PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CYNTHIA LEMON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:08-cr-00004-CMC-1)
Argued: December 11, 2014 Decided: January 23, 2015
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Thacker and Senior Judge Davis joined.
ARGUED: Katherine E. Evatt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Winston
David Holliday, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Cynthia Lemon appeals her twenty-four month prison sentence
for several violations of her supervised release. She argues
that the district court committed plain error at her revocation
hearing by considering her rehabilitative needs as a factor in
determining the length of her sentence. For the following
reasons, we affirm.
I.
The parties do not dispute the facts of this case. In
2008, Lemon pleaded guilty to conspiracy to defraud the United
States by making, uttering, and possessing forged securities in
violation of 18 U.S.C. § 531 and § 371. The district court
sentenced her to thirty months in prison and three years of
supervised release. Lemon’s supervised release term began in
February 2013. Five months later, she was arrested for multiple
violations of her supervision, including several instances of
forging checks.
Based on the nature of Lemon’s violations and her extensive
criminal history, the supervised release violation report
provided for a Guidelines range of 21-27 months’ imprisonment.
Factoring in the statutory maximum reduced that range to 21-24
months. Lemon filed no objections to the report, and Lemon’s
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probation officer recommended a sentence of twenty-four months’
imprisonment.
At the revocation hearing, the Government requested a
sentence within the Guidelines range. Lemon’s counsel requested
a sentence of time served and continuation on supervised
release. In the alternative, Lemon’s counsel requested a
sentence of one year and one day -- the same sentence the court
had imposed on Lemon’s co-defendant.
The district court adopted the Government’s recommendation,
revoking Lemon’s supervised release and sentencing her to
twenty-four months in prison. After announcing its sentence,
the court addressed Lemon and commented on both the basis for
its sentence and its concern about her mental health:
I cannot imagine what was in your mind that led you to
do this again, what you possibly could have been
thinking that you could get away with this. To me it
almost indicates some loss of contact with reality,
that you could think you could possibly get away with
this. And to do it, you know, over and over again
while you are on supervised release, after having
served state time and federal time for the similar
type [of] conduct.
So, I don’t know whether you received any type of
counseling when you were serving your time before, I
don’t know whether you will be able to this time, but
I hope maybe you can. Because you have a serious
emotional problem that would cause you to behave this
way despite what it costs your children and your
family. It’s just so unfair to them, and you don’t
seem to get it.
So, I have considered the seriousness of the offense,
the revocation offenses, I have considered that this
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is a category six criminal history, continuing to re-
offend. I have considered that you do have a serious
family situation, but you aren’t really helping your
family situation, you are hurting your family
situation.
I have considered the need for the sentence to reflect
the seriousness of the offense, promote respect for
the law, provide just punishment, afford adequate
deterrence.
I have also considered specifically the need to
protect the public from further crimes. I believe
that if you were out again you would be doing the same
thing, and I believe that you need further
correctional treatment and some type of evaluation.
I’m going to recommend some sort of mental health
counseling while you are in the BOP this time to see
if there is anything they can do for you to stop this
recidivist behavior.
Lemon noted a timely appeal of her sentence, and her
counsel filed an Anders brief that identified no reversible
error. After reviewing the record, we requested supplemental
briefing on whether the district court impermissibly sentenced
Lemon based on its perception that she needed rehabilitative
mental health treatment.
II.
The only error Lemon now alleges is that the district court
considered her rehabilitative needs when determining the length
of her revocation sentence, in violation of Tapia v. United
States, 131 S. Ct. 2382 (2011). As Lemon’s counsel acknowledged
at oral argument, this issue was not raised at the revocation
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hearing. Therefore, we review for plain error. See United
States v. Olano, 507 U.S. 725, 731 (1993). To prevail, Lemon
must show that “an error (1) was made, (2) is plain (i.e., clear
or obvious), and (3) affects substantial rights.” United States
v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even if Lemon makes
such a showing, this court “may exercise its discretion to
correct the error only if it seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
A.
In Tapia, the Supreme Court held that the “Sentencing
Reform Act precludes federal courts from imposing or lengthening
a prison term in order to promote a criminal defendant's
rehabilitation.” 131 S. Ct. at 2385. In reaching that holding,
the Court distinguished between permissible and impermissible
discussions of rehabilitation at a sentencing hearing. 1 On the
one hand, “[a] court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits
of specific treatment or training programs.” Id. at 2392. A
court crosses the line, however, if it chooses to “impose or
1
Although the sentence at issue in Tapia was imposed after
the defendant’s initial conviction, we have held that Tapia
applies to revocation sentences. United States v. Bennett, 698
F.3d 194, 198 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506
(2013).
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lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” Id.
at 2393 (emphasis omitted).
The underlying facts in Tapia illustrate this distinction.
There, the district court had indicated that it chose the length
of the defendant’s sentence at least in part so that she could
participate in a particular drug treatment program. Id. at
2385. Specifically, the court had explained that “[t]he
sentence has to be sufficient to provide needed correctional
treatment, and here I think the needed correctional treatment is
the 500 Hour Drug Program. . . . I am going to impose a 51-month
sentence, . . . and one of the factors that affects this is the
need to provide treatment.” Id. (alterations in original). The
Supreme Court found that these comments “suggest[ed] that the
court may have calculated the length of Tapia’s sentence to
ensure that she receive[d] certain rehabilitative services.”
Id. at 2393 (emphasis omitted). The Court remanded the case to
the Ninth Circuit, which then held that the district court had
in fact committed plain error. United States v. Tapia, 665 F.3d
1059, 1063 (9th Cir. 2011).
We have emphasized that Tapia “does not prevent a district
court from considering [rehabilitation] in the course of a
sentencing proceeding.” United States v. Alston, 722 F.3d 603,
609 (4th Cir.) (emphasis added), cert. denied, 134 S. Ct. 808
6
(2013). Instead, “Tapia stands for the proposition that a court
cannot impose or lengthen a sentence” to further a
rehabilitative purpose. Id. (emphasis in original).
Accordingly, in Alston we rejected the defendant’s claim of
Tapia error because we determined that the defendant’s
rehabilitative needs did not affect the length of his sentence.
Id. at 609. All the district court had said regarding
rehabilitation at sentencing was that its sentence would
“protect[] the public” from the defendant and “provide[] the
needed treatment of care in the most effective manner possible.”
Id. at 608. We concluded that these comments indicated the
district court’s awareness of the rehabilitative benefits of the
defendant’s sentence, but they did not indicate that the court
chose or lengthened the sentence because of those benefits. Id.
at 608-09.
In United States v. Bennett, 698 F.3d 194 (4th Cir. 2012),
by contrast, we concluded that the district court impermissibly
linked the defendant’s rehabilitative needs to the length of his
sentence. The district court there noted that the defendant
“needs intensive substance abuse treatment. So, the court will
impose a sentence that provides ample time for that.” Id. at
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196-97. We held that the court’s reliance on rehabilitative
needs in fashioning its sentence constituted error. 2 Id. at 200.
Alston and Bennett illustrate the line between permissible
comment upon a defendant’s rehabilitative needs and reliance on
those needs as a factor in selecting the length of his prison
sentence. This distinction accords with the “broad consensus”
among our sister circuits that the presence of Tapia error turns
on “whether a sentencing court’s reference to rehabilitative
needs [is] causally related to the length of the sentence.”
United States v. Del Valle-Rodriguez, 761 F.3d 171, 174 (1st
Cir.) (emphasis added) (citing cases), cert. denied, 135 S. Ct.
293 (2014).
Such a causal relationship may be clearest when, as in
Tapia, a sentencing court has a particular rehabilitative
program in mind and uses the length of that program to justify
the length of its sentence. See, e.g., United States v.
Kubeczko, 660 F.3d 260, 261 (7th Cir. 2011) (finding clear Tapia
error where a district court explained that the defendant needed
“to be in one place longer than 18 months” to get mental health
treatment). Courts have also found Tapia violations when there
2
We then assumed that the error was plain, but we
ultimately concluded that it did not affect the defendant’s
substantial rights because it was the “brazen breach of trust
inherent in [the defendant’s] unlawful actions,” rather than his
rehabilitative needs, that “drove the district court’s
sentencing decision.” Bennett, 698 F.3d at 200.
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are less clear indicia that rehabilitation affected the length
of a defendant’s sentence. The Eleventh Circuit has articulated
the most expansive test, finding Tapia error whenever “the
district court considers rehabilitation when crafting a sentence
of imprisonment.” United States v. Vandergrift, 754 F.3d 1303,
1310 (11th Cir. 2014) (emphasis in original). But in
Vandergrift, as in Bennett, the sentencing court appeared to
“consider” rehabilitation with an eye toward lengthening the
defendant’s sentence. The court there explained that “I’ve also
got to consider what’s best for the defendant as a factor in the
equation” and observed that while the defendant “does not thrive
in an unstructured environment,” he could get mental health
treatment and “vocational training for a period of time in the
prison system.” Id. at 1306 (emphasis added). No matter how
the test is articulated, we find it unlikely that a court has
committed Tapia error unless it has considered rehabilitation
for the specific purpose of imposing or lengthening a prison
sentence.
B.
With these considerations in mind, we hold that the
district court did not plainly err when it discussed Lemon’s
need for mental health counseling at sentencing. In arguing to
the contrary, Lemon attempts to align this case with Tapia and
Bennett. See Appellant’s Supp. Br. 11-12. But in contrast to
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those cases, the district court here never suggested that its
concern for Lemon’s mental health was a factor in fixing the
length of her sentence. In fact, the court’s uncertainty about
Lemon’s counseling options suggests rehabilitation was not a
factor. After observing that it did not “know whether [Lemon
had] received any type of counseling” during her previous prison
term, the district court commented that “I don’t know whether
you will be able to this time, but I hope maybe you can.” It is
difficult to conclude that the court lengthened Lemon’s sentence
so she could receive mental health treatment if the court was
unsure whether such treatment was even available. 3
Moreover, the district court provided a rationale for
Lemon’s sentence that did not rest, expressly or implicitly, on
her rehabilitative needs. In particular, the court emphasized
that Lemon had “continu[ed] to re-offend,” and there was
therefore a “need to protect the public from further crimes.”
3
In addition to Tapia and Bennett, Lemon relies on two
unpublished cases for her argument that the district court
impermissibly considered her rehabilitative needs. See
Appellant’s Supp. Br. 11 (citing United States v. Pate, 503 F.
App’x 216 (4th Cir. 2013) (unpublished per curiam) and United
States v. Olds, 464 F. App’x 117 (4th Cir. 2012) (unpublished
per curiam)). Unpublished opinions have no precedential value
in this circuit. See Hentosh v. Old Dominion Univ., 767 F.3d
413, 417 (4th Cir. 2014). Even if published, neither case would
aid Lemon’s cause; in both, the sentencing court issued an
above-Guidelines sentence for the express purpose of providing
the defendant drug treatment. See Pate, 503 F. App’x at 217;
Olds, 464 F. App’x at 118. These cases thus provide clear
examples of Tapia error; Lemon’s does not.
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These considerations, rather than concern for Lemon’s mental
health, appear to have motivated the court’s decision to impose
its sentence.
To be sure, the court could have more clearly separated its
discussion of Lemon’s rehabilitative needs from its discussion
of the factors that affected the length of her sentence. As we
advised in Bennett, “[b]y keeping these distinct concepts
distinct, courts will preclude the possibility of confusion on
appeal over whether a Tapia error has occurred.” 698 F.3d at
199. But even if we read ambiguity into the revocation hearing
transcript, it is certainly not “clear or obvious,” Lynn, 592
F.3d at 577, that the district court impermissibly considered
rehabilitation. Accordingly, the court did not plainly err in
sentencing Lemon. 4
4
At oral argument, Lemon’s counsel pointed to the disparity
between the sentences imposed on Lemon and her co-defendant as
evidence that the district court must have considered her need
for rehabilitation. Having reviewed the record in both cases,
we are not troubled by the twelve-month difference in the
revocation sentences. Although both defendants faced the same
Guidelines range at their revocation hearings, Lemon had
committed several more supervised release violations. And at
the time of their underlying offenses, Lemon had nearly twice
the criminal history points as her co-defendant. It is
understandable that the district court would treat the two
defendants differently.
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III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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