Case: 10-30571 Document: 00511533628 Page: 1 Date Filed: 07/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 8, 2011
No. 10-30571
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMARCION D. HENDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Armarcion Henderson argues that the district court erred by giving him
a longer sentence to promote his rehabilitation. Under Tapia v. United States,
No. 10-5400, 2011 WL 2369395 (U.S. June 16, 2011), Henderson is correct that
the district court erred. Henderson did not preserve the error, however, and we
affirm, because he cannot show that the district court plainly erred.
Case: 10-30571 Document: 00511533628 Page: 2 Date Filed: 07/08/2011
No. 10-30571
I.
Henderson pleaded guilty of being a felon in possession of a firearm under
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Although the sentencing guideline range
was 33 to 41 months, Henderson was sentenced to 60 months of imprisonment.
The district court stated that the upward departure was necessary to ensure
that Henderson had an opportunity to enroll in the federal Bureau of Prisons
drug treatment program:
I want the record to reflect that this sentence is a [18 U.S.C.
§] 3553(a) sentence, particularly under subparagraph (2)(D),1 be-
cause this defendant needs training, he needs counselling [sic], and
he needs substance abuse treatment within the confines of that sys-
tem.
. . . . I’ve got to give him that length of time to do the program-
ming and the treatment and the counselling [sic] that this defen-
dant needs right now. And that is the reason for that sentence un-
der 3553(a)(2)(D).
Henderson did not object to the sentence. When asked if there was “any reason
why that sentence as stated should not be imposed,” his attorney responded,
“[p]rocedurally, no, Your Honor.”
Eight days after the sentencing hearing, Henderson filed a motion under
Federal Rule of Criminal Procedure 35(a) to correct the sentence, arguing that
the court violated the admonition of 18 U.S.C. § 3582(a) that
[t]he court, in determining whether to impose a term of imprison-
ment, and, if a term of imprisonment is to be imposed, in determin-
ing the length of the term, shall consider the factors set forth in sec-
tion 3553(a) to the extent that they are applicable, recognizing that
imprisonment is not an appropriate means of promoting correction
and rehabilitation.
1
Title 18 U.S.C. § 3553(a)(2)(D) provides that “[t]he court, in determining the particu-
lar sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to provide
the defendant with needed educational or vocational training, medical care, or other correc-
tional treatment in the most effective manner.”
2
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No. 10-30571
The district court denied the motion, and Henderson appeals.
II.
The first issue is whether Henderson’s rule 35(a) motion preserved his
claim of error. We have previously held that a rule 35(a) motion preserved a
claim of error under United States v. Booker, 543 U.S. 220 (2005). United States
v. Watkins, 450 F.3d 184, 185 (5th Cir. 2006) (per curiam). Watkins does not
control here, however, because the Booker error in that case was clear.2 It was
thus correctable under rule 35(a), which allows the court to correct only sen-
tences “that resulted from arithmetical, technical, or other clear error.” Because
the purpose of waiver doctrine is to “give[] the district court the opportunity to
consider and resolve [errors],”3 however, a rule 35(a) motion can preserve error
only if it gave the district court an opportunity to correct it. Consequently, a rule
35(a) motion cannot preserve an error unless the error is arithmetical, technical,
or otherwise clear.
A sentencing error is clear under rule 35(a) only if it is not the result of
“the exercise of the court’s discretion with regard to the application of the sen-
tencing guidelines.” United State v. Ross, 557 F.3d 237, 241 (5th Cir. 2009). That
rule flows from the comments of the advisory committee that Rule 35(a) is “‘very
narrow and . . . extend[s] only to those cases in which an obvious error or mis-
take has occurred in the sentence, that is, errors which would almost certainly
result in a remand of the case to the trial court for further action.’” Id. at 239
(quoting FED. R. CRIM. P. 35 advisory committee’s note).
2
The Supreme Court had decided Booker immediately before Watkins’s Rule 35(a) mo-
tion, so it was clear at the time of the motion that the district court should not have considered
judge-found facts when operating under a mandatory guidelines regime. Watkins, 450 F.3d
at 185.
3
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
3
Case: 10-30571 Document: 00511533628 Page: 4 Date Filed: 07/08/2011
No. 10-30571
Before Tapia, there was a circuit split on whether a district court can con-
sider a defendant’s rehabilitative needs to lengthen a sentence. Tapia, 2011 WL
2369395, at *3 n.1. Moreover, we have not pronounced on the question.4 In that
situation, when there is no binding precedent on a question on which there is a
circuit split, an alleged error is not “clear.” If we had confronted the question,
we might have gone either way, so the error would not “almost certainly result
in a remand of the case.” The error was not correctable under rule 35(a), and
Henderson’s motion failed to preserve the error. We must therefore review for
plain error.
Tapia established that it is error for a court to “impose or lengthen a pris-
on sentence to enable an offender to complete a treatment program or otherwise
to promote rehabilitation.” Tapia, 2011 WL 2369395, at *9. Henderson cannot
show that the error in his case was plain, however, because an error is plain only
if it “was clear under current law at the time of trial.” United States v. Jackson,
549 F.3d 963, 977 (5th Cir. 2008) (emphasis added). At the time of trial, the Su-
preme Court had not yet decided Tapia and, as we have just explained, we had
not yet addressed the question. Where we have not previously addressed a ques-
tion, any error cannot be plain.5
The judgment of sentence is AFFIRMED.
4
In United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), we held only that a court
could consider a defendant’s rehabilitative needs when sentencing him to imprisonment upon
revocation of supervised release. Our decision in United States v. Lara-Velasquez, 919 F.2d
946, 953-57 (5th Cir. 1990), held only that the court can consider rehabilitative potential as
a mitigating factor within an appropriate range of punishment, but not necessarily as a reason
for a sentencing enhancement.
5
See United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We conclude that
any error by the district court in this regard was not plain or obvious, as we have not previ-
ously addressed this issue.” (citing United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.
1994)(en banc))).
4