United States v. Story

FILED
United States Court of Appeals
Tenth Circuit

February 22, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 09-6261
AMBER ELAINE STORY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:09-CR-00197-HE-1)

Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Federal
Public Defender, Oklahoma City, Oklahoma, for Appellant.

Jonathon E. Boatman, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Timothy W. Ogilvie, Assistant United States Attorney, with
him on the briefs) Office the United States Attorney, Oklahoma City, Oklahoma,
for Appellee.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The district court sentenced Amber Elaine Story to additional time in prison

so that she might be eligible for a drug rehabilitation program available only to
prisoners serving 24 months or more. She now challenges her sentence, claiming

it violates 18 U.S.C. § 3582(a), which directs sentencing judges to “recognize that

imprisonment is not an appropriate means of promoting correction and

rehabilitation.” We conclude this statute prevents a sentencing court from

increasing a sentence for rehabilitative objectives. The district court therefore

erred in increasing Story’s sentence for this purpose. But we also conclude the

district court did not commit plain error because the scope and interpretation of

§ 3582 has created a circuit split, which the United States Supreme Court has

agreed to review this term. See Tapia v. United States, No. 10-5400, 2010 WL

2786979 (U.S. Dec. 10, 2010) (granting certiorari).

Finding no plain error, we AFFIRM.

I. Background

Story pleaded guilty to one count of unlawful possession of stolen mail in

violation of 18 U.S.C. § 1708. Story’s actions were part of a larger scheme to

obtain drugs to supply her addiction: she stole mail in search of checks, which

she would bring to a co-conspirator for alteration and then cash. As payment for

stealing and cashing the altered checks, Story received drugs or a portion of the

checks’ proceeds.

The United States Sentencing Guidelines called for a sentencing range of

12 to 18 months’ imprisonment. The presentence report (PSR) identified no

factors warranting a departure or variance from the Guidelines.

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 The government made no objection to the PSR and no recommendation as

to sentencing. Story’s trial counsel, however, sought a downward departure on

the grounds of Story’s mental health history and drug addiction. The court

nonetheless sentenced her above the guideline range to 24 months’ imprisonment.

The court explained the sentence was necessary to make her eligible for a

residential drug abuse program available only for prisoners with sentences in

excess of 24 months:

[Story’s] history of mental health issues . . . . [and] very significant
drug addiction . . . . have driven the substantial criminal record . . . .
[T]he solution to this is treatment. . . . And I think, frankly, that that
circumstance is what drives my ultimate sentencing decision here
perhaps more than any other thing . . . . [W]hat in my view is the
most pertinent consideration here, and it’s fairly rare for me to
conclude this . . . [is] the need for [Story] to receive care or
treatment in a correctional setting . . . .

The thing that is most necessary for Miss Story is to have a
sustained and intense drug rehabilitative experience in a correctional
setting where her circumstances and participation and access and so
on can be controlled, and hopefully to couple that with such mental
health services that are available. But the . . . program that the
Bureau of Prisons offers that includes the long-term intensive drug
treatment is the Residential Drug Abuse Program. That program is
ordinarily not available to persons who are incarcerated for less than
24 months. And, frankly, I think it is critical that she receive that
treatment.

So as a result of that, while I think in the absence of these
other specific factors I would have sentenced Miss Story within the
guidelines, I think it is imperative that she receive a sentence that
would qualify her to get this more intensive treatment, give her the
opportunity on a longer term to dry out and get the drugs out of her
system and hopefully develop the tools to lick the addiction problem

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 and to give her a more stable platform from which she could then
address her various mental health issues.

R. Vol. III at 51–55 (emphasis added). Story’s counsel objected because even

with the longer sentence there was no guarantee that she would be eligible for the

treatment program due to outstanding warrants.

Counsel did not object on the ground that the higher sentence violated

§ 3582(a)’s command that sentencing courts may not use rehabilitative goals to

increase the length of prison sentences.

II. Discussion

Story’s only argument on appeal is the district court’s decision to extend

her term of imprisonment for the purpose of making her eligible for the

residential drug treatment program was directly contrary to the statutory

prohibition set forth in § 3582(a). She asserts her sentence is therefore

unreasonable under United States v. Booker, 543 U.S. 220 (2005).

A. Standard of Review

Ordinarily, the sentencing court’s application of the Guidelines is subject to

de novo review. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

But because Story’s trial counsel failed to raise the § 3582(a) issue at sentencing,

we review only for plain error. United States v. Trujillo-Terrazas, 405 F.3d 814,

817 (10th Cir. 2005). To establish plain error, Story must demonstrate the district

court (1) committed error, (2) the error was plain, and (3) the plain error affected

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her substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002). If these

factors are met, we may exercise discretion to correct the error if (4) it seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id. at

631–32.

We review a criminal sentence for reasonableness. Gall v. United States,

552 U.S. 38, 46 (2007). A sentence is procedurally unreasonable if it is based on

consideration of an impermissible factor. See United States v. Smart, 518 F.3d

800, 803 (2008).

B. Sentencing to Promote Rehabilitative Goals

Story’s challenge arises out of the tension between two statutory provisions

governing sentencing: 18 U.S.C. § 3553(a) and 18 U.S.C. § 3582(a).

The first provision, § 3553(a), requires courts to take a holistic view of the

defendant and the crime. It directs courts to examine the defendant’s personal

characteristics, criminal history, and the nature of the crime committed to

determine an appropriate sentence, which may include incarceration, special

conditions upon release, and restitution. As a part of this examination,

§ 3553(a)(2)(D) also commands the sentencing court to consider, among other

factors, “the need for the sentence imposed . . . to provide the defendant with

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needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner.” (emphasis added). 1

But § 3553 is tempered by a another statutory provision, § 3582(a), which

expressly limits imprisonment as a means to promote rehabilitative goals:

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.

(emphasis added).

The two competing objectives set forth in these statutes is the crux of

Story’s appeal. She contends the district court erred in sentencing her to a longer

term of imprisonment—6 months above the 18 month guideline maximum—to

make her eligible for a drug treatment program. She argues the court not only

1
Section 3553(a) provides more fully:
“(a) Factors to be considered in imposing a sentence.--The court shall impose
a sentence sufficient, but not greater than necessary, to comply with the purposes
set forth in paragraph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider . . .
(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 criminal 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 . . . .”

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violated the plain language of § 3582, but also left no guarantees that she would

even be admitted to the treatment program since placement is discretionary with

prison officials and the program may not be offered in every facility.

The circuits are split in interpreting and reconciling these provisions. And

after oral argument in this case, the government submitted a pleading reversing its

view in the briefs that § 3582(a) could be harmonized with § 3553(a) to allow a

sentence based on rehabilitative needs. The government now concedes the district

court’s sentence violated § 3582(a). 2 In addition, the United States Supreme

Court granted certiorari to consider and resolve the circuit split. Tapia v. United

States, No. 10-5400, 2010 WL 2786979 (U.S. Dec. 10, 2010) (granting certiorari

on the following question: “May a district court give a defendant a longer prison

sentence to promote rehabilitation, as the Eighth and Ninth Circuits have held, or

is such a factor prohibited, as the Second, Third, Eleventh, and D.C. Circuits have

held?”).

We agree with the circuits that have concluded sentencing courts may not

increase the term of incarceration to advance rehabilitative goals. Although a

2
The Solicitor General filed a brief opposing the grant of certiorari by the
United States Supreme Court in a Ninth Circuit case addressing this issue
conceding the district court cannot consider rehabilitation in setting the length of
a prison sentence under § 3553(a). Brief in Opposition to the Grant of Certiorari
at 5–6, Tapia v. United States, No. 10-5400, 2010 WL 2786979 (U.S. Oct. 25,
2010) (“[T]he plain language of the statute prohibits considering a defendant’s
rehabilitative needs as a factor in setting the duration of her prison sentence.”).

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commendable objective, that goal is contrary to the statutory command of

§ 3582(a).

The circuit split presents several conflicting interpretations of the statutory

provisions. The first, represented by the Eighth and Ninth Circuits, reads

§ 3582(a) to prohibit consideration of rehabilitation only in deciding whether to

impose a term of imprisonment in the first place. For example, in United States v.

Hawk Wing, 433 F.3d 622, 629–30 (8th Cir. 2006), the Eighth Circuit concluded

once a sentencing court has properly decided some term of imprisonment is

appropriate, it may go on to consider goals of rehabilitation to determine the

length of the term. Id. Similarly, the Ninth Circuit in United States v. Duran, 37

F.3d 557, 561 (9th Cir. 1994), embraced a narrow interpretation of § 3852(a):

“[i]f Congress had intended to prohibit sentencing judges from considering

correction and rehabilitation in setting the length of the 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.’” See also United States v. Jimenez, 605 F.3d 415, 424 (6th Cir.

2010) (suggesting the minority view in dicta).

This interpretation has been rejected by four circuits over the years—the

Second, Third, Eleventh, and District of Columbia. Their approach is best

summed up by the Third Circuit in the recent case of United States v. Manzella,

475 F.3d 152 (3d Cir. 2007). In Manzella, the court correctly concluded the

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statutory language of § 3582(a) applies both to the decision to impose a term of

imprisonment and to the determination of the length of the term. Id. at 158. The

court noted that, by their own terms, § 3553(a) applies to “imposing a sentence”

and § 3582(a) applies to “imposing a term of imprisonment.” Id. The court found

the Sentencing Reform Act uses the term “sentence” broadly to refer to many

types of punishment, including imprisonment. Id. (citing § 3551, which provides

that a convicted defendant may be sentenced to a fine, a term of probation, or a

term of imprisonment). Accordingly, the court interpreted § 3553(a) to authorize

consideration of rehabilitation in composing a sentence generally, but read

§ 3582(a) to prohibit consideration of rehabilitation in setting one crucial aspect

of that sentence—the term of imprisonment. Id. Thus, while a court can pursue

the goal of rehabilitation in sentencing, it cannot do so either in determining

whether to impose a term of incarceration, or in determining the length of that

term.

Other circuits have reached the same conclusion. The most recent case is

In re Sealed Case, 573 F.3d 844, 849–51 (D.C. Cir. 2009). There, the D.C.

Circuit rejected the Eighth and Ninth circuits’ reasoning: “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?” Id. The court went on to reject the Ninth Circuit’s contention

that § 3582 is insufficiently clear, given the references in the statute to both

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imprisonment and the length of imprisonment. Older cases from the Eleventh and

Second circuits reach similar conclusions. See United States v. Harris, 990 F.2d

594, 596–97 (11th Cir. 1993); United States v. Maier, 975 F.2d 944, 946–47 (2d

Cir. 1992).

We have yet to weigh definitively in this debate with a published case. But

in at least two cases we framed the competing views. In the first case, United

States v. Tsosie, 376 F.3d 1210, 1214 (10th Cir. 2004), we referenced the issue in

dicta:

Although our court has not yet had reason to comment on the specific
import of this language, the other circuits have recognized its clear
mandate—when imposing an original sentence to a term of
imprisonment, it is inappropriate for the district court to consider
rehabilitation of the defendant as the sole purpose for imprisonment.

(citing United States v. Brown, 224 F.3d 1237, 1240 (11th Cir. 2000)). But Tsosie

did not resolve the question since the case involved the use of rehabilitating goals

in “determining the imposition and length of supervised release” under 18 U.S.C.

§ 3583(c) and § 3553(a). Id. at 1214–15. Notably, the dissent in Tsosie would

have reached a broader restriction on judicial discretion even in the case of

supervised release based in part on § 3582(a). 376 F.3d at 1222–23 (O’Brien, J.,

dissenting).

After Tsosie, several panels of our court suggested § 3553 and § 3582 could

be reconciled. In an unpublished decision, United States v. Limon, we endorsed

the interpretation of § 3582 that, while it is inappropriate to determine the length

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of a prison term solely on the basis of rehabilitative goals, it is acceptable to do so

in conjunction with other § 3553(a) factors. 273 F. App’x 698, 708–709 (10th Cir.

2008) (unpublished). That case distinguished Tsosie and concluded Ҥ 3582 only

applies to decisions on whether to impose incarceration, but not in determining the

length of a sentence” and found the contrary case law from other circuits “applied

[§ 3582(a)] only because [rehabilitation] was the sole reason for the sentencing

decision.” Id. at 709. Accord United States v. Lente, 323 F. App’x 698, 711 (10th

Cir. 2009) (Holmes, J. concurring) (unpublished).

Given these competing lines of cases, we agree with the majority view—

increasing incarceration to promote rehabilitative goals is not permitted under

§ 3582(a).

As an initial matter, the method of reconciling the provisions suggested by

our unpublished cases strays too far from the language of the statute. Section

3582(a) restricts the imposition of both a term of imprisonment and a longer

period of imprisonment to advance rehabilitative goals. The fact that

rehabilitation might be one of several goals does not restrict the reach of the

statute.

Nor are we persuaded by the minority view, as exemplified by the Eighth

Circuit’s decision in Hawk Wing. That case’s interpretation advances an unnatural

reading of § 3582(a), requiring us to read the phrase “recognizing that

imprisonment is not an appropriate means of promoting . . . rehabilitation” as

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modifying the first clause (“in determining whether to impose a term of

imprisonment”) but not the second (“in determining the length of the term”).

Accord In re Sealed Case, 573 F.3d at 849. We also disagree with the Ninth

Circuit’s assertion that, if Congress had intended to bar consideration of

rehabilitation absolutely, the statute would read “imprisonment or the length of

imprisonment is not an appropriate means of promoting correction and

rehabilitation.” Duran, 37 F.3d at 561. As the D.C. Circuit pointed out in In re

Sealed,

[T]he phrase “or the length of imprisonment” [would not] add
anything that the term “imprisonment” on its own doesn't already
convey. . . . 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.

In re Sealed Case, 573 F.3d at 850.

We therefore agree with the Second, Third, Eleventh, and D.C. Circuits that

§ 3582(a) bars consideration of rehabilitation in setting a prison term absolutely.

The textual analysis used in Manzella is compelling and does not rob either

§ 3582(a) or § 3553(a) of significance.

We also agree this interpretation makes sense in light of the uncertainty of

placement in rehabilitation programs. As the Third Circuit pointed out in

Manzella, a sentencing judge has no authority to order the Bureau of Prisons to

place a defendant in any given rehabilitative program, although it may offer

recommendations. 475 F.3d at 158. “Allowing a judge to issue a specific term of

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imprisonment based on the uncertain placement of a defendant in a rehabilitative

program[] is a practice Congress was unwilling to endorse.” Id. And in fact, we

understand Story has not been placed in the drug treatment program envisioned by

the sentencing judge.

As a final matter, the legislative history supports this reading of the statute.

The Senate Report accompanying the Sentencing Reform Act noted “almost

everyone involved in the criminal justice system now doubts that rehabilitation can

be induced reliably in a prison setting.” S. REP. NO. 98-225, at 38 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3302. The report also explained the

committee considered and rejected the view that rehabilitation should be

eliminated completely as a purpose of sentencing, choosing instead to “retain[]

rehabilitation and corrections as an appropriate purpose of a sentence, while

recognizing . . . that ‘imprisonment is not an appropriate means of promoting

correction and rehabilitation.’” Id. at 76–77 (emphasis added). The “purpose of

rehabilitation is still important in determining whether a sanction other than a term

of imprisonment is appropriate in a particular case.” Id.

We therefore hold § 3582(a) bars a sentencing judge from considering

rehabilitative goals in determining whether to sentence a criminal defendant to a

term of incarceration and the length of that term.

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 C. Plain Error

Although we conclude the district court committed statutory error, we must

also consider whether the error is plain. To meet this standard the error must be

“clear or obvious” under “current, well-settled law.” United States v. Whitney,

229 F.3d 1296, 1308, 1309 (10th Cir. 2000). “In general, for an error to be

contrary to well-settled law, either the Supreme Court or this court must have

addressed the issue.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187–88 (10th

Cir. 2003). But even where there is no such precedent, we may find plain error

where the district court has engaged in a “clearly erroneous” application of

statutory law. United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009) (finding

no plain error because there was no precedent and the sentencing guidelines were

not “clearly and obviously . . . limited” to the interpretation advocated by the

appellant).

Here, there is no controlling circuit or Supreme Court precedent. Tsosie is

not on point, and neither Limon nor Lente are published or binding on this court or

the district courts. Moreover, our unpublished Tenth Circuit opinions that might

have offered guidance to the district court are contrary to our holding today. See

Limon, 273 F. App’x at 708–09.

Since Story did not object on § 3582 grounds, we may remand only if the

error was a “clearly erroneous” application of the Guidelines. We found one case

that did so. In In re Sealed the D.C. Circuit held a sentence based on

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rehabilitative goals to be plain error in a factually similar case. Although no

precedent existed in the D.C. Circuit, it found that § 3582(a) “speaks with absolute

clarity.” In re Sealed Case, 573 F.3d at 851–52. But a dissent in that case saw it

differently, arguing the existence of a circuit split weighed against a finding that

the district court’s error was “clear or obvious.” Id. at 855 (Henderson, J.,

dissenting).

While we agree with In re Sealed’s statutory analysis, we part ways on plain

error review. Our circuit precedent has repeatedly noted that a circuit split is

strong evidence that an error is not plain. As we said in United States v. Teague,

443 F.3d 1310, 1319 (10th Cir. 2006), “[i]f neither the Supreme Court nor the

Tenth Circuit has ruled on the subject, we cannot find plain error if the authority

in other circuits is split.” See also United States v. Mike, No. 09-2230, at *22

(10th Cir. Feb. 17, 2011) (finding no plain error as “there appears to be a split in

the circuits”); United States v. Juarez-Galvan, 572 F.3d 1156, 1161 (10th Cir.

2009) (finding no plain error because there was no controlling precedent and there

was a conflict in circuit authority).

Other circuits agree. See United States v. Moriarty, 429 F.3d 1012, 1019

(11th Cir. 2005) (“When neither the Supreme Court nor this Court has resolved an

issue, and other circuits are split on it, there can be no plain error in regard to that

issue.”); United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) (“Certainly, an

error cannot be deemed ‘plain,’ in the absence of binding precedent, where there is

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a genuine dispute among the other circuits.”); United States v. Diaz, 285 F.3d 92,

96 (1st Cir. 2002) (“If a circuit conflict exists on a question, and the law is

unsettled in the circuit in which the appeal was taken, any error cannot be plain or

obvious.”); United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (“[A]

circuit split precludes a finding of plain error.”).

While a circuit split is not dispositive on the question of whether an error is

plain, the circumstances here weigh against such a conclusion. Not only do we

have a division in the circuits, the two (albeit non-precedential unpublished) cases

to directly address the issue in our circuit interpreted the statutes to allow the

sentence imposed on Story. Given the district court’s sentence would likely have

been permissible under the interpretation espoused by this court in Limon, it

cannot fairly be said the district court’s error was “clearly erroneous.”

For all of these reasons, we conclude the district court did not commit plain

error in this case.

III. Conclusion

For the reasons discussed above, we AFFIRM the judgment of the district

court.

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09-6261 - United States v. Story

HARTZ, Circuit Judge, concurring:

I fully join Judge Tymkovich’s opinion. I write separately only to suggest

that Story may also not be entitled to plain-error relief because she has failed to

establish prejudice. It is doubtful that she has shown that her sentence would have

been any lower had the district court not made its error. Although rehabilitation is

not a proper ground for increasing a sentence, the threat of recidivism is. And

whether one views the problem as a need for rehabilitation or a need to protect

against recidivism may well depend only on the lens one is looking through. A

sentencing judge who believes participation in a rehabilitation program to be

essential may often also believe that the chance of recidivism is quite high absent

participation. If no rehabilitation program is available, the judge may think that a

longer sentence is appropriate to protect the public. Thus, the sentencing judge in

this case might well have decided that if Story could not participate in a

rehabilitation program in prison, the risk of her engaging in crime upon release

required an above-guidelines sentence. Indeed, the grounds checked off by the

court in the Statement of Reasons for Story’s above-guidelines sentence include

“to protect the public from further crimes of the defendant.”