United States v. Becky Holman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3414
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BECKY HOLMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-CR-217 — C.N. Clevert, Jr., Judge.
____________________
ARGUED SEPTEMBER 21, 2016 — DECIDED OCTOBER 18, 2016
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Becky Holman pled guilty to con-
spiracy to distribute heroin and was initially sentenced to
thirty-six months in prison. She appealed, and for reasons un-
related to this appeal, we vacated Holman’s sentence and re-
manded for resentencing. On remand, the district court sen-
tenced Holman to thirty-three months’ imprisonment. Hol-
man now appeals, arguing that the district court procedurally
2 No. 15-3414
erred at resentencing by lengthening her prison term to pro-
mote rehabilitation from her heroin addiction. For the reasons
that follow, we affirm the district court’s sentence.
I. Background
Becky Holman began using heroin to manage pain associ-
ated with rheumatoid arthritis. She became addicted, and fi-
nanced her addiction by dealing in a conspiracy that operated
in rural central Wisconsin from 2011 to 2012.
In April 2012, Amalia Henschel died of a heroin overdose.
In the course of investigating that death, Wisconsin law en-
forcement discovered Holman’s heroin distribution ring and
found that one of Holman’s co-conspirators had provided
Henschel with heroin on the day she died. Several members
of the conspiracy identified Holman as a regular participant.
On July 28, 2012, law-enforcement agents conducted a con-
trolled purchase of heroin from Holman. Holman was ar-
rested and charged with participating in a drug conspiracy
involving one kilogram or more of a mixture containing her-
oin, which caused a death. See 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A), (b)(1)(C). The government later dropped the caus-
ing-death element from § 841(b)(1)(A).
On February 19, 2014, Holman pled guilty to one count of
conspiring to distribute heroin. See 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(C). At her first sentencing hearing on September 10,
2014, the district court accounted for downward adjustments
under the “safety valve” provision of U.S.S.G. § 5C1.2 and for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).
The court then calculated Holman’s final Guidelines sentenc-
ing range as fifty-seven to seventy-one months. The district
court considered probation inadequate, but found that the
No. 15-3414 3
Guidelines range was higher than necessary, and sentenced
Holman to thirty-six months’ imprisonment. The court stated,
among other things, that “the critical thing in this case is the
fact that this conspiracy is one that ultimately resulted in the
death of someone. I should say someone who was taking her-
oin supplied by this conspiracy died.…And so the Court sees
your offense as serious.”
Holman appealed her sentence to this court, and while
that appeal was pending, the district court conducted sen-
tencing proceedings for the co-conspirator who had supplied
Henschel with heroin on the day she died. In April 2015, at
the conclusion of those proceedings, the district court found
the government’s evidence insufficient to prove that the co-
conspirator’s heroin actually caused Henschel’s overdose. As
a result, on June 23, 2015, this Court vacated Holman’s judg-
ment of conviction and remanded for resentencing, so that the
district court could re-determine Holman’s sentence without
consideration of the death.
At resentencing on October 14, 2015, the district court ex-
plained that it would not consider the death in determining
Holman’s sentence. The government asked the district court
to again impose a thirty-six-month sentence, and Holman
asked for probation. Holman noted, among other things, that
her addiction resulted from her attempts to alleviate “chronic
pain,” and that she had entered a drug treatment program in
September 2012 and had not relapsed since that time. She also
stated that her incarceration thus far had been at a medical
center that did not meet her needs, and asked that “if there’s
any need for incarceration, … that the Court indicate that she
be housed at a grade-five facility which … is more consistent
with her illness.”
4 No. 15-3414
The district court considered in turn many of the factors in
18 U.S.C. § 3553(a). It explained that conspiring to distribute
heroin is “undoubtedly … a serious offense,” and that there
remained “a need for general deterrence so that others in-
volved in the crime of distributing heroin might think twice.”
The court also considered “the needs of the public,” and the
need to keep heroin “out of the hands of [potential users].”
The court then addressed the defendant’s drug problem, stat-
ing:
At this stage, … [t]he Court is not satisfied that
Ms. Holman has undergone sufficient treatment
for her drug problem.
[Defense counsel] has noted that in his view the
Bureau of Prisons by virtue of its placement of
Ms. Holman in a level-four facility where little
attention was given to her drug problem until
sometime in August of this year, consequently,
it would—it does seem to me prudent that Ms.
Holman receive further treatment and/or coun-
seling so that she can continue with her life un-
encumbered by a drug addiction. And certainly
Ms. Holman needs the tools to cope with the po-
tential of relapse after she is finished with her
obligations in this case.
Finally, the district court considered the applicable Guide-
lines range—fifty-seven to seventy-one months’ imprison-
ment—and the sentences of Holman’s co-defendants, which
ranged from time served to 124 months. The court also noted:
[A] small reduction in the sentence that was pre-
viously imposed is warranted, in part, because
No. 15-3414 5
Ms. Holman was eligible for safety valve con-
sideration and is in criminal history category
one.
Moreover, upon further reflection, more weight
should be given to her level of cooperation and
the trigger for her involvement in this case.
Consequently, the district court imposed a thirty-three-
month prison sentence. It later underscored:
[T]here is a need for Ms. Holman to undergo
monitoring of her potential to continue using
drugs particularly in light of stressors that may
occur. Pain is something that arises sometimes
out of the blue, and stressful situations arise as
well.
When a person has been addicted as Ms. Hol-
man has been addicted, it is important that there
be counseling and treatment available.
The court asked whether there were any additional mat-
ters or arguments that the parties wished to raise, and Hol-
man asked the court to recommend that she be “eligible for
the residential drug treatment program offered by the Bureau
of Prisons.” The district court agreed, “inasmuch as she does
have an addiction that should continue to be treated; and it
would be useful in her rehab in preparation for release.”
Holman then objected to the thirty-three-month sentence
“in general,” arguing that the district court ignored the re-
quirement contained in 18 U.S.C. § 3553(a) that the court im-
pose a sentence that is “sufficient but not greater than neces-
sary.” The district court responded that the sentence was, in
its view, “no greater than necessary under the circumstance,”
6 No. 15-3414
in light of the Sentencing Guidelines, in order to avoid a dis-
parity with Holman’s codefendants, and because Holman
was responsible for conspiring to distribute one to three kilo-
grams of heroin. The district court elaborated:
And so when I look at the distribution of heroin
here and the conspiracy to which your client
was involved, a sentence of 33 months given
Ms. Holman’s addiction take into account her
acceptance of responsibility, take into account
her debriefing which resulted in her eligibility
for the safety valve, and looking at her need for
rehab and treatment.
I just cannot come to the conclusion that a pro-
bationary sentence such as you have urged or a
lesser sentence would be appropriate given all
of the circumstances here.
And as I pointed out, heroin distribution is a se-
rious offense particularly in view of the conse-
quences that flow from using this drug. People
need to be chilled from distributing this drug
and using this drug.
Holman objected again, noting that she had not used
drugs since her initial appearance in the case. The district
court responded, “So are you suggesting that she not go to a
drug facility so I can take that out?” Holman explained that
ongoing drug treatment would be appropriate, but contended
that her sentence should be shorter because, “as far as a dan-
ger to the community, she ha[d] taken a huge step in the right
direction.” The district court clarified and concluded:
No. 15-3414 7
I’m not suggesting [that] she represents a clear
and present danger to the community at this
time. I did not suggest that. And if that was sug-
gested by my remarks, I do want to clarify what
I said to make sure it is clear that, no, I’m not
suggesting that she is currently a danger be-
cause she represents the potential of going out
and reselling.
What I was more concerned about and was try-
ing to address is that the fact that she does have
a potential of relapsing given her history and
the need to make sure that she has the coping
skills to handle her personal affairs when she
leaves prison and when she goes back into the
community where stressors do occur.
Holman responded, “I’m aware of that.… I think [the]
Court made that clear,” and raised no other objections, stat-
ing, “That will do it.” Before the hearing ended, Holman again
sought the court’s “recommendation that she be admitted to
a program,” and the court confirmed that “[t]he recommen-
dation for admission to the 500 Hour Drug Program will be
included.” This appeal followed.
II. Discussion
Holman claims that the district court improperly length-
ened her prison term to promote rehabilitation from her her-
oin addiction. The Supreme Court in Tapia v. United States, 564
U.S. 319 (2011), interpreted § 3582(a) of the Sentencing Re-
form Act to prohibit a district court from imposing or length-
ening a prison sentence to promote an offender’s rehabilita-
tion. 564 U.S. at 327, 333. However, the Court also held that
8 No. 15-3414
“[a] court commits no error by discussing the opportunities
for rehabilitation within prison or the benefits of specific
treatment or training programs,” nor by “trying to get [a de-
fendant] into an effective drug treatment program.” Id. at 334.
A. Standard of Review
As an initial matter, the parties disagree on the appropri-
ate standard of review. Holman contends that the district
court procedurally erred by “lengthen[ing]” her prison sen-
tence to promote rehabilitation, and de novo review should
apply. See, e.g., United States v. Annoreno, 713 F.3d 352, 356 (7th
Cir. 2013); United States v. Curby, 595 F.3d 794, 796 (7th Cir.
2010) (“Whether the district court followed proper sentencing
procedure is a question of law we review de novo.”) (citation
omitted). The government argues, however, that the “plain
error” standard of Rule 52(b) applies because Holman lodged
no Tapia objection at the time of resentencing. See Fed. R.
Crim. P. 52(b); United States v. Seals, 813 F.3d 1038, 1044 (7th
Cir. 2016) (explaining that, although “we [generally] review a
district court’s application of the Sentencing Guidelines de
novo….[m]ore deference is due … where an appellant failed
to properly raise a claim below”); id. at 1045 (“[F]orfeited [is-
sues] are reviewed for plain error.”); United States v. Guajardo-
Martinez, 635 F.3d 1056, 1058 (7th Cir. 2011) (“Because the ap-
pellant did not raise these objections during the sentencing
hearing, we review the decisions for plain error.”) (citation
omitted).
We agree that Holman did not raise a Tapia objection be-
fore the district court. “To preserve an issue for appellate re-
view, a party must make a proper objection at trial that alerts
the court and opposing party to the specific grounds for the
objection.” United States v. Fluker, 698 F.3d 988, 997 (7th Cir.
No. 15-3414 9
2012) (citation and internal quotation marks omitted). Other-
wise, “the party is deemed to have waived the issue on ap-
peal.” Id. (citation omitted). At resentencing, Holman asked
the court to recommend that she be “eligible for the residen-
tial drug treatment program offered by the Bureau of Pris-
ons,” and the court agreed. She then objected “in general” to
the sentence as “ignor[ing] the [§] 3553 caveat[] that the sen-
tence shall be sufficient but not greater than necessary,” but
did not specify a possible Tapia violation by name or in sub-
stance. When Holman noted that she had “been drug-free
since before she made her initial appearance … in this case,”
the district court understood her to be referencing her access
to a drug treatment program while incarcerated, not the
length of her sentence. After Holman clarified that she did
need treatment but that she had made progress with respect
to not being “a danger to the community,” the district court
explained that Holman’s addiction had come up during the
hearing not because she posed a danger to the community (as
Holman seemed to think), but because Holman could benefit
from the drug treatment program. At no point did Holman
suggest that the district court was lengthening or imposing
her sentence in order to rehabilitate her. Instead, Holman ex-
pressed satisfaction with the district court’s explanation, stat-
ing, “That will do it.” Holman’s general objection that her sen-
tence was “greater than necessary” thus did not properly pre-
serve an objection under Tapia.
In the alternative, Holman argues that we should consider
the alleged Tapia violation to be an “exception” to the district
court’s order, which Holman need not have raised below to
preserve de novo appellate review. See Fed. R. Crim. P. 51(a)
(“Exceptions to rulings or orders of the court are unneces-
sary.”). “Where the district court has already made a decision
10 No. 15-3414
and said definitively that it is imposing [a sentence], a defend-
ant need not take an ‘exception’ to preserve the issue for ap-
peal.” United States v. Gabriel, No. 15-3427, 2016 WL 4087225,
at *3 (7th Cir. Aug. 2, 2016) (citation omitted); see also United
States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“[A] litigant
[need not] complain about a judicial choice after it has been
made. Such a complaint is properly called, not an objection,
but an exception.”). “But a district court can announce a ten-
tative decision or view and invite objections. A failure to ob-
ject in those circumstances can amount to waiver.” Gabriel,
2016 WL 4087225, at *3 (citation omitted).
The district court here, after announcing its thirty-three-
month sentence, explicitly told Holman, “[I]f you believe that
this Court has imposed an illegal sentence or that there are
some issues or matters the Court has failed to take into ac-
count, you through your counsel may be heard before the
Court completes its sentencing hearing.” The district court
then asked whether there were “additional matters or argu-
ments that the parties believe the Court has not taken into ac-
count fully.” The sentence was not yet definitive, and Holman
still had an opportunity to object and potentially affect her ul-
timate sentence. She did not do so with respect to a possible
Tapia violation, and we thus review for plain error.
B. References to Holman’s addiction and rehabilitation
To establish plain error, the defendant must show: “(1) an
error; (2) that is plain; (3) that affected his substantial rights;
and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Guajardo-Martinez,
635 F.3d at 1059 (quoting United States v. Montgomery, 390 F.3d
1013, 1017 (7th Cir. 2004)). The government contends that
“Holman’s argument fails at the first step, because there is no
No. 15-3414 11
‘error’ here.” Holman points to three comments during her
resentencing that she argues reveal a Tapia violation.
1. Comment One
First, Holman objects to the following statement by the
district court:
In the case of someone such as Ms. Holman, the
Court had in the first instance, and still feels in
this particular instance, a need to address the
defendant’s drug problem. At this stage, … [t]he
Court is not satisfied that Ms. Holman has un-
dergone sufficient treatment for her drug prob-
lem.
[Defense counsel] has noted that in his view the
Bureau of Prisons by virtue of its placement of
Ms. Holman in a level-four facility where little
attention was given to her drug problem until
sometime in August of this year, consequently,
it would—it does seem to me prudent that Ms.
Holman receive further treatment and/or coun-
seling so that she can continue with her life un-
encumbered by a drug addiction. And certainly
Ms. Holman needs the tools to cope with the po-
tential of relapse after she is finished with her
obligations in this case.
Holman claims that this language arose in the context of the
district court’s explanation of why a prison sentence was nec-
essary, after the district court considered the Guidelines range
and recognized the need for general deterrence and to avoid
unwarranted sentencing disparities with similarly situated
12 No. 15-3414
defendants. Thus, Holman argues, the district court took Hol-
man’s need for rehabilitation into account in imposing the
thirty-three-month prison sentence.
In context, however, it is clear that the district court’s com-
ment acknowledges Holman’s earlier request that “she be
housed at a grade-five facility which … is more consistent
with her illness.” Immediately before the comment at issue,
the court had referenced “the needs of the public and poten-
tial users of illicit drugs,” and the “need to keep heroin out of
the hands of individuals who might … prolong their addic-
tion.” The district court then logically moved to considering
the defendant’s own addiction and the opportunity for treat-
ment while incarcerated. It revisited the issue later on, noting
that “[w]hen a person has been addicted as Ms. Holman has
been addicted, it is important that there be counseling and
treatment available.” The Supreme Court explicitly stated in
Tapia that it did “not disapprove [of courts].…discussing the
opportunities for rehabilitation within prison or the benefits
of specific treatment or training programs.” 564 U.S. at 334.
That is exactly what the district court did at sentencing. It re-
ferred to defense counsel’s position that Holman ought to be
placed somewhere with an effective drug treatment program,
without discussing the length of time that one needs to qual-
ify for or complete the program. See United States v. Lucas, 670
F.3d 784, 795 (7th Cir. 2012).
No. 15-3414 13
2. Comment Two
Second, Holman objects to the district’s court explanation
of why the thirty-three-month sentence was “appropriate
given all of the circumstances here,” which it provided after
Holman objected to the sentence under § 3553(a). The court
said:
And so when I look at the distribution of heroin
here and the conspiracy to which your client
was involved, a sentence of 33 months given
Ms. Holman’s addiction take into account her
acceptance of responsibility, take into account
her debriefing which resulted in her eligibility
for the safety valve, and looking at her need for
rehab and treatment.
Holman argues that the district court thus improperly consid-
ered “her need for rehab and treatment” as an aggravating
factor in its decision to impose a prison sentence, rather than
granting her request for probation.
In fact, the resentencing record shows that the district
court considered Holman’s “need for rehab and treatment” as
one of the mitigating factors in her case, along with her “ac-
ceptance of responsibility,” and the “debriefing” that resulted
in her “eligibility for the safety valve.” This is consistent with
Holman’s own statement earlier in the proceeding that her
addiction resulted from attempts to alleviate chronic pain, as
well as the district court’s prior explanation that Holman’s el-
igibility for the safety valve, low criminal history category of
one, level of cooperation, and “the trigger for her involvement
in this case” (that is, her addiction to heroin as a painkiller)
together warranted a sentence shorter than thirty-six months.
14 No. 15-3414
3. Comment Three
Third, Holman objects to the following portion of the dis-
trict court’s response to her § 3553(a) objection:
What I was more concerned about and was try-
ing to address is the fact that she does have a
potential of relapsing given her history and the
need to make sure that she has the coping skills
to handle her personal affairs when she leaves
prison and when she goes back into the commu-
nity where stressors do occur.
For the reasons already discussed, the district court’s
statement merely explains that Holman’s addiction had come
up during the hearing because Holman could benefit from the
drug treatment program, which the district court had just ref-
erenced a moment earlier. Whereas the sentencing court in
Tapia had stated that the defendant needed to be “in long
enough” to get drug treatment, 564 U.S. at 322, here, the dis-
trict court’s language does not suggest that it lengthened or
imposed Holman’s sentence in order to ensure that Holman
qualified for or completed a treatment program.
In sum, read in context, none of these comments alone or
together indicate that the district court lengthened or imposed
Holman’s sentence to facilitate her rehabilitation. The court’s
references to Holman’s addiction either explained the oppor-
tunities and benefits of Holman serving her sentence at a fa-
cility with effective addiction treatment, see Lucas, 670 F.3d at
795, or considered her addiction as a mitigating factor, neither
of which is prohibited under Tapia. Moreover, any ambiguity
with respect to the district court’s statements is debatable at
most and thus does not rise to level of plain error. See United
No. 15-3414 15
States v. Ramirez, 783 F.3d 687, 694 (7th Cir. 2015) (“[Plain er-
ror] cannot be subtle, arcane, debatable, or factually compli-
cated.”) (citation omitted); United States v. Jaimes-Jaimes, 406
F.3d 845, 847–49 (7th Cir. 2005) (“Under a plain error standard,
an error must be clear or obvious ….”) (citation omitted).
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment and
sentence of the district court.