United States v. Naramor

FILED
United States Court of Appeals
Tenth Circuit

August 12, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 12-7053

ROBBIE LYNN NARAMOR,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 6:10-CR-00044-JHP-1)

Robert Ridenour, Assistant Federal Public Defender, (Julia L. O’Connell, Federal
Public Defender, and Carl Folsom, III, Research and Writing Specialist, with him
on the briefs), Office of Federal Public Defender, Muskogee, Oklahoma, for
Defendant - Appellant.

Shannon L. Henson, Assistant United States Attorney, (Mark F. Green, United
States Attorney, and Linda A. Epperley, Assistant United States Attorney, with
her on the brief), Muskogee, Oklahoma, for Plaintiff - Appellee

Before HARTZ, MCKAY, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.
 Defendant Robbie Lynn Naramor pleaded guilty in the United States

District Court for the Eastern District of Oklahoma to mailing a threatening

communication to a state judge. See 18 U.S.C. § 876(c). There was no plea

agreement. The district court varied upward from the sentencing range calculated

under the United States Sentencing Guidelines and sentenced Defendant to 60

months’ imprisonment, the statutory maximum for the offense.

Defendant appeals his sentence, arguing (1) that the district court erred in

using a prior state conviction to calculate his criminal-history category because he

had not validly waived his right to counsel in those proceedings; (2) that the court

erred in permitting the government to withdraw a motion to award Defendant a

reduction to his offense level for acceptance of responsibility; (3) that his

sentence was procedurally unreasonable because the court increased his sentence

to serve his rehabilitative needs; and (4) that the sentence was substantively

unreasonable.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. The district court

could properly find that Defendant had not proved that he had been denied the

right to counsel in his state-court proceedings. It did not err in permitting the

government to withdraw its motion to reduce Defendant’s offense level for

acceptance of responsibility because the withdrawal was not motivated by an

unconstitutional purpose and was rationally related to legitimate government

ends. The court did not rely on rehabilitation as a reason for increasing

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Defendant’s sentence. And Defendant’s sentence was substantively reasonable

because of his history of violence.

We provide the necessary factual background as we discuss each issue.

I. VALIDITY OF PRIOR STATE CONVICTION

In calculating Defendant’s criminal-history category, the district court

added two points under USSG § 4A1.1(b) (2009) for a state-court conviction of

assault for which he received a one-year sentence. Defendant complains that he

had no attorney in the state-court proceedings and had not validly waived his right

to counsel. We assume, without deciding, that if he had not validly waived

counsel, the conviction could not justify the two criminal-history points. See

United States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th Cir. 2003) (noting that a

defendant may challenge a prior conviction used for a guidelines calculation if he

was subjected to a “complete denial of counsel,” but that we have not decided

whether such a challenge can be based on an “involuntary or unknowing waiver”

(internal quotation marks omitted)). 1

1
Defendant concedes that he could have received one criminal-history
point under USSG § 4A1.1(c) (2009) (one point “for each prior sentence” of less
than 60 days imprisonment) from the conviction because his sentence included a
fine, and “a federal sentencing court may, consistent with the Sixth Amendment,
take into account a defendant’s previous uncounseled misdemeanor convictions,
together with any sentence that does not result in actual imprisonment.” United
States v. Jackson, 493 F.3d 1179, 1180 (10th Cir. 2007). The one point under
subsection (c) (instead of the two points under subsection (b)) would have
resulted in a lower criminal-history level, thereby reducing Defendant’s
guidelines range.

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 The record reveals the following information about the state-court

proceedings. In July 2008 Defendant was arrested on a charge of assault and

battery–domestic abuse. In the Oklahoma county where Defendant was indicted,

defendants may request court-appointed counsel by filling out an application form

available from the court clerk. Applicants must pay a $40 application fee, but the

application form states that defendants with insufficient funds may seek deferral

of payment from the judge.

The state court’s minutes reflect that at his initial appearance Defendant

was informed that he had a right to appointed counsel if he was indigent. But he

did not apply for court-appointed counsel and represented himself. No signed

waiver of counsel appears in the record, nor is there any record that the judge

found that Defendant had knowingly and voluntarily waived his right to counsel.

Defendant was convicted on the charge at a nonjury trial on November 13, 2008,

and was promptly sentenced to the county jail for one year, with all but 90 days

suspended. The judgment further ordered that Defendant undergo a competency

evaluation while incarcerated, complete any recommended treatment, and

“complete anger management.” R., Vol. 3 at 49 (capitalization omitted). There is

no record that the judge found Defendant competent or that the parties raised any

question of his competency.

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 On January 3, 2009, an evaluator from the Mental Health and Substance

Abuse Centers of Southern Oklahoma (MHSAC) determined that Defendant was

competent. The evaluation concluded:

This evaluation was determined through a one on one interview with
the defendant. . . . Defendant was compliant and open, stated that he
did not have an attorney at his trial because he did not want one. His
appearance was good, clean and no body odor. He was alert but
refused to answer most questions. He demonstrated that he
understood his charges and the consequences.
The defendant did not demonstrate any reason to believe that
he is incompetent . . . .

Id. at 27.

Defendant was released from jail on February 11 and ordered to report for

mental-health treatment, although no reasons were stated for the order. Defendant

did not report and was rearrested on February 24. On April 16 Defendant filed a

request for appointed counsel, which was granted that day. A week later his

counsel filed an application for an independent mental evaluation.

MHSAC conducted a second competency evaluation on June 10. After a

two-hour interview, the evaluator determined that Defendant was competent and

would not be a threat to the life or safety of others if released.

On June 16, however, the judge received a letter from Defendant. Using

vulgar language, it threatened to kill the judge and members of Defendant’s

family. (This letter is the basis for the federal indictment.) Several more

threatening letters from Defendant to the judge followed.

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 In response, the court ordered the Oklahoma Forensic Center of the

Oklahoma Department of Mental Health and Substance Abuse Services to conduct

another evaluation. On September 9 the Center issued its evaluation that

Defendant’s ability to consult with a lawyer or rationally assist in the preparation

of his defense was impaired. It said that Defendant had pressured speech,

grandiose delusions, and disorganized, incoherent thoughts. It concluded that

Defendant should be committed for competency restoration and that his mental

state could be stabilized with treatment and psychotropic medication. Defendant

was admitted to the Oklahoma Forensic Center on November 2. On December 15,

after Defendant had been treated with antipsychotic and mood-stabilizing

medications, the Center conducted another evaluation. It determined that

Defendant had regained competency after treatment, and he was returned to

county jail.

From this information, Defendant argues that his waiver of counsel was not

knowing and voluntary because (1) the trial judge failed to inquire about

Defendant’s understanding of his right to counsel and his willingness to waive it;

(2) he was incompetent during trial and sentencing; and (3) the process for

seeking appointment of counsel was flawed in that (a) the application form for

obtaining counsel was “arduous,” Aplt. Br. at 29, and (b) Defendant was told that

he would have to pay (at least eventually) a $40 application fee, which he could

not afford.

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 The district court rejected Defendant’s argument that he had not validly

waived his right to counsel, specifically noting that it had considered the question

of Defendant’s competency in the state proceedings. “In considering a collateral

attack against a prior conviction, the findings of a district court that the defendant

knowingly and intelligently waived his right to counsel in the prior case are

reviewed for clear error.” United States v. Krejcarek, 453 F.3d 1290, 1296 (10th

Cir. 2006). “[W]e view the evidence and inferences therefrom in the light most

favorable to the district court’s determination.” United States v. Kitchell, 653

F.3d 1206, 1226 (10th Cir. 2011) (internal quotation marks omitted). Even when

the record is clear that the defendant was not represented by counsel, “[o]nce the

prosecution establishes the existence of a conviction, the defendant must prove by

a preponderance of the evidence that the conviction was constitutionally infirm.”

Cruz-Alcala, 338 F.3d at 1197 (internal quotation marks omitted). To overcome

the “presumption of regularity that attaches to final judgments,” the defendant

“may not simply point to a silent or ambiguous record, but must come forward

with affirmative evidence establishing that the prior convictions were obtained in

violation of the Constitution.” Id. (internal quotation marks omitted).

We hold that the district court did not clearly err in using Defendant’s state

sentence in calculating his criminal-history category, thereby implicitly finding

that Defendant had not shown his waiver of counsel to be invalid. First,

Defendant has not pointed to affirmative evidence—only “a silent . . . record,”

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id.—to overcome the presumption that the state court had properly inquired

whether his waiver of counsel was knowing and intelligent. Second, the evidence

would not require a finding that Defendant was incompetent at his state trial and

sentencing. Although he argues that the state court’s ordering a competency

evaluation at sentencing shows that symptoms of Defendant’s mental illness

“were undoubtedly present on the day of the trial and sentencing,” Aplt. Br. at 29,

the initial two evaluations of Defendant in January and June 2009—the ones

closest in time to his plea—determined that he was competent. And even if one

could infer from the state court’s ordering a mental evaluation that it had

concerns about Defendant’s mental health, one would also have to infer from the

court’s imposition of sentence (and failure to vacate the sentence later) that it did

not believe him to have been incompetent at trial and sentencing.

Finally, the district court could also reasonably reject the argument that

Defendant had waived counsel simply because the process of applying for counsel

was too burdensome. The three-page form (with one page of instructions) was

not complex or difficult to fill out: it asked about defendants’ living situation,

attempts to get an attorney, and financial resources. Moreover, Defendant said

during his first competency interview that he did not have counsel at his trial

because he did not want representation, and he successfully applied for court-

appointed counsel after he was rearrested in February 2009. The $40 fee was

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apparently not an impediment. We therefore affirm the district court’s rejection

of Defendant’s claim that he had not validly waived counsel in state court.

II. GOVERNMENT’S WITHDRAWAL OF MOTION FOR
ACCEPTANCE-OF-RESPONSIBILITY REDUCTION

Defendant challenges the government’s withdrawal of its motion to grant

him a one-point reduction for acceptance of responsibility under USSG

§ 3E1.1(b). A defendant may receive up to a three-point reduction in his offense

level for acceptance of responsibility. Under § 3E1.1(a), a defendant is entitled to

a two-level decrease if he “clearly demonstrates acceptance of responsibility for

his offense.” USSG § 3E1.1(a). Under § 3E1.1(b), a defendant may receive an

additional one-level reduction if (1) he qualified for the two-point decrease, (2)

his offense level before receiving that reduction was 16 or greater, and (3) the

government files a motion:

stating that the defendant has assisted authorities in the investigation
or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently.

Id. § 3E1.1(b).

Although the government has “broad discretion” whether to file a motion

for the additional one-point reduction, its “discretion is not unfettered.” United

States v. Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (internal

quotation marks omitted). The court may reject the government’s refusal to file a

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motion under § 3E1.1(b) “if . . . the refusal was (1) animated by an

unconstitutional motive, or (2) not rationally related to a legitimate government

end.” Id. (internal quotation marks omitted). We review for clear error the

district court’s decision whether to reject a refusal. See United States v. Moore,

683 F.3d 927, 930–31 (8th Cir. 2012); United States v. Jaca-Nazario, 521 F.3d

40, 59–60 (1st Cir. 2008).

The relevant facts begin with Defendant’s guilty plea on July 16, 2010.

There was no plea agreement but the government apparently recommended an

offense-level reduction under § 3E1.1(b) for acceptance of responsibility. On

April 20, 2011, the district court held a sentencing hearing. It said that it was

“trying to figure out whether there’s an issue now regarding the defendant’s

competency,” R., Vol. 2 at 96, and asked whether it should order a competency

hearing. Defense counsel responded, “Oh, my client, Mr. Naramor, is

competent,” and said that although he was mentally ill, Defendant had “always

been competent throughout my representation.” Id. at 97. The court asked

defense counsel if he was “totally satisfied” that the competency test had been

met. Id. at 98. Counsel repeated, “I’m satisfied Mr. Naramor is competent.” Id.

The court took Defendant’s sentencing under advisement.

Six days later, however, the sentencing judge received a letter from

Defendant, threatening in violent and obscene language to kill the judge and

himself if he was not sent to the prison in Leavenworth, Kansas. On defense

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counsel’s motion, the court ordered a competency evaluation under 18 U.S.C.

§ 4241(b). In an evaluation dated May 27, 2011, a forensic psychologist

concluded that Defendant was “currently suffering from a mental disease or

defect rendering him mentally incompetent to the extent he is unable to

understand the nature and consequences of the proceedings against him or

properly assist in his defense.” Id., Vol. 3 at 66 (emphasis added). The

evaluation said that Defendant was so impaired that he had difficulty

communicating: “He frequently appeared to be actively psychotic, talking,

singing, and gesturing loudly to empty space in the cell. During the evaluation

period, he was unable to converse clearly, coherently, and rationally.” Id. at

64–65. It did not opine whether Defendant had been incompetent or criminally

responsible when he wrote the letter. The parties did not object to the findings in

the evaluation, and the court ordered Defendant committed for treatment.

In December 2011 a psychiatric evaluation found that Defendant had

regained competency, and he was issued a certificate of competency the following

month. At a hearing on April 3, 2012, the parties stipulated to the evaluation, and

the court found Defendant competent to proceed with sentencing. The

government then filed a sentencing memorandum. It argued that Defendant was

not entitled to the two-point reduction under USSG § 3E1.1(a) and moved to

withdraw its motion to grant Defendant a one-point reduction under § 3E1.1(b).

The court ruled that Defendant should still receive the two-level reduction for

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acceptance of responsibility under § 3E1.1(a) because it did not “appear he had

the ability to willfully obstruct or impede the administration of justice in this

case.” Id., Vol. 2 at 196. But it granted the government’s motion to withdraw the

additional one-point reduction under § 3E1.1(b).

Defendant argues that the government violated his right to due process by

withdrawing the motion because he was incompetent when he wrote the letter.

But Defendant has not identified any constitutionally impermissible factor (such

as his race, religion, or gender) animating the government’s decision. See United

States v. Blanco, 466 F.3d 916, 919 (10th Cir. 2006) (rejecting defendant’s

argument that the prosecutor’s decision not to request a third-point reduction for

acceptance of responsibility interfered with his discovery rights because

defendant did not identify a “constitutionally impermissible reason” motivating

the decision). Also, although the district court apparently believed that Defendant

was not criminally responsible when he wrote the letter, the government could

reasonably believe otherwise. See Moreno-Trevino, 432 F.3d at 1186–87 (“[T]he

government reasonably found [defendant’s] intent to be . . . ‘totally inconsistent

with acceptance of responsibility.’”). After all, Defendant’s attorney thought he

was competent (although mentally ill) less than a week before Defendant wrote

his threatening letter; and the evaluation on which the judge relied did not opine

on Defendant’s criminal responsibility when he wrote the letter and described a

capacity for communication by Defendant that appears to be markedly lower than

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would have been necessary for Defendant to write the letter. Given the

government’s view of Defendant’s criminal responsibility, it could reasonably

decide that his writing a new threatening letter to a judge evinced a failure to

accept responsibility for the very similar crime for which he had pleaded guilty.

Thus, there was no clear error. The district court could properly rule that the

government’s decision—albeit one in which it may well not have concurred—was

rationally related to a legitimate government end and could not be set aside.

III. CONSIDERATION OF REHABILITATIVE NEEDS IN
LENGTHENING SENTENCE

Defendant argues that the district court violated Tapia v. United States, 131

S. Ct. 2382 (2011), by improperly considering his need for mental-health

treatment in choosing to lengthen his sentence. When courts determine what

sentence to impose, they must 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). At the same time, however, they are instructed that

“imprisonment is not an appropriate means of promoting correction and

rehabilitation.” Id. § 3582(a).

Accordingly, Tapia explained that although “[a] court commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of

specific treatment or training programs,” and it can recommend that the Bureau of

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Prisons (BOP) place a defendant in a particular treatment plan, 131 S. Ct. at 2392,

it nevertheless “may not impose or lengthen a prison sentence to enable an

offender to complete a treatment program or otherwise to promote rehabilitation,”

id. at 2393 (emphasis omitted). Therefore we have held that a sentencing court

commits Tapia error when it lengthens a defendant’s sentence “for the express

purpose of giving [the defendant] enough time to participate in a” prison

rehabilitation program. United States v. Mendiola, 696 F.3d 1033, 1042 (10th

Cir. 2012).

We reject Defendant’s Tapia claim. To put that claim in perspective, we

review how rehabilitation arose as an issue at sentencing. The district court first

spoke of rehabilitation in responding to Defendant’s motion for a downward

departure or variance because of his mental illness. The court denied the motion.

It recognized Defendant’s need for treatment, but thought that earlier release

would not improve treatment options:

The sentencing commission has clearly stated that mental and
emotional conditions or diminished capacity may be relevant in
determining whether a departure is warranted if that factor is present
to an unusual degree and distinguishes the case from the heartland of
cases covered by the guidelines in a way that is important to the
statutory purpose of sentencing.
It is apparent the defendant is in need of continued mental
health treatment. The defendant has no income, family, or
community support system available to assist with his needs.
Further, the Court recognizes the failure of the state’s mental health
system to provide necessary mental health services to the defendant.
The mental health treatment available in the Bureau of Prisons would
be instrumental in securing for Mr. Naramor the level of treatment

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 necessary to allow him to become a productive member of society
after his release.

R., Vol. 2 at 197–98. And it concluded that the appropriate sentencing factors did

not justify a downward variance or departure:

In establishing an appropriate sentence for this defendant, the
Court has considered the totality of the circumstances regarding the
offense of conviction, the background, lengthy incarceration, and
mental conditions of the defendant, in addition to the need for
protection of the public. The Court has taken into consideration the
combination of these factors, as well as the government’s position in
this matter.
The Court recognizes its authority to depart or vary from the
advisory sentencing range called for by the application of the
guidelines. Taking into consideration the defendant’s history and
characteristics, as well as the offense conduct, need for just
punishment, deterrence, and protection of the public, the Court
cannot find that the circumstances in this case warrant a departure
pursuant to U.S. Sentencing Guideline Section 5K2.13, or a variance
based on the sentencing factors cited in 18 United States Code,
Section 3553(a). The defendant’s request for departure or variance is
denied.

Id. at 198.

Later the court granted the government’s motion for an upward variance to

the statutory maximum, clearly relying on factors other than the need for prison

rehabilitation programs. It said:

In establishing an appropriate sentence for this defendant, the
Court has considered the totality of the circumstances regarding the
offense of conviction, the background and mental condition of the
defendant, in addition to the need for protection of the public. The
Court has taken into consideration the combination of these factors,
as well as the defendant’s position in this matter. The Court is
sympathetic to the defendant for his unfortunate background. While
some of the threatening letters sent by the defendant could be merely

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 hyperbole, the defendant has a documented history of violence which
includes picking up his grandmother and slamming her on a gravel
driveway, slapping with force and violence a victim, as cited
Paragraph 33 of the presentence report, and threats to kill family
members and judges. His grandmother previously reported that the
defendant was regularly violent. Even after his mental health
diagnosis, the defendant made serious threats of violence against the
original judge in this case. This history of violence, along with the
defendant’s continued inability to control his anger, and history of
being noncompliant with medication at times during his evaluation
with the Bureau of Prisons causes the Court concern that the
defendant poses an actual danger to the public. The Court believes
the public needs to be protected from the defendant.
The Court recognizes its authority to vary from the advisory
sentencing range called for by application of the guidelines. Taking
into consideration the defendant’s history and characteristics, as
well as the offense conduct, need for just punishment, deterrence,
and protection of the public, the Court finds that the circumstances
in this case warrant a variance based on the sentencing factors cited
in 18 U.S.C. Section 3553(a). The government’s request for a
variance is granted.
The Court finds that a sentence of 60 months custody achieves
the purposes of sentencing set out in 18 U.S.C. Section 3553(a).

Id. at 199–200 (emphasis added).

After reading aloud a letter from Defendant to the court requesting

leniency, defense counsel objected that “the Court has imposed a sentence which,

to some degree, I think relies upon a rationale of rehabilitation,” and said that

“the purpose of incarceration can’t necessarily be for treatment or rehabilitation.”

Id. at 203. Neither the court nor the government responded to Defendant’s

objection.

The court announced Defendant’s sentence of 60 months’ imprisonment

and recommended “that the Bureau of Prisons evaluate the defendant and

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determine if he is in need of psychological treatment, and that he be placed in a

facility to appropriately treat any determined mental health problems.” Id. at 206.

It also imposed a term of supervised release, requiring Defendant to “participate

in a mental health treatment program approved by and directed by the U.S.

Probation Office,” and “comply with all treatment directives.” Id. at 207.

Summarizing its reasons for the sentence, the court stated:

The Court imposes this sentence pursuant to 18 U.S.C. Section
3553(a). The Court has considered the U.S. Sentencing Guidelines in
this case and imposes a sentence within the guideline options set
forth in Zone D of the sentencing table. The sentence prescribed by
this Court reflects the seriousness of the offense, promotes respect
for the law, and provides just punishment for the offense. This
sentence affords adequate deterrence to criminal conduct, protects
the public from further crimes of this defendant, and provides
correctional treatment for the defendant in the most effective
manner. The Court has further determined that this sentence is
sufficient, but not greater than necessary, to meet the objectives set
forth in 18 U.S.C. Section 3553(a).

Id. at 208 (emphasis added).

The district court later filled out a “Statement of Reasons” form to explain

why it imposed the chosen sentence. Id., Vol. 4 at 21–24. One section required

the court to check up to seven boxes, each indicating a separate reason for

imposing a sentence outside the advisory guidelines range. The court checked

five of the boxes, one of which stated that a purpose of the variance was “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.

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§ 3553(a)(2)(D)).” Id. at 23. Below the boxes, in paragraph form, the court

explained “the facts justifying a sentence outside the advisory guideline system.”

Id. There, the court repeated almost verbatim its statements at sentencing

granting the upward variance. Emphasizing Defendant’s dangerousness and

“[t]aking into consideration the defendant’s history and characteristics, as well as

the offense conduct, need for just punishment, deterrence, and protection of the

public,” it said that an upward variance to the statutory maximum was warranted.

Id.

We see no Tapia error. The district court properly discussed Defendant’s

need for mental-health treatment when denying Defendant’s motion for a

downward variance. It rejected Defendant’s arguments that his mental illness

warranted leniency, but it did not tie the length of his sentence to his need for

treatment. When granting the upward variance and stating its reasons for the

sentence, the court listed only permissible factors, not rehabilitation. Indeed, the

court recognized that the prison might not find treatment appropriate, and

mandated treatment after his release. Although the court announced that the

entire sentence (including the supervised-release term) would “provide[]

correctional treatment for the defendant in the most effective manner,” id., Vol. 2

at 208, it did not indicate that the term of imprisonment itself was imposed or

lengthened based on Defendant’s treatment needs, and it is proper for courts to

“pursue the goal of rehabilitation in sentencing, for example, in setting the terms

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of supervised release,” Cordery, 656 F.3d at 1106, or recommending treatment in

prison. See Tapia, 131 S. Ct. at 2392.

The only problematic statement by the court is its checking the box on the

Statement of Reasons form to include among its reasons for the upward variance

“to provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner.” R., Vol. 4 at

23. But that ambiguous mark cannot override the court’s explanation at the

sentencing hearing and the paragraph of explanation just below the checked box.

We, like our fellow circuits, recognize the importance of Tapia’s instruction but

we are not looking for stray remarks and technical errors to set aside sentencing

decisions that were certainly Tapia compliant. See United States v. Lifshitz, 714

F.3d 146, 149–150 (2d Cir. 2013) (district court did not commit Tapia error when

it said that it was “important to be sure that [the defendant] continues to get the

type of medical care he is obviously in need of,” because there was “no indication

in the record that the district court based the length of [the defendant]’s sentence

on his need for treatment” and the “colloquy demonstrate[d] that the district

court’s primary considerations . . . were promoting respect for the law and

protecting the public.” (internal quotation marks omitted)); United States v.

Rickert, 685 F.3d 760, 769 (8th Cir. 2012) (no Tapia error when district court

recommended to the BOP that defendant continue to receive mental health

treatment, and said that it thought the BOP was capable of treating the

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defendant’s mental-health problems.); United States v. Replogle, 678 F.3d 940,

943 (8th Cir. 2012) (no Tapia error when district court stated that “one of the

elements of sentencing . . . is to make sure you get the treatment and training and

education necessary to help you go forward,” because “[t]he court made no

statement that the term of 360 months, as opposed to a shorter term, was imposed

for the purpose of facilitating treatment, training, and education.” (internal

quotation marks omitted)); United States v. Gilliard, 671 F.3d 255, 259 (2d Cir.

2012) (no Tapia error when district court said that it was “important . . . that [the

defendant] be sentenced in such a way that [he is] able to address” his

rehabilitative needs because there was “no indication that the district court tied

the length of the sentence to any treatment [the defendant] would receive.”

(internal quotation marks omitted)); United States v. Lucas, 670 F.3d 784, 795

(7th Cir. 2012) (district court did not commit Tapia error by stating that among its

reasons for imposing the sentence was to “provide the opportunity for

rehabilitative programs”; “the mere mention that [the defendant] would have the

opportunity to take part in rehabilitative programs is not prohibited under Tapia.”

(internal quotation marks omitted)).

IV. SUBSTANTIVE UNREASONABLENESS

A sentence is substantively unreasonable if “the length of [the] sentence

was excessive given all the circumstances of the case in light of the factors set

forth in [18 U.S.C.] § 3553(a).” United States v. Gantt, 679 F.3d 1240, 1249

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(10th Cir. 2012) (internal quotation marks omitted). Those factors include (1)

“the nature and circumstances of the offense and the history and characteristics of

the defendant,” 18 U.S.C. § 3553(a)(1); (2) “the need for the sentence imposed”

to “reflect the seriousness of the offense,” “promote respect for the law,” “provide

just punishment for the offense,” “afford adequate deterrence to criminal

conduct,” and “protect the public from further crimes of the defendant,” id.

§ 3553(a)(2); and (3) “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct,”

id. § 3553(a)(6). “Under a deferential abuse-of-discretion standard, we deem a

sentence unreasonable only if it is arbitrary, capricious, whimsical, or manifestly

unreasonable.” Gantt, 679 F.3d at 1249 (internal quotation marks omitted).

Defendant argues that his sentence was substantively unreasonable because

(1) his prior criminal history amounted to a single assault offense; (2) he

committed the offense while “detained without due process in the Bryan County,

Oklahoma jail” and his letters were nothing more than a “cry for attention to a

judge who [Defendant] justifiably believed was simply indefinitely detaining

him,” Aplt. Br. at 34; (3) Defendant had diminished capacity at the time of the

offense because of his mental illness and incompetency; (4) Defendant’s sentence

is too harsh when compared with a sentence received by a defendant in a similar

case in the same court; (5) the sentence would not deter other criminal conduct

because it was “not a highly publicized case” and anyone similarly situated to

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Defendant (or Defendant himself) would not “be able to perceive the sentence and

use it to adjust future behavior,” id. at 36; and (6) Defendant committed the

offenses while incarcerated, so further incarceration will not protect the public. 2

We see no abuse of discretion. The district court reasonably determined

that Defendant’s “history of violence, along with the defendant’s continued

inability to control his anger, and history of being noncompliant with medication

at times during his evaluation with the Bureau of Prisons causes the Court

concern that the defendant poses an actual danger to the public.” R., Vol. 2 at

200.

V. CONCLUSION

We AFFIRM Defendant’s sentence.

2
Defendant also argues that his sentence is substantively unreasonable
because the district court violated Tapia by lengthening his sentence to promote
his rehabilitation. The Sixth Circuit has held that a sentence was substantively
unreasonable because of Tapia error. See United States v. Walker, 649 F.3d 511,
514 (6th Cir. 2011). We do not reach the issue whether a Tapia error may render
a sentence substantively unreasonable because we have held that there was no
Tapia error.

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