In Re Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2009 Decided July 28, 2009

No. 08-3029

IN RE: SEALED CASE

______

Appeal from the United States District Court
for the District of Columbia
(No. 1:07cr00015-JDB-01)
______

Jonathan Zucker argued the cause and filed the briefs for
appellant.

Nicholas P. Coleman, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Elizabeth
Trosman, and Kenneth F. Whitted, Assistant U.S. Attorneys.

Before: HENDERSON, TATEL, and GARLAND, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.

TATEL, Circuit Judge: Sentenced to eleven years in
prison after pleading guilty to unlawful distribution of 2.1
grams of heroin, defendant appeals, arguing that the district
 2
court improperly sought to promote his rehabilitation through
a longer term of imprisonment. Although defendant’s failure
to object to the district court’s reasoning at sentencing limits
us to plain error review, we agree that 18 U.S.C. § 3582(a)
expressly prohibits sentencing courts from treating
rehabilitation as a reason for imposing a longer term of
imprisonment. In light of this clear statutory provision, and
because this case also meets the remaining elements of the
stringent plain error test, we vacate the sentence and remand
for resentencing. Also, in accordance with our general
practice and the government’s concession, we remand
defendant’s additional claim that he received ineffective
assistance of counsel.

I.
Defendant, a 56-year-old drug addict, sold $20 worth of
heroin to an undercover officer. Approached by officers
shortly after the sale, defendant discarded 32 additional
ziplock bags of a substance that tested positive for opiates.
District of Columbia authorities arrested defendant and later
charged him in the Superior Court of the District of Columbia
with unlawful distribution of heroin and possession of heroin
with intent to distribute. After protracted plea negotiations,
defendant accepted a cooperation agreement entailing transfer
of his case to the United States District Court for the District
of Columbia, where he pled guilty to unlawful distribution,
see 21 U.S.C. § 841(a)(1), (b)(1)(C). Defendant’s subsequent
attempts at cooperation produced little of use to the
government and ultimately ended when he failed a drug test.

Defendant’s crime of distribution of less than five grams
of heroin set his federal Sentencing Guidelines base
offense level at 12. U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1(c)(14) (2007). Although the district court based the
offense level on only the 2.1 grams of heroin involved in the
 3
incident for which defendant was arrested, defendant’s
criminal history category of VI reflected his long-term
involvement with heroin dealing and related crimes. Because
defendant’s cooperation efforts were ultimately unfruitful, the
government declined to request a downward departure for
substantial assistance, id. § 5K1.1, but it did acknowledge that
defendant was entitled to credit for acceptance of
responsibility, id. § 3E1.1 (providing for two-level acceptance
of responsibility credit plus additional one-level decrease in
certain circumstances for base offense levels of 16 or higher).
Finding the cooperation efforts in good faith, the district court
agreed that an acceptance of responsibility credit was
warranted. Together defendant’s base offense level, criminal
history category, and acceptance of responsibility credit
would have yielded a guidelines range of 24 to 30 months.
Defendant’s prior felony convictions, however, triggered the
sentence enhancement for career offenders, id. § 4B1.1, which
automatically increased his guidelines range to 151 to 188
months.

Having calculated this advisory guidelines range, the
district court weighed several of the sentencing factors listed
in 18 U.S.C. § 3553(a). Beginning with the nature of the
offense, the district court, though recognizing the seriousness
of heroin dealing, acknowledged that the specific transaction
for which defendant was arrested involved only a small
quantity of drugs. The district court also considered
defendant’s lengthy criminal history, which it attributed to his
drug addiction, saying:

The most important parts of that history add up
simply to the fact that the defendant has been
involved in using drugs and in criminal activity that
is in conjunction with that use, the heroin
distribution trade and small—not insignificant but
 4
small thefts of various kinds, presumably to help
support the habit.

Sentencing Tr. 29. The district court viewed this pattern of
recidivism as relevant to one of the section 3553(a)
sentencing factors, namely, the need to protect the public
from further criminal activity. See § 3553(a)(2)(C). Next, in
a colloquy central to the issue before us, the district court
turned to “another factor under 3553(a),” stating:

I do think that the defendant may benefit from some
of the programs and educational training and the
medical treatment that is available in the federal
prison system, and that would actually be more
available and more useful for the defendant over a
somewhat longer period of time than it would over a
very short period of time.

Sentencing Tr. 31–32. Before imposing the sentence, the
district court reiterated the relevant factors, including “the
need . . . to provide the defendant with needed educational or
vocational training or other treatment in the correctional
system in an effective manner.” Id. at 32; see §
3553(a)(2)(D). While believing that a “substantial” sentence
was called for, the district court reassured defendant that his
sentence would allow “the prospect of release at some point in
the future.” Sentencing Tr. 33. In the end, the district court
concluded that a below-guidelines sentence of 132 months
was “sufficient but not greater than is necessary to comply
with the purposes of sentencing as set out in the various
factors in Section 3553(a).” Id. After recommending that
defendant be admitted to the prison’s “500-hour” drug
treatment program, id. at 34, the district court encouraged him
to take advantage of drug treatment and educational programs
during his time in prison, id. at 37.
 5
Defendant now appeals, arguing that the district court
improperly treated imprisonment as a means of promoting
rehabilitation and consequently imposed a longer prison term.
Defendant also claims that he received ineffective
assistance of counsel during plea negotiations. Accepting the
government’s concession that we should remand the latter
claim for an evidentiary hearing under United States v.
Rashad, 331 F.3d 908, 909–910 (D.C. Cir. 2003), we need
address only the sentencing challenge.

II.
Because defendant’s trial counsel failed to object at
sentencing, we review his sentencing claim for plain error.
United States v. Mouling, 557 F.3d 658, 665 (D.C. Cir. 2009).
Under this standard, defendant must show that the error
occurred, that it was “plain,” and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). If these three elements are met, we may reverse only
if we find that the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and brackets omitted).

Defendant’s sentencing challenge involves the interplay
between two statutory provisions governing criminal
sentencing, both of which refer to the role of rehabilitation.
The first, section 3553, is the familiar provision governing all
sentencing determinations. Entitled “[i]mposition of a
sentence,” it directs sentencing courts to “impose a sentence
sufficient but not greater than necessary” to comply with four
enumerated purposes of sentencing. § 3553(a). Subsections
(a)(2)(A), (B), and (C) set forth the goals of providing just
punishment, deterring further crime, and protecting the public.
Id. And central to the issue before us, subsection (a)(2)(D),
directs sentencing courts to consider the need for the sentence
“to provide the defendant with needed educational or
 6
vocational training, medical care, or other correctional
treatment in the most effective manner.” § 3553(a)(2)(D).

Sentencing courts must also abide by the second
provision at issue here, section 3582, which covers
“[i]mposition of a sentence of imprisonment” and sets forth
the “[f]actors to be considered in imposing a term of
imprisonment,” § 3582(a). It provides:

The court, in determining whether to impose a term
of imprisonment, and, if a term of imprisonment is to
be imposed, in determining the length of the term,
shall consider the factors set forth in section 3553(a)
to the extent that they are applicable, recognizing
that imprisonment is not an appropriate means of
promoting correction and rehabilitation.

Id.

Relying on section 3582(a), defendant argues that a
sentencing court errs if it imposes a longer term of
imprisonment as a means of rehabilitating a defendant.
According to defendant, the district court here did just that, as
evidenced by its statement that defendant “may benefit from
some of the programs and educational training and the
medical treatment that is available in the federal prison
system, and that would actually be more available and more
useful for [him] over a somewhat longer period of time than it
would over a very short period of time.” Sentencing Tr. 31–
32.

For its part, the government sees no error in the district
court’s approach. Although acknowledging that section
3582(a) bars a sentencing court from choosing a prison term
over a non-incarceration sentence because of the rehabilitative
 7
programs available in prison, the government insists that once
the sentencing court makes the initial decision to imprison a
defendant, it may then treat those same rehabilitative concerns
as a reason to impose a longer term of imprisonment.
According to the government, this interpretation of section
3582(a) avoids a conflict with section 3553(a)(2)(D), which
requires sentencing courts to consider rehabilitation as a
purpose of sentencing.

The issue before us—whether section 3582(a) allows a
sentencing court to treat rehabilitation as a reason for
lengthening a defendant’s prison term—has divided our sister
circuits. The Ninth has held that although section 3582(a)
bars sentencing courts from choosing prison rather than a
non-incarceration sentence to promote rehabilitation, it allows
sentencing courts to select a longer prison term to promote
rehabilitation. See United States v. Duran, 37 F.3d 557, 561
(9th Cir. 1994). The Eighth Circuit has also adopted this
interpretation. See United States v. Hawk Wing, 433 F.3d
622, 629–30 (8th Cir. 2006); see also United States v.
Giddings, 37 F.3d 1091, 1096–97 (5th Cir. 1994) (noting in a
case involving revocation of supervised release under §
3583(g) that courts making an initial sentencing decision can
impose a longer term of imprisonment for rehabilitation);
United States v. Jackson, 70 F.3d 874, 879–80 & n.6, (6th Cir.
1995) (citing Duran in a revocation of supervised release
case, although acknowledging that “it is difficult to see a
distinction between the imposition of a sentence of
imprisonment and the length of imprisonment”). By contrast,
the Third Circuit has held that section 3582(a)’s bar on
promoting rehabilitation through imprisonment applies to
both decisions—whether to imprison a defendant at all and
whether to impose a longer prison term. United States v.
Manzella, 475 F.3d 152, 156–61 (3d Cir. 2007). The Second
Circuit has reached the same result, though in an unpublished
 8
opinion. United States v. Yehuda, 238 F. App’x 712, 713 (2d
Cir. 2007) (“[R]ehabilitation . . . is not a permissible basis for
increasing [defendant’s] term of imprisonment.”); see also
United States v. Tsosie, 376 F.3d 1210, 1213–14 (10th Cir.
2004) (acknowledging that “the initial term of imprisonment
is always limited by 18 U.S.C. § 3582(a)”); United States v.
Brown, 224 F.3d 1237, 1242 (11th Cir. 2000) (noting that
sentencing courts may not “extend the term of imprisonment
. . . for the purpose of providing . . . rehabilitative treatment”
(quoting United States v. Harris, 990 F.2d 594, 597 (11th Cir.
1993) (interpreting 28 U.S.C. § 994(k)))).

Given the plain language of sections 3553(a) and
3582(a), we agree with the Third and Second Circuits that
sentencing courts may not treat rehabilitation as a reason for a
longer term of imprisonment. Section 3582(a) expressly
states that “the court . . . in determining the length of the term
[of imprisonment], shall consider the factors set forth in
section 3553(a) to the extent that they are applicable,
recognizing that imprisonment is not an appropriate means of
promoting correction and rehabilitation.” § 3582(a)
(emphasis added). Congress thus spoke clearly: in deciding
how long to keep a defendant in prison, sentencing courts
may not use imprisonment as a means of rehabilitation.

Section 3582(a)’s straightforward language leaves no
room for the government’s distinction between selecting
prison rather than a non-prison sentence and imposing a
longer term of imprisonment. As a textual matter, the
government nowhere explains how the phrase “recognizing
that imprisonment is not an appropriate means of promoting
. . . rehabilitation” can modify section 3582(a)’s first clause
(“in determining whether to impose a term of imprisonment”)
but not its second (“in determining the length of the term”).
As a matter of logic, the government’s position is likewise
 9
untenable. If, as the government concedes, imprisonment is
not an appropriate means of promoting rehabilitation, how
can more imprisonment serve as an appropriate means of
promoting rehabilitation? This case demonstrates the point
nicely. Under the government’s theory, the district court
would err by choosing imprisonment rather than, say,
probation to help defendant “benefit from some of the
programs and educational training and the medical treatment
that is available in the federal prison system,” Sentencing Tr.
31, yet would commit no error by choosing to keep defendant
in prison longer to benefit from those same programs that
would be “more available and more useful for [him] over a
somewhat longer period of time than . . . over a very short
period of time,” id. at 31–32.

Attempting to escape section 3582(a)’s clear language,
the government urges us to follow the Ninth Circuit’s
reasoning, i.e., that if Congress had wanted to bar
consideration of rehabilitation as a reason to increase a
sentence it “could have enacted a statute that admonished
judges to recognize ‘that imprisonment or the length of
imprisonment is not an appropriate means of promoting
correction and rehabilitation.’” Duran, 37 F.3d at 561. But
Congress had no need to provide such clarification given the
statute’s express instruction that sentencing courts must
recognize the inappropriateness of imprisonment for
rehabilitation both in choosing imprisonment rather than a
non-incarceration sentence and “in determining the length of
the term.” § 3582(a). As the Third Circuit explained, “[t]he
possibility that a clearly worded statute might be even more
clearly worded does not negate the fact that it is already
clear.” Manzella, 475 F.3d at 160. Nor would the addition of
the phrase “or the length of imprisonment” add anything that
the term “imprisonment” on its own doesn’t already convey.
According to the dictionary, “imprisonment” means “[t]he
 10
action of imprisoning, or [the] fact or condition of being
imprisoned.” OXFORD ENGLISH DICTIONARY (2d ed. 1989)
(emphasis added). In context as well, “imprisonment”
encompasses the decision to imprison a defendant for a longer
period of time. A sentencing court deciding to keep a
defendant locked up for an additional month is, as to that
month, in fact choosing imprisonment over release. If the
sentencing court adds the extra month to make a defendant
eligible for a prison drug treatment or educational program, it
fails to recognize that “imprisonment” is not an appropriate
means of promoting rehabilitation. Indeed, the Ninth Circuit
itself, although not expressly overruling Duran, later cited
section 3582(a) in support of its holding that a sentencing
court abused its discretion in ordering consecutive rather than
concurrent sentences based on the defendant’s need for
mental health treatment. United States v. Kikuyama, 109 F.3d
536, 539 (9th Cir. 1997). In so doing, it even described
section 3582(a) as standing for the proposition that “in
determining length of term of imprisonment, court must
‘recogniz[e] that imprisonment is not an appropriate means of
promoting correction and rehabilitation.’” Id. (emphasis
added) (quoting § 3582(a)).

In a further effort to support its distinction between the
decision to sentence a defendant to prison at all and the
selection of a longer term, the government points to section
3582’s legislative history. It highlights the following passage
in the Senate Report:

“[Section 3582(a)] specifies, in light of current
knowledge, that the judge should recognize, in
determining whether to impose a term of
imprisonment, ‘that imprisonment is not an
appropriate means of promoting correction and
rehabilitation.’ This caution concerning the use of
 11
rehabilitation as a factor to be considered in
imposing sentence is to discourage the employment
of a term of imprisonment on the sole ground that a
prison has a program that might be of benefit to the
prisoner. This does not mean, of course, that if a
defendant is to be sentenced to imprisonment for
other purposes, the availability of rehabilitative
programs should not be an appropriate consideration,
for example, in recommending a particular facility.”

Appellee’s Br. 23–24 (quoting S. REP. NO. 98-225, at 119
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3302)
(emphasis added by Appellee). Even if legislative history
could override the statute’s plain text—which of course it
cannot—this excerpt provides no support for the
government’s position. That sentencing courts may consider
rehabilitation in recommending a particular facility hardly
suggests that they may keep a defendant in that or any other
prison facility for a longer period of time for rehabilitative
purposes.

The government’s warning against creating a conflict
between sections 3553(a) and 3582(a) fares no better. Our
reading of section 3582(a) respects its plain text and gives
effect to each of its clauses, while allowing section 3582(a)
and section 3553(a) to play their unique roles in the statutory
scheme. We thus agree with the Third Circuit that section
3582 has a narrower scope than section 3553: the former deals
specifically with imprisonment, while the latter addresses
imposition of a sentence, a broader concept that encompasses
imprisonment as well as probation and fines. See Manzella,
475 F.3d at 158; see also § 3553(a)(3) (instructing sentencing
courts to consider “the kinds of sentences available”); 18
U.S.C. § 3551 (listing as “[a]uthorized sentences” probation,
fines, and imprisonment). Together, sections 3582(a) and
 12
3553(a) instruct sentencing courts to consider rehabilitation as
one of the purposes of sentencing but bars them from
seeking to achieve rehabilitation through imprisonment. See
Manzella, 475 F.3d at 158; see also United States v. Maier,
975 F.2d 944, 946–47 (2d Cir. 1992) (explaining the
difference between “sentence” under § 3553(a) and
“imprisonment” under § 994(k), which provides that the
sentencing guidelines must “reflect the inappropriateness of
imposing a sentence to a term of imprisonment for the
purpose of rehabilitating the defendant”); S. REP. NO. 98-225,
at 76–77 (explaining that the committee had rejected the view
that rehabilitation should be eliminated completely as a
purpose of sentencing, but that it “[i]nstead . . . retained
rehabilitation and corrections as an appropriate purpose of a
sentence, while recognizing . . . that ‘imprisonment is not an
appropriate means of promoting correction and
rehabilitation,’” and noting that “the purpose of rehabilitation
is still important in determining whether a sanction other than
a term of imprisonment is appropriate in a particular case”
(footnotes omitted)). Thus, far from creating the conflict the
government fears, these provisions harmonize comfortably
with each other in a rational scheme that retains the
sentencing goal of rehabilitation but pursues this goal through
means other than incarcerating a defendant or keeping him in
prison longer.

Here, the district court stated that the defendant would
benefit from prison rehabilitation programs over a “somewhat
longer period of time,” indicating that it viewed rehabilitation
as a reason to lengthen a term of imprisonment. The court
thus failed to “recognize[e] that imprisonment is not an
appropriate means of promoting correction and
rehabilitation,” § 3582(a). Of course, nothing in section
3582(a) prohibits sentencing courts from considering
rehabilitative needs for other reasons, such as in selecting a
 13
shorter term of imprisonment or in imposing a non-
incarceration sentence. Such decisions would fully comply
with the statutory command to “recognize[e] that
imprisonment is not an appropriate means of promoting
rehabilitation,” § 3582(a).

This brings us, then, to the plain error test’s second
element: whether the error was “plain.” Generally an error is
plain if it contradicts circuit or Supreme Court precedent.
Even absent binding case law, however, an error can be plain
if it violates an “absolutely clear” legal norm, “for example,
because of the clarity of a statutory provision.” United States
v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993). This is just such
a case. As explained above, section 3582(a) speaks with
absolute clarity on this point. See supra at 8–9; cf. Olano,
507 U.S. at 734 (“plain” is synonymous with “clear” or
“obvious”).

In the government’s view, the circuit split on this issue
necessarily means that the error could not have been plain.
We disagree. To be sure, as our dissenting colleague points
out, see Dissenting Op. at 3–4, we have recognized that a
division of authority on a given point may provide cause to
question the plainness of an error, but we did so in cases
lacking the kind of clear statutory language at issue here. See,
e.g., United States v. Baldwin, 563 F.3d 490, 491–92 (D.C.
Cir. 2009) (involving the question whether a district court
may “delegate[] its authority to determine [defendant’s]
restitution obligations”); United States v. Andrews, 532 F.3d
900, 908–909 (D.C. Cir. 2008) (involving the question
whether a district court’s use of a later version of the
sentencing guidelines violated the ex post facto clause);
United States v. Sullivan, 451 F.3d 884, 895–96 (D.C. Cir.
2006) (involving the question whether a court-imposed ban on
internet use as a condition of supervised release fits the broad
 14
statutory goals enumerated in § 3583). Moreover, we have
not hesitated to deem an error involving clear language plain,
even when another circuit considered the provision
ambiguous enough to defeat a finding of plain error. United
States v. Joaquin, 326 F.3d 1287, 1292–93 (D.C. Cir. 2003).

Moving on to the plain error test’s third inquiry, we ask
whether the error affected the defendant’s “substantial rights.”
To show an impact on “substantial rights” in the sentencing
context, the defendant “‘must show a reasonable likelihood
that the sentencing court’s obvious errors affected his
sentence.’” Olano, 507 U.S. at 734 (quoting United States v.
Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)). As we have held,
the reasonable likelihood standard “is somewhat more relaxed
in the area of sentencing than it is for trial errors, since ‘a
resentencing is nowhere near as costly or as chancy an event
as a trial.’” United States v. Gomez, 431 F.3d 818, 822 (D.C.
Cir. 2005) (quoting Saro, 24 F.3d at 288).

Given this standard, we conclude that defendant has
shown a reasonable likelihood that his sentence would
have been shorter had the district court properly viewed
imprisonment as inappropriate for promoting rehabilitation.
The district court expressly stated that it believed that
defendant would benefit from the prison system’s
rehabilitative programs over a “somewhat longer period of
time.” Sentencing Tr. 31–32. Even absent such an express
link to sentence duration, we have found direct invocation of
an impermissible sentencing factor to establish a reasonable
likelihood of prejudice. See Joaquin, 326 F.3d at 1293–94
(holding that the district court’s specific reference to the
impermissible factor of defendant’s prior arrest record before
concluding that defendant posed a risk of recidivism was
sufficient to establish prejudice).
 15
The government argues that even absent error, defendant
was unlikely to have received a “very short” sentence. This
misses the point. The question isn’t whether defendant’s
prison term would have been drastically shorter—just whether
it was reasonably likely that the prison term would not have
been as long had the district court considered only permissible
factors. To be sure, as the government and our dissenting
colleague emphasize, see Dissenting Op. at 4, the district
court considered factors other than rehabilitation, such as the
seriousness of the offense and defendant’s criminal history
and pattern of recidivism. But the court’s invocation of these
factors hardly negates its express reliance on prison
rehabilitation programs, especially given its repeated
references to defendant’s drug problems and its view that
defendant’s criminal history stemmed largely from his drug
addiction.

Having determined that defendant has demonstrated error
that was plain and that affected his substantial rights, we must
finally decide whether the error seriously affects the fairness,
integrity or public reputation of judicial proceedings such that
we should exercise our discretion to correct it. Olano, 507
U.S. at 732. We have repeatedly opted to correct plain
sentencing errors that, if left uncorrected, would result in a
defendant serving a longer sentence. See, e.g., United States
v. Watson, 476 F.3d 1020, 1024 (D.C. Cir. 2007) (“[L]eaving
in place an error-infected sentence that would have been
materially different absent error and that could be readily
corrected would seriously affect the fairness, integrity, and
public reputation of judicial proceedings.” (alteration in
original) (internal quotation marks omitted)). The same is
true here. We cannot say that keeping defendant in prison
longer for improper reasons would leave the fairness,
integrity, and public reputation of judicial proceedings
unscathed. See United States v. Coles, 403 F.3d 764, 767
 16
(D.C. Cir. 2005) (“We are also convinced that, if the District
Court’s error was prejudicial, the error would ‘seriously
affect[ ] the fairness, integrity, or public reputation of judicial
proceedings.’ As the Seventh Circuit aptly observed, ‘[i]t is a
miscarriage of justice to give a person an illegal sentence that
increases his punishment, just as it is to convict an innocent
person.’” (quoting United States v. Paladino, 401 F.3d 471,
483 (7th Cir. 2005)). Given the facts of this case, we see no
“countervailing factors,” Puckett v. United States, 129 S. Ct.
1423, 1433 (2009), to suggest that we should decline to
exercise our discretion to correct the sentencing error.

According to the government, “the remote possibility that
appellant may serve a slightly longer sentence in order to help
him overcome his drug dependency is hardly the kind of
‘error’ that impugns the judicial process, given that addiction
has been the primary cause of appellant’s criminal behavior.”
Appellee’s Br. at 30. This argument amounts to nothing more
than a disagreement with Congress’s determination that
sentencing courts may not attempt to rehabilitate a defendant
through imprisonment. Indeed, seeking to meet a defendant’s
rehabilitative needs in a way that Congress has deemed
inappropriate, see § 3582(a), represents exactly the kind of
error that impugns the judicial process. Cf. Joaquin, 326 F.3d
at 1294 (reversing a sentence under plain error review
because “reliance on information expressly deemed unreliable
by the Sentencing Commission seriously affects the fairness
and integrity of judicial proceedings”).

Because this case meets the standard for plain error, we
vacate defendant’s sentence and remand for further
proceedings consistent with this opinion. In doing so, we
emphasize that this disposition in no way requires the district
court to shorten the sentence on remand. Rather, the district
court remains free to resentence the defendant appropriately,
 17
either by reimposing the same sentence based solely on
permissible factors or by resentencing if in fact it did lengthen
the sentence to promote rehabilitation.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring in
part and dissenting in part:
Although I agree with my colleagues that we should remand
the defendant’s Sixth Amendment claim for an evidentiary
hearing, I do not agree with the majority’s conclusion that his
sentence should be vacated and remanded for resentencing. For
the following reasons, I would affirm the sentence.
In reviewing a sentence for plain error, we have held that
“[p]lain error exists ‘where (1) there is error (2) that is plain and
(3) that affects substantial rights and (4) the court of appeals
finds that the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” United States v.
Brown, 516 F.3d 1047, 1052 (D.C. Cir. 2008) (quoting United
States v. Andrews, 479 F.3d 894, 896 (D.C. Cir. 2007) (internal
quotations omitted)). The defendant alleges that the district
court sentenced him to a longer term of imprisonment in order
to promote his rehabilitation and argues that doing so constituted
plain error. At sentencing, the district court stated that the
defendant’s offense was “a serious drug crime contributing to
the blight on the community from drugs.” Sentencing Tr., In re
Sealed Case, Cr. No. 07-0015, at 27 (D.D.C. Apr. 16, 2008)
(Sentencing Tr.). The court characterized the defendant’s
criminal history as “lengthy,” id. at 28, and noted his “trend” of
“coming out of some criminal justice context, whether it be
incarceration or supervision . . . , and still engaging in criminal
activity . . . . [including] incarcerat[ion] for violations of his
conditions of [supervised] release,” id. at 30 (emphasis added).
The court also found relevant the defendant’s age of 58 years.
Id. at 29. The defendant’s lengthy and recidivist history “l[ed]
the Court to observe, consistent with one of the factors under
3553(a), that there is a need to protect the public from further
criminal activity.” Id. at 30. At the close of its discussion of the
factors it deemed relevant to selecting a sentence, the court
stated:
Now, with respect to another factor under 3553(a), I do
think that the defendant may benefit from some of the
 2

programs and educational training and the medical
treatment that is available in the federal prison system,
and that would actually be more available and more
useful for the defendant over a somewhat longer period
of time than it would over a very short period of time.
Id. at 31-32; see 18 U.S.C. § 3553(a)(2)(D). The court then
announced the sentencing guidelines range as 151 to 188
months. Sentencing Tr. at 32. It iterated:
Again, I have assessed this based on all the factors
under Section 3553(a), including in particular those in
3553(a)(2)(A), which are the need to reflect the
seriousness of the offense, promote respect for the law,
provide just punishment for the offense, to afford
adequate deterrence both to the defendant and others,
and to protect the public from further crimes of the
defendant and to provide the defendant with needed
educational or vocational training or other treatment in
the correctional system in an effective manner, all of
which is, when considered by the Court, designed to
result in a sentence that is sufficient but not greater
than necessary.
Id. at 32-33. “[T]aking all of that into account,” the court
concluded that “a sentence less than the guideline range is
warranted.” Id. at 33. Nevertheless, the court decided a
“substantial” sentence was appropriate and sentenced the
defendant to 132 months’ imprisonment and 36 months’
supervised release. Id. at 33-34. The court also
“recommend[ed] that [the defendant] be admitted to the Bureau
of Prisons’ residential drug abuse treatment program, what is
called the 500-hour program while incarcerated.” Id. at 34.
First and foremost, the court did not err, plainly or
otherwise, because it did not in fact sentence the defendant to a
longer term of imprisonment in order to promote rehabilitation.
 3

As noted, the court focused on the defendant’s lengthy criminal
history and recidivist tendencies even after periods of
incarceration. It mentioned rehabilitation briefly at the close of
a more lengthy discussion of the other factors under 18 U.S.C.
§ 3553(a)(1) and (2). And even with the defendant’s recidivism,
the court imposed a sentence well below the guidelines range.
Its emphasis nonetheless remained on the need for imprisonment
to protect the public from a career offender.1 Cf. United States
v. Manzella, 475 F.3d 152 (3d Cir. 2007) (vacating sentence of
30 months’ imprisonment—well above sentencing guidelines
range of 2 to 8 months—sentencing court had imposed solely to
allow defendant to participate in prison drug treatment
program).
Second, assuming the district court in fact sentenced the
defendant to a longer term of imprisonment in order, in part, to
promote his rehabilitation, but see Majority Op. at 16-17, and
assuming further that the court did so erroneously, that error
would not be plain. Plain error requires that the error be “‘clear’
or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S.
725, 734 (1993). Whether the limitation contained in the last
clause of section 3582(a) applies both to the decision to impose
imprisonment as well as the length thereof or only to the
decision to imprison has, as the majority discusses, split the
circuits. See Majority Op. at 7-8. Whoever has the better
reading, courts have read it differently—and with conflicting
results—which manifests, at least to me, that any court that has
read it erroneously has not done so plainly. See United States v.
Baldwin, 563 F.3d 490, 492 (D.C. Cir. 2009) (relying on circuit
split in finding no plain error); Andrews, 532 F.3d at 909 (same);

1
The court noted that “there’s little in the way of a showing that
the defendant wants or is able to conform his conduct to the law in the
future” and “the defendant has not shown any ability to conform his
conduct to the law now or even after some relatively short period of
incarceration.” Sentencing Tr. at 31.
 4

United States v. Sullivan, 451 F.3d 884, 895-96 (D.C. Cir. 2006)
(same).
Moreover, even assuming error that is plain, the defendant
has failed to “demonstrate ‘a reasonable likelihood that the
sentencing court’s obvious errors affected his sentence.’”
United States v. Williams, 358 F.3d 956, 966 (D.C. Cir. 2004)
(quoting United States v. Saro, 24 F.3d 283, 288 (D.C. Cir.
1994)). In view of the district court’s emphasis on the
defendant’s decades-long inability to refrain from criminal
activity unless incarcerated, the length of the sentence was
unaffected by any desire to accord the defendant one more
chance at rehabilitation. In short, I believe the court would have
imposed the same sentence irrespective of any rehabilitation
impulse and therefore the defendant was not prejudiced.
Because the defendant has not satisfied the first three prongs of
plain error review, I need not reach whether “the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Andrews, 479 F.3d at 896 (internal quotations
omitted)); see United States v. Mouling, 557 F.3d 658, 664 (D.C.
Cir. 2009) (no need to reach fourth prong of plain error test
because error was not plain).
Accordingly, I respectfully dissent from the vacatur and
remand of the defendant’s sentence.