United States v. Joseph James

FILED
NOT FOR PUBLICATION JAN 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30033
Plaintiff - Appellee, D.C. No. 2:00-cr-00272-JCC
v.
MEMORANDUM *
JOSEPH JAMES,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Joseph James appeals from the 30-month sentence imposed upon revocation
of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate
and remand based on intervening authority.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. Appellant. P. 34(a)(2).
James contends that the district court procedurally erred by failing to
exercise its discretion in imposing the above-Guidelines sentence without
considering James’s individualized circumstances. The record does not support
this contention.
However, after James’s sentencing, the Supreme Court issued Tapia v.
United States, 131 S. Ct 2382, 2389 (2011). In reliance on that decision, we then
held that “prison, whether as an initial sentence or on revocation of supervised
release, can be imposed and the duration selected only for purposes of retribution,
deterrence, and incapacitation, not rehabilitation.” United States v. Grant, No. 10-
10245, 2011 WL 6016182 at *5 (9th Cir. Dec. 5, 2011). Because we cannot
ascertain on the record before us whether the district court based its sentence in
part on James’s need for rehabilitation (and a longer sentence in order to qualify
him for intensive drug abuse treatment), and the district did not have the benefit of
Tapia and Grant, we vacate and remand for resentencing.
VACATED AND REMANDED.
2 11-30033