” as used in § 3582(a) encompasses educational
and vocational training, medical care, and other treatment
programs. See id. at 2391-92; see also 28 U.S.C. § 994(k)
(directing the Sentencing Commission to ensure that the
Sentencing 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 treatment”).
II.
Shortly after Martin was arrested on the escape charge,
he was diagnosed with a “serious and chronic medical condition
that [will], in all likelihood, both shorten his life expectancy
3
and require life-long treatment.” Brief of Appellant at 5. 1 On
appeal, Martin argues that he is entitled to resentencing
because the district court violated § 3582(a) by considering his
medical condition and need for treatment when determining
Martin’s sentence. The government, however, argues that the
district court varied upward because of Martin’s extensive
criminal history, not his need for medical treatment. As we
will explain, we believe the record establishes that the
district court based its sentencing decision, at least in part,
on Martin’s medical condition and need for treatment.
The record reveals that Martin’s medical condition played a
role in the sentencing arguments made by both parties. The
government moved for an upward variance from Martin’s advisory
sentencing range, arguing that Martin’s criminal history
category (Category VI, the highest category) substantially
under-represented the seriousness of his criminal history and
the likelihood that he would commit additional crimes in the
future.
Counsel for Martin opposed that motion and urged the court
to consider instead a downward variance. Counsel argued that
1
The specifics of Martin’s medical diagnosis appear in a
sealed portion of the record, but counsel for Martin chose not
to identify the condition in the brief. Because the specific
diagnosis is not relevant to our analysis, we follow counsel’s
lead and refer to the diagnosis in general terms.
4
most of Martin’s criminal history points were from drug crimes
and misdemeanor conduct that presented no danger to society, and
that given Martin’s age (41 at the time of sentencing), Martin
was less likely to re-offend than younger Category-VI
defendants. Counsel also contended that Martin’s medical
condition gave Martin a newfound motivation for avoiding future
criminal activity, explaining that the diagnosis had “both
sharpened [Martin’s] resolve for personal rehabilitation and
provided him motivation to lead a sober and lawful life in order
to facilitate the life-long treatment he will need to manage his
medical condition.” J.A. 16.
At the sentencing hearing, the government argued that an
above-Guidelines sentence was warranted, noting that Martin’s
prior convictions were not merely for simple drug offenses, but
also included robberies, escapes, and drug-distribution
offenses. The government contended that Martin was a “very
likely candidate to be a recidivist,” J.A. 25, given his history
of committing new offenses shortly after release from a prior
offense. As to the medical diagnosis, the government argued
that the diagnosis was
not a reason for a downward departure, but based on
his criminal history and I think what appears to be a
belief by Mr. Martin that almost all is lost, that he
really has nothing to lose at this point, and that is
one more reason for an upward departure as a means of
deterrence, and not necessarily a deterrence to other
individuals in his same position, but more so as a
5
deterrence for Mr. Martin that while he is locked up
he will not be out committing any further offenses.
J.A. 26-27.
The district court also addressed Martin’s medical
condition when announcing its sentence. After listing each of
the § 3553(a) factors on the record and summarizing the
information contained in the presentence report, the district
court stated its view that the advisory sentencing range was
inadequate. The court then turned to the arguments made by
Martin in support of a below-Guidelines sentence:
It is first argued on Mr. Martin’s behalf that he has
had a life change because he now knows that he has
received a diagnosis for a life threatening disease;
that in the words of the memorandum in his behalf will
in all likelihood shorten his life expectancy and
require long term treatment, and I accept that fact,
of course.
The problem is that based on Mr. Martin’s past
history, and lack of responsibility in his own life,
lack of any stabilizing work or life experience, I
think it is unlikely that he will take the steps
necessary to obtain needed medical treatment, and not
only will that harm him, but based on his past history
will also leave others at risk from his disease which
can easily be passed on to others.
J.A. 34. The court went on to reject the argument that Martin’s
age made him less likely to re-offend and the argument that a
lengthy sentence would not be effective in deterring future
crimes that might be committed by Martin or by others:
[A] sentence above the guideline range is not likely,
perhaps, to deter others . . . [and] I think unlikely
to deter Mr. Martin. Mr. Martin has been receiving
criminal sentences throughout his adult life, and he
6
obviously has not been de[t]erred. In fact, he just
left a federal prison where he committed the escape
charge, and the fact that he had been in prison,
obviously, did not deter him. He simply did what he
wanted to do.
. . . .
But one of the important purposes of sentencing
is to incapacitate the defendant, that is, to make
sure the public is protected from him for a reasonable
length of time based on all the circumstances of his
crime.
. . . .
In essence, I believe that Mr. Martin’s prior
history, and criminal history in particular, and all
of his circumstances require a sentence above the
guideline range.
J.A. 35-36.
According to the government, the oral statements made by
the district court at sentencing unambiguously show that the
sentencing decision was driven solely by the court’s concern
about Martin’s extensive criminal history and the likelihood
that he would continue to commit crimes upon his release. We
disagree. While the statements made during the sentencing
hearing show that the district court was concerned with Martin’s
extensive criminal history, the statements also raise the
possibility that Martin’s medical condition was at least a
factor in the court’s decision-making process.
In any event, a review of the “Statement of Reasons” filed
as part of the formal criminal judgment against Martin resolves
any doubt about whether the district court considered Martin’s
7
medical condition when selecting the length of Martin’s
sentence. In the Statement of Reasons, the district court
identified the following § 3553(a) factors as the basis for the
sentence: (1) “the nature and circumstances of the offense and
the history and characteristics” of Martin; (2) the need “to
protect the public from further crimes” that Martin might
commit; and (3) the need to provide Martin with “educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.” J.A. 75. As an
explanation of the facts justifying the above-Guidelines
sentence, the court stated that “[t]he defendant’s criminal and
social history require that he be incapacitated by confinement
in order to protect the public and provide him with needed
medical treatment.” Id. (emphasis added). In our view, this
explanation makes it clear that the district court in fact did
consider Martin’s medical condition and need for treatment when
determining the length of sentence to be imposed. 2
2
Relying on the well-established general “rule that where a
conflict exists between an orally pronounced sentence and the
written judgment, the oral sentence will control,” United States
v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003), the
government argues that we should disregard the written
explanation as inconsistent with the district court’s oral
explanation of the basis for its sentence. We disagree. The
rule is typically applied when there are questions about the
sentence itself (e.g., the length of the sentence, the terms of
supervised release) rather than about the reasoning underlying
the court’s decision to impose a particular sentence. Because
(Continued)
8
Although the district court when sentencing Martin did not
have the benefit of the Supreme Court’s decision in Tapia, it is
now clear that the district court erred by considering Martin’s
medical needs when selecting the appropriate sentence. The
question, then, is whether the court’s error requires re-
sentencing.
A.
To determine whether the Tapia error requires resentencing,
we must first determine the appropriate standard of review.
This court generally reviews preserved sentencing errors for an
abuse of discretion, reversing only if an error is not harmless.
Errors raised for the first time on appeal, however, are
reviewed only for plain error. See, e.g., United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In this case, counsel
for Martin did not mention § 3582(a) prior to or during
district courts are statutorily required to provide written
explanations of non-Guidelines sentences, see 18 U.S.C. §
3553(c)(2), it is not obvious to us that the rule should be
applied in this case in the manner suggested by the government.
In any event, the general rule as described in Osborne applies
when the oral pronouncement is unambiguous and in conflict with
the written judgment. See Osborne, 345 F.3d 281, 283 n.1. As
discussed above, the district court’s oral statements suggest
that the court did consider Martin’s medical condition when
imposing sentence, and the written explanation provided by the
court therefore is not inconsistent with the court’s oral
statements.
9
sentencing or otherwise suggest to the district court that it
was improper to consider Martin’s health issues when imposing
sentence, nor did counsel object after the sentence was
announced or after reviewing the formal judgment that included
the district court’s Statement of Reasons explaining the
sentence. Notwithstanding this failure to explicitly raise §
3582(a) before the district court, Martin, relying on United
States v. Lynn, contends that he preserved his sentencing
objection by arguing for a within-Guidelines sentence. We
disagree.
In Lynn, we held that a defendant preserves an objection to
the court’s consideration of the § 3553(a) factors or its
explanation of the sentence by arguing “for a sentence different
than the one ultimately imposed.” Lynn, 592 F.3d at 578. We
rejected the government’s contention that such a challenge could
be preserved only by an objection made after sentence was
imposed, explaining that “[b]y drawing arguments from § 3553 for
a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.” Id.
Given the differences between the claim raised in this case and
those raised in Lynn, we do not believe the manner of error
preservation found sufficient in Lynn can be viewed as
10
sufficient in this case, because there was nothing in Martin’s §
3553(a)-based arguments about the appropriate sentence that
would have alerted the district court to Martin’s claim that §
3582(a) precluded any consideration of his medical condition.
See United States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010)
(applying plain-error review to claim that district court when
imposing sentence improperly considered defendant’s exercise of
his right to trial: “This claim of error was not addressed at
all in Hargrove’s earlier arguments in favor of a below-
Guidelines sentence. It was an alleged error that arose during
the court’s statements explaining the basis for the sentence it
imposed. Hargrove failed to object to it at the time, thus
denying the district court the opportunity to consider
Hargrove’s argument and correct the purported error.”).
Accordingly, we conclude that Martin’s challenge to his sentence
must be reviewed for plain error only.
B.
Under plain-error review, Martin bears the burden of
establishing that the district court erred, that the error was
plain, and that the error affected Martin’s substantial rights.
See United States v. Olano, 507 U.S. 725, 734 (1993); United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Even if Martin makes the required showing, “we retain discretion
11
to deny relief.” United States v. Robinson, 627 F.3d 941, 954
(4th Cir. 2010). “[P]lain errors should only be corrected where
not doing so would result in a miscarriage of justice, or would
otherwise seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Id. (citation, internal
quotation marks, and alteration omitted).
As we have noted, a Tapia error occurred, and we assume,
without deciding, that the error was plain. Nonetheless, Martin
cannot show that the Tapia error affected his substantial
rights.
As a general rule, an error affects substantial rights if
the error was prejudicial, which “means that there must be a
reasonable probability that the error affected the outcome of
the [proceeding].” United States v. Marcus, 130 S. Ct. 2159,
2164 (2010); accord United States v. McClung, 483 F.3d 273, 276
(4th Cir. 2007). To satisfy this requirement in the sentencing
context, there must be a non-speculative basis in the record for
concluding that the defendant would have received a lower
sentence had the error not occurred. See United States v.
Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc) (explaining
that a sentencing error affected the defendant’s substantial
rights if the sentence imposed “was longer than that to which
[the defendant] would otherwise be subject”); United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (explaining that error
12
in treating the Guidelines as mandatory affects a defendant’s
substantial rights only if the record reveals a “nonspeculative
basis for concluding that the treatment of the guidelines as
mandatory affected the district court’s selection of the
sentence imposed” (internal quotation marks and alteration
omitted)).
As previously discussed, the district court’s decision to
impose an above-Guidelines sentence was based on Martin’s
medical condition and his extensive criminal history. The
district court’s statements demonstrate that the court was quite
concerned about Martin’s criminal history, and the court clearly
shared the government’s view that Martin’s criminal history
score understated the severity of his criminal history and the
likelihood that he would re-offend. The extensiveness of
Martin’s criminal record alone would have been sufficient to
support the sentence imposed by the court, and there are no
statements in the record suggesting that the court would have
imposed a lesser sentence had it not considered Martin’s health
issues.
It is, of course, possible that the court might have
imposed a lower sentence, but that simple possibility is not
enough to satisfy the defendant’s burden under plain-error
review. Instead, the defendant must show that there is a
reasonable probability that the error “actually resulted in
13
prejudice and not merely possible or speculative prejudice.”
Robinson, 627 F.3d at 955; cf. Marcus, 130 S. Ct. at 2164(finding “irreconcilable with our ‘plain error’ precedent” the
Second Circuit’s practice of reversing a specific type of trial
error under plain-error review whenever there is “any
possibility, no matter how unlikely” of prejudice). Because
there is no concrete, record-based indication that Martin would
have received a lower sentence, Martin has not demonstrated that
his substantial rights were actually affected by the district
court’s Tapia error. See Jones v. United States, 527 U.S. 373,
394-95 (1999) (“Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that
the error actually affected his substantial rights.”); White,
405 F.3d at 223-24 (concluding that defendant did not establish
that sentencing error affected the district court’s selection of
a within-Guidelines sentence in part because “[t]he district
court made no statements at sentencing indicating that it wished
to sentence White below the guideline range but that the
guidelines prevented it from doing so”).
14
III.
Accordingly, because Martin has not satisfied the stringent
requirements of plain-error review, we hereby affirm his
sentence. 3
AFFIRMED
3
Our conclusion that Martin has not demonstrated that his
substantial rights were affected by any error in the district
court’s consideration of Martin’s medical condition also
forecloses his claims (raised for the first time on appeal) that
the sentence violated the statutes governing quarantine, see 42
U.S.C. §§ 264-272, and amounted to punishment for his medical
status in violation of the Eighth Amendment, see, e.g., Robinson
v. California, 370 U.S. 660, 666-67 (1962).
15