United States v. Tapia-Romero

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
FELIPE DANIEL TAPIA-ROMERO, a/k/a No. 05-50121
David Perales Meraz, Daniel Pato,
Felipe Daniel Pato, Felipe Romero  D.C. No.
CR-04-00327-DSF
Pato, Felipe Romero, Felipe
Daniel Romero, Daniel Sanchez, OPINION
Danny Tapia, Felipe Tapia, Felipe
Daniel Tapia, Felipe Romero
Tapia, Felipe Daniel Topia,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
February 10, 2006—Pasadena, California
Submission deferred November 22, 2006
Resubmitted April 24, 2008
Filed May 1, 2008
Before: Robert R. Beezer, Thomas G. Nelson, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Thomas G. Nelson
4721
UNITED STATES v. TAPIA-ROMERO 4723
COUNSEL
Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Ranee A. Katzenstein, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
T.G. NELSON, Circuit Judge:
In this opinion, we hold that the district court correctly con-
cluded that the cost to society of imprisoning a defendant is
not a factor to be considered in determining the appropriate
length of a defendant’s term of imprisonment under 18 U.S.C.
§§ 3553(a) and 3582(a). Accordingly, we affirm.1
Background
Felipe Daniel Tapia-Romero pled guilty to being an illegal
alien found in the United States after deportation. At sentenc-
ing, defense counsel argued that the district court should con-
sider imposing a shorter term of imprisonment due to the cost
of imprisoning Tapia-Romero. Defense counsel argued that
this cost was a factor the court had to consider under 18
1
We address the other issues Tapia-Romero raises in an accompanying
memorandum disposition.
4724 UNITED STATES v. TAPIA-ROMERO
U.S.C. § 3553(a) in determining the length of Tapia-
Romero’s term of imprisonment.
The district court concluded that the cost of imprisonment
was not an appropriate consideration under § 3553(a),
explaining: “I don’t really think that’s for an Article III
judge[ ] to decide to save the system money, is it? It’s an
excellent argument. I just don’t think that’s really something
that I should be considering.” Tapia-Romero appeals this
decision of the district court.
Standard of Review
By asserting that the district court misinterpreted § 3553(a),
Tapia-Romero raises a question of statutory interpretation.
We review such questions de novo. See United States v.
Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007).
Discussion
The district court’s interpretation of § 3553(a) was correct.
The plain language of § 3553(a) and the overall legislative
scheme make it clear that Congress has not made the cost to
society of a defendant’s imprisonment a factor a sentencing
judge should consider under § 3553(a) in determining the
appropriate term of imprisonment under 18 U.S.C. § 3582(a).2
Section 3553(a) requires a sentencing court to consider the
following factors in imposing a sentence:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
2
Section 3582(a) requires a sentencing court, in determining the appro-
priate term of imprisonment, to “consider the factors set forth in section
3553(a) to the extent they are applicable, recognizing that imprisonment
is not an appropriate means of promoting correction and rehabilitation.”
18 U.S.C. § 3582(a)
UNITED STATES v. TAPIA-ROMERO 4725
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the
offense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to crimi-
nal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established [by the sentencing guidelines] . . . ;
(5) any pertinent policy statement [issued by the
Sentencing Commission] . . . ;
(6) the need to avoid unwarranted sentence dispari-
ties among defendants with similar records who have
been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
18 U.S.C. § 3553(a).
[1] Tapia-Romero argues that two provisions of § 3553(a)
require—or at least allow—a sentencing court to consider the
cost to society of imprisoning a defendant. The first provision
Tapia Romero relies on is § 3553(a)(2)(D), which requires the
4726 UNITED STATES v. TAPIA-ROMERO
court to consider “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.” 18 U.S.C. § 3553(a)(2)(D). The sec-
ond provision Tapia-Romero relies on is § 3553(a)(3), which
requires the court to consider “the kinds of sentences avail-
able.” 18 U.S.C. § 3553(a)(3).
[2] Neither of the provisions relied on by Tapia-Romero
require or allow sentencing courts to consider the cost to soci-
ety of imprisoning a defendant. And our review of the remain-
ing provisions of § 3553(a) leads us to the same conclusion—
§ 3553(a) neither requires, nor allows, a court to consider the
cost of imprisonment in determining the appropriate length of
a defendant’s term of imprisonment.
[3] Another statutory provision relevant to sentencing, 18
U.S.C. § 3572, confirms our conclusion that § 3553(a) does
not allow consideration of the cost of imprisonment. Section
3572 governs fines imposed as part of a sentence. It provides,
in relevant part: “In determining whether to impose a fine,
and the amount, time for payment, and method of payment of
a fine, the court shall consider, in addition to the factors set
forth in section 3553(a) . . . the expected costs to the govern-
ment of any imprisonment, supervised release, or probation
component of the sentence . . . .” 18 U.S.C. § 3572(a), (a)(6).
[4] For two reasons, § 3572(a) is helpful to our inquiry.
First, § 3572(a) clearly implies that the § 3553(a) factors do
not include considerations of the cost of a defendant’s impris-
onment. This is because § 3572(a) expressly incorporates the
§ 3553(a) factors, but then finds it necessary to list additional
factors for the court to consider, including the additional fac-
tor of “the expected costs to the government of any imprison-
ment . . . .” 18 U.S.C. § 3572(a)(6). If the cost of a
defendant’s imprisonment was a factor to consider under
§ 3553(a), it would not be necessary to add it as an additional
factor in § 3572(a). See, e.g., United States v. Wenner, 351
UNITED STATES v. TAPIA-ROMERO 4727
F.3d 969, 975 (9th Cir. 2003) (“It is a fundamental canon of
statutory construction that a statute should not be construed so
as to render any of its provisions mere surplusage.”). The
express inclusion of cost of imprisonment as a consideration
in § 3572(a) thus demonstrates that cost of imprisonment is
not a consideration under § 3553(a).
Second, the express inclusion of cost of imprisonment as a
consideration in § 3572(a) demonstrates that when Congress
intended to include cost as a consideration, it did so very
clearly. We thus decline Tapia-Romero’s invitation to imply
such a consideration into the language of § 3553(a).
[5] The district court properly concluded that the cost to
society of a defendant’s imprisonment is not to a factor a sen-
tencing judge can consider under 18 U.S.C. § 3553(a) in
determining the appropriate term of imprisonment under 18
U.S.C. § 3582(a).
AFFIRMED.