United States v. Delvarez Long

In the
United States Court of Appeals
For the Seventh Circuit
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No. 22-2275
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELVAREZ LONG,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cr-00212-001-TWP-TAB-1 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED AUGUST 1, 2023 — DECIDED AUGUST 22, 2023
____________________
Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.
HAMILTON, Circuit Judge. This case presents another
variation on the challenges posed for sentencing judges by
instructions from Congress and the Supreme Court about the
required, permissible, and prohibited roles of rehabilitation in
sentencing.
Appellant Delvarez Long is serving an above-guideline
prison term for possessing a firearm after being convicted of
2 No. 22-2275
a felony. He argues on appeal that the district court plainly
erred by imposing a prison term in part to rehabilitate him,
contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United
States, 564 U.S. 319 (2011). We affirm. Rehabilitation is an im-
portant consideration in most sentences. Tapia permits a judge
to discuss rehabilitation so long as she does not make rehabil-
itation a primary consideration in deciding whether to im-
pose a prison sentence or how long it should be. Our review
of this record does not show a plain error under Tapia.
I. Factual Background and Procedural History
Indianapolis police officers arrested Long on an outstand-
ing warrant for domestic battery. They discovered a stolen
firearm in his waistband and cocaine in plain view. Long was
charged under 18 U.S.C. § 922(g)(1) with possessing a firearm
as a convicted felon.
Long decided to plead guilty, and the district court
combined his guilty-plea hearing with his sentencing. The
court found his advisory guideline range was 33 to 41 months
in prison. Long’s counsel argued for a 33-month sentence and
asked the court to recommend that the Bureau of Prisons
place him in a drug treatment program. The government
argued for an above-guideline sentence of 60 months on the
ground that Long’s criminal history score was under-
representative.
After hearing from counsel and Long himself, the court
said it intended to impose an above-guideline sentence of 51
months in prison to be followed by three years of supervised
release with conditions of drug testing and treatment. The
court then explained its reasons. It started by noting that Long
had four felony convictions and several other convictions,
No. 22-2275 3
and that the guideline calculation understated his criminal
history. Long’s history of domestic violence, in particular, was
“very concerning” to the court, which considered as relevant
conduct an incident in which Long threatened his girlfriend
with what she believed to be a handgun, waved it in her face,
and threatened to hurt her. Long was charged with felony in-
timidation in state court for this conduct, but the charge was
ultimately dismissed. The threat did not add to his criminal
history calculation.
The court recognized that Long had been “afforded the
opportunity for rehabilitation by probation, parole, supervi-
sion, community corrections, jail sentences, and even a prison
sentence.” After acknowledging that Long accepted responsi-
bility for his crime, the court emphasized that it was “a very
serious offense” to carry a loaded, stolen handgun while pos-
sessing cocaine. The court noted that Long had admitted he
was addicted to drugs and requested treatment, and that he
“was abusing cocaine on a regular basis … had possession of
some fentanyl, which is a very dangerous and deadly drug,
… [a]nd he’s experimented with both ecstasy and Adderall.”
The court also mentioned that Long owed approximately
$80,000 in child support and had limited employment history,
though he had obtained a high school diploma in prison.
The court then made the statements at the heart of this ap-
peal:
Mr. Long needs to gain control of his life by
maintaining sobriety, establishing legitimate
employment, and taking care of his children. He
needs some domestic violence assistance, be-
cause he was—he’s violent. He’s domestically
4 No. 22-2275
violent. He needs to get his child support paid
and become a productive member of society.
So the Court is ordering this sentence to pro-
mote respect for the law and provide just pun-
ishment, and it is a long enough time that the
defendant can participate in prison industries,
as well as learn some job skills so that — that he
can use upon his release. Those are the reasons
the Court intends to impose the stated sentence.
The court asked counsel if they had any reasons why sen-
tence should not be imposed as stated. Counsel responded no,
and the court imposed the announced sentence. The court rec-
ommended to the Bureau of Prisons that Long be allowed to
participate in a drug treatment program.
II. Analysis
On appeal, Long argues that the district court plainly
erred by imposing his prison sentence in part to rehabilitate
him. He and the government agree that plain-error review ap-
plies because he did not object in the district court when he
had the opportunity to do so before the sentence was actually
imposed.
To succeed on appeal, Long must establish that (1) there
was an error, (2) it was clear or obvious, and (3) it affected his
substantial rights. If he makes those showings, we must exer-
cise our discretion to decide whether (4) the error seriously
affected the fairness, integrity, or public reputation of the ju-
dicial proceedings. Molina-Martinez v. United States, 578 U.S.
189, 194 (2016) (applying plain-error review to sentencing).
We decide this case at step two: if there was an error, it was
not clear or obvious.
No. 22-2275 5
Under 18 U.S.C. § 3582(a), sentencing courts must “recog-
niz[e] that imprisonment is not an appropriate means of pro-
moting correction and rehabilitation.” The Supreme Court
held in Tapia v. United States, 564 U.S. 319, 332 (2011), that the
statute “precludes sentencing courts from imposing or
lengthening a prison term to promote an offender’s rehabili-
tation.” Rehabilitation under § 3582(a) includes “treatment,
training, and like programs” of the kind mentioned in
§ 3553(a)(2)(D), such as “educational or vocational training,
medical care, or other correctional treatment.” Tapia, 564 U.S.
at 333. Although rehabilitation is one of the statutory pur-
poses of sentencing under § 3553(a), “imprisonment is not an
appropriate means of pursuing that goal.” Id. at 328.
A district judge facing a convicted defendant, and consid-
ering § 3582(a) and Tapia, on one hand, and the need to con-
sider rehabilitation on the other, faces—pick your meta-
phor—a cognitive tightrope, or a minefield, or the challenge
of not thinking about the elephant in the room. See United
States v. Shaw, 39 F.4th 450, 459 (7th Cir. 2022). In deciding first
whether the sentence should include any prison time, the
judge must consider rehabilitation as a goal but may not use
prison for rehabilitative purposes. If a prison term will be im-
posed, the judge may not consider the possibility that prison
will contribute to rehabilitation in deciding how long the
prison term should be. But the judge should also consider re-
habilitation in deciding other aspects of the sentence, includ-
ing a supervised release term and conditions, as well as fines
and restitution. Finally, in explaining the sentence, the judge
may encourage the defendant to take advantage of any reha-
bilitation opportunities available in prison, such as treatment
and counseling for substance abuse and addiction, educa-
tional programs, and job training and work experience. In
6 No. 22-2275
explaining the entire sentencing package, which aims to serve
multiple goals, it can be easy for even the most conscientious
judge to refer to rehabilitation goals without making unmis-
takably clear that those goals did not affect the length of the
prison term. See id. at 461–62 (Hamilton, J., concurring).
So how does Tapia play out in appellate review of sentenc-
ing transcripts? The parties disagree. Long relies on state-
ments in Shaw and United States v. Spann, 757 F.3d 674 (7th
Cir. 2014), to argue that a district court errs under Tapia when
it imposes a sentence based at all on a defendant’s need for
rehabilitation. Long would have us search sentencing tran-
scripts for even a hint that rehabilitative aims have affected a
prison term. The government argues, on the other hand, that
Tapia prevents a court only from imposing a prison term
based primarily on rehabilitation.
The government’s interpretation of Shaw matches the ma-
jority view among circuits and is truer to Tapia, which allows
sentencing courts to discuss rehabilitation.1 Tapia explained
1 Most circuits (First, Second, Third, Fourth, Fifth, Sixth, and Eighth)
agree that Tapia errors exist only when the record demonstrates that reha-
bilitation was the district court’s primary consideration in determining the
length of the prison term. United States v. Del Valle-Rodriguez, 761 F.3d 171,
174–75 (1st Cir. 2014); United States v. Lifshitz, 714 F.3d 146, 150 (2d Cir.
2013); United States v. Schonewolf, 905 F.3d 683, 691–92 (3d Cir. 2018); United
States v. Bennett, 698 F.3d 194, 201–02 (4th Cir. 2012); United States v. Garza,
706 F.3d 655, 660 (5th Cir. 2013); United States v. Deen, 706 F.3d 760, 768
(6th Cir. 2013); United States v. Replogle, 678 F.3d 940, 943 (8th Cir. 2012).
Three circuits (Ninth, Tenth, and Eleventh) hold that a prison term cannot
be based on any rehabilitative concerns. United States v. Joseph, 716 F.3d
1273, 1281 n.10 (9th Cir. 2013); United States v. Thornton, 846 F.3d 1110, 1116
(10th Cir. 2017); United States v. Vandergrift, 754 F.3d 1303, 1310 (11th Cir.
2014).
No. 22-2275 7
that a district court does not err by “discussing the opportu-
nities for rehabilitation within prison or the benefits of specific
treatment or training programs.” 564 U.S. at 334.
In Shaw, we concluded that the district court stepped over
the Tapia line by selecting the length of the prison sentence
only because “[t]hat period of time will give [the defendant] a
chance, hopefully, … to look at the programs [he would] be
offered in prison in a totally different light.” 39 F.4th at 457.
We explained that the need for rehabilitation “is not applica-
ble when a court imposes a term of imprisonment.” Id.
Shaw went on to clarify, however, that district courts may
mention rehabilitation “as one of several reasons for the im-
posed prison terms” if the context makes clear “that other per-
missible factors were the primary considerations behind the
prison sentences.” Id. at 458. Remand was needed in Shaw be-
cause “the court did not explain how any other considerations
factored into the length chosen,” and the transcript gave the
impression that rehabilitation was the “driving force” for the
decision. Id. at 459; see also id. at 458–59 (emphasizing that
rehabilitation was the “primary reason,” “only reason cited,”
and the “sole basis” for the district court’s choice of sentence).
Long also relies on a comment in Spann that a judge would
violate the rule of Tapia by “basing his sentence even in part”
on the defendant’s need to learn skills in prison. 757 F.3d at
675. But it is hard to reconcile that dictum with the broader
teaching of Shaw. Apart from one non-precedential decision,2
we have not cited Spann for the proposition that a court may
not base a prison sentence even “in part” upon rehabilitation.
Meanwhile, other cases from this circuit and others align with
2 United States v. Elam, 587 F. App’x 337, 338 (7th Cir. 2014).
8 No. 22-2275
Shaw’s focus on whether rehabilitation was the district court’s
primary reason for its decisions about prison.
Both United States v. Burrows, 905 F.3d 1061 (7th Cir. 2018),
and United States v. Lucas, 670 F.3d 784 (7th Cir. 2012), are in-
structive. In each case, we affirmed the defendant’s sentence
because context showed that the sentencing court did not im-
pose the sentence to promote rehabilitation. In Burrows, the
district court explained that the sentence would be “sufficient
… to address the harm” and to give the defendant “time to
avail [him]self of the sex offender treatment as an adult.” 905
F.3d at 1063. We determined that—when read in context with
the court’s other justifications for the sentence (general and
specific deterrence and the seriousness of the offense)—the
district court’s statement did not show that it imposed the
sentence primarily to promote rehabilitation. Id. at 1067–68;
cf. Shaw, 39 F.4th at 458 (vacating sentence where explanation
indicated rehabilitation was “the primary reason for the
length of the imposed prison term”).
In Lucas, the district court said that its sentence would
“serve to hold the defendant accountable, serve as a deterrent,
protect the community, provide the opportunity for rehabili-
tative programs and achieve parity with sentences of simi-
larly-situated offenders.” 670 F.3d at 795. We concluded that
“the mere mention that Lucas would have the opportunity to
take part in rehabilitative programs” was not prohibited un-
der Tapia. Id.The district court’s explanation for its sentence in this case
is close to the courts’ explanations in Burrows and Lucas. Here,
the court did not impose Long’s sentence based primarily on
rehabilitation. After announcing the intended sentence, the
court first noted, without providing any other reason, that the
No. 22-2275 9
sentence “takes into account his criminal history that the
Court believes is understated, as well as the relevant conduct”
in threatening his girlfriend. The court then referred to Long’s
criminal history and the seriousness of his offense throughout
its explanation:
 Long is … coming before the Court for being
a felon in possession of a firearm. This is Mr.
Long’s fourth felony conviction. The defend-
ant has a juvenile delinquency and adult
criminal history. As an adult, he has convic-
tions for operating without a license, posses-
sion of cocaine, forgery, resisting law en-
forcement, driving while suspended, and
the battery with bodily injury to a pregnant
woman.
 The Court agrees with the government that
his criminal history is understated in the
guideline calculation. The Court also consid-
ers as relevant conduct the June 27th inci-
dent in which the defendant threatened his
girlfriend with what she believed to be a
handgun…. And this history of domestic vi-
olence is very concerning to the Court. She
was definitely afraid of this defendant.
 The defendant committed a very serious of-
fense when he carried this loaded and stolen
handgun with cocaine in his possession.
Only in the district court’s final statements were there ref-
erences to Long needing rehabilitation. Cf. Bennett, 698 F.3d at
201 (affirming where district court did not refer to
10 No. 22-2275
rehabilitative needs until the end of its sentencing explanation
and had repeatedly referred to a permissible reason for the
prison term). The court noted here that Long’s “employment
history is limited,” that he “had drug addictions and he’s re-
questing treatment,” and that he “needs some domestic vio-
lence assistance, because … he’s violent.” Still, the court did
not connect these rehabilitative needs to the length of Long’s
proposed prison term.
But the court went on to mention a rehabilitative pro-
gram—vocational training—in connection with the length of
the sentence. The sentence would be “long enough” to allow
Long to “participate in prison industries, as well as learn some
job skills.” In the next sentence, the court said that, with the
other factors it had discussed at length, “Those are the reasons
the Court intends to impose the stated sentence.”
Although the court did not place great emphasis on reha-
bilitation, this passage supports an inference that prison pro-
gramming was at least a reason for the length of the prison
term. Under the strict reading of Tapia that Long urges, one
could find error here. But the transcript overall does not show
that rehabilitation drove the court’s choice of the prison term.3
For these reasons, we doubt that the district court erred,
but we do not need to decide that question. At a minimum,
3 Another indication that the court did not impose Long’s prison sen-
tence to promote rehabilitation can be found in its written Statement of
Reasons. The court noted that the above-guideline sentence was based on
Long’s understated criminal history and history of domestic violence,
without mentioning rehabilitation. The form includes boxes for “drug or
alcohol dependence” and “to provide the defendant with needed educa-
tional or vocational training,” but the court did not check either as an ex-
planation for the prison sentence.
No. 22-2275 11
any mistake would not have been “clear or obvious,” as re-
quired to reverse on plain-error review. Molina-Martinez, 578
U.S. at 194. Whether and to what extent the court weighed re-
habilitation in determining Long’s sentence is not clear from
the transcript, and as noted, the legal standard remains the
subject of debate among circuits. “Plain” errors “cannot be
subtle, arcane, debatable, or factually complicated.” United
States v. Ramirez, 783 F.3d 687, 694 (7th Cir. 2015); accord,
United States v. Holman, 840 F.3d 347, 355 (7th Cir. 2016) (af-
firming sentence on plain-error review; court’s comments
about defendant’s addiction permissibly explained benefits of
available treatments or treated addiction as mitigating factor).
The ambiguity in the district court’s explanation is not sur-
prising. Section 3582(a) and Tapia put district courts in a diffi-
cult position. Courts must ignore rehabilitation as a goal
when imposing or lengthening a prison sentence, even
though they must consider rehabilitation at the same hearing,
when deciding about supervised release and appropriate con-
ditions. See 18 U.S.C. § 3583(c). As we said in Shaw, Tapia
forces courts to demonstrate “their consideration of the of-
fender’s need for rehabilitation while also disavowing that
consideration as a reason for any resulting term of imprison-
ment.” 39 F.4th at 459. We ordinarily want a judge to engage
with a defendant’s individual history and challenges rather
than to apply the Sentencing Guidelines mechanically. In that
engagement, though, Tapia can cast a shadow over thoughtful
comments that address a defendant’s unique circumstances
or encourage a defendant to take advantage of rehabilitative
programs while incarcerated.
We therefore reaffirm the thrust of Shaw: to show a Tapia
error, a defendant must show that the district court focused
12 No. 22-2275
exclusively or disproportionately on rehabilitation in decid-
ing whether to impose a prison term or how long a term
should be. References to rehabilitative programs in prison in
passing or when describing opportunities available while
serving a sentence selected for permissible reasons will not
lead us to find error, let alone plain error. At the same time, it
might be helpful for a sentencing court to include a candid
and explicit disclaimer to the effect that rehabilitation goals
did not affect whether a prison term was imposed or how long
it would be.
The judgment of the district court is AFFIRMED.