NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 16, 2014
Decided December 29, 2014
By the Court:
No. 14‐2312
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 12 CR 904‐6
ROGER ELAM,
Defendant‐Appellant. Virginia M. Kendall,
Judge.
O R D E R
Appellant Roger Elam moves to waive oral argument in his appeal scheduled for
January 7, 2015, and to remand for resentencing. The government does not object, and
we grant the motion.
Roger Elam was indicted for his participation in a counterfeit‐check scheme and
pleaded guilty to one count of bank fraud. His advisory sentencing range was 33 to 41
months. Mr. Elam asked for a sentence of no more than 24 months and the government
requested a sentence within the guidelines range. At the sentencing hearing the district
court discussed at length Mr. Elamʹs need for drug treatment and sentenced him to 33
months.
Mr. Elam appealed and raised only one issue in his brief: that his sentence should
be vacated because it was entered in violation of the holding in Tapia v. United States, –––
U.S. ––––, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). In Tapia, the Supreme Court held
that ʺa court may not impose or lengthen a prison sentence to enable an offender to
No. 14‐2312 Page 2
complete a treatment program or otherwise to promote rehabilitation.” 131 S.Ct. at 2393.
The Supreme Court explained that a sentencing court can discuss the opportunities for
rehabilitation within prison and may urge the Bureau of Prisons to place an offender in a
treatment program, but a court cannot select the length of the sentence to ensure that a
defendant can complete a program. Id. at 2392‐93.
Mr. Elam argues that the district court used his need for drug rehabilitation as the
sole reason for imposing a sentence of 33 months. In his brief, he points to specific
statements by the district court at sentencing. Most relevant, the district court said,
“[T]he appropriate sentence for you is one that is going to get you over this addiction
and get you back into a lifestyle that is going to eliminate some 25 years of addiction and
criminality based upon addiction.” Sentencing Tr. 23. It added, ʺYou need to be in the
residential treatment program. And it’s a 24‐month program. . . . And it is not one that
you’re going to get to immediately, and it’s one that you need, and I’m sentencing you to
the 33 months.ʺ Tr. 23‐24. The district court later said that its ʺnumber one priorityʺ was
to get Mr. Elam into a facility with a residential drug treatment program. Tr. 24.
The government does not concede in its brief that drug treatment was the sole
reason for the district courtʹs sentence, but does concede that the record is not clear
concerning whether the district court improperly relied upon Mr. Elamʹs need for
rehabilitative drug treatment in determining the length of his sentence. Accordingly, the
government says Mr. Elam should be resentenced to eliminate any question concerning
the district courtʹs intentions.
Mr. Elam asks the court to waive oral argument in this appeal because there are
no longer any disputed issues on appeal and oral argument is not necessary. A panel of
three judges can agree that oral argument is unnecessary because an appeal is frivolous,
the dispositive issues have been decided, or the facts and argument are adequately
presented in the briefs in record. See FED. R. APP. P. 34(a)(2). The partiesʹ briefs contain a
thorough recitation of the district courtʹs statements at sentencing and adequately
present the facts and law relevant to Mr. Elam’s argument on appeal. Because we
conclude that oral argument is not necessary, we grant Mr. Elam’s request and VACATE
oral argument set for January 7, 2015, in this appeal.
We also grant the parties’ request to remand for resentencing. A sentencing court
can discuss the opportunities for rehabilitation within prison, but cannot select the
length of the sentence to ensure that a defendant can complete a program. See Tapia, 131
S.Ct. at 2392‐93; see also United States v. Spann, 757 F.3d 674, 675 (7th Cir. 2014) (holding
No. 14‐2312 Page 3
that a court violates Tapia if it bases its sentence even in part to promote an offenderʹs
rehabilitation); United States v. Lucas, 670 F.3d 784, 795 (7th Cir. 2012) (affirming where
district court discussed opportunities for rehabilitation, but gave no indication that it
chose length of sentence based on greater opportunities for rehabilitation). The district
court’s statements when sentencing Mr. Elam went beyond discussing opportunities for
drug treatment and rehabilitation and indicate that the court selected a sentence longer
than 24 months so that Mr. Elam could take advantage of a 24‐month residential drug
treatment program. Accordingly, we VACATE the district court’s judgment and
REMAND for resentencing.