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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14661
Non-Argument Calendar
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D.C. Docket No. 8:06-cr-00464-EAK-TGW-10
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHANCEY DEON COOPER,
a.k.a. Chauncy,
a.k.a. Black,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 24, 2019)
Before TJOFLAT, BRANCH and HULL, Circuit Judges.
PER CURIAM:
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Chancey Deon Cooper appeals his 60-month sentence, a 23-month upward
variance from his guidelines range, imposed upon revocation of his supervised
release. The parties agree that the district court committed Tapia1 error by
considering Cooper’s need for drug rehabilitation and vocational training in
imposing Cooper’s revocation sentence. After review, we agree with the parties
that the district court erred under Tapia. Accordingly, we vacate Cooper’s
revocation sentence and remand for resentencing.
I. BACKGROUND
A. Underlying Conviction and Sentence
In May 2007, Cooper pled guilty to (1) conspiracy to possess with intent to
distribute 50 grams or more of cocaine base (“crack”), in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(iii) & 846 (Count 1), and (2) using, carrying, and
brandishing a firearm during and in relation to a federal drug trafficking crime, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2 (Count 3). These charges arose
from Cooper’s participation in a large-scale crack cocaine conspiracy involving
multiple other defendants.
In Cooper’s presentence investigation report (“PSR”), the probation officer
calculated a total offense level of 35 and a criminal history category of III,
resulting in a guidelines range of 210 to 262 months’ imprisonment on the
1
Tapia v. United States, 564 U.S. 319, 131 S. Ct. 2382 (2011).
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conspiracy charge in Count 1. Cooper’s firearm offense in Count 3 carried a
statutory mandatory consecutive sentence of 7 years (84 months’) imprisonment.
At sentencing, the government moved for a downward departure based on
Cooper’s substantial assistance. The district court granted Cooper an eight-level
downward departure, bringing his total offense level down to a 27 and his
guidelines range on Count 1 to 87 to 108 months’ imprisonment. The district court
sentenced Cooper to a total term of 171 months’ imprisonment, consisting of 87
months on the conspiracy charge in Count 1 and a mandatory consecutive term of
84 months on the firearm charge in Count 3, followed by concurrent terms of 60
months of supervised released on both counts.
Subsequently, Cooper’s imprisonment sentence for the conspiracy charge in
Count 1 was reduced to 56 months’ imprisonment as a result of the retroactive
application of Amendments 750 and 782 to the Sentencing Guidelines. This
reduced his total sentence to 140 months.
B. January 2018 Supervised Release Violations
Cooper began serving his 60-month term of supervised release on January
13, 2017. In January 2018, Cooper’s probation officer filed a report with the
district court stating that Cooper had failed to comply with the terms of his
supervised release by failing to maintain his employment and by testing positive
for controlled substances. The probation officer recounted that, when confronted
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with the positive drug tests, Cooper admitted to using drugs, expressed remorse,
and took responsibility for his actions. The probation officer issued Cooper a
written reprimand and referred him to substance abuse treatment. The probation
officer requested that the court take no further action regarding Cooper’s violations
at that time.
C. March and April 2018 Petitions for Revocation
In March 2018, the probation officer filed a petition to revoke Cooper’s
supervised release based on the following three alleged violations: (1) Cooper’s
attempt to deceive his probation officer by using a prosthetic penis and concealed
bag of urine when asked to provide a urine sample, which constituted new criminal
conduct of fraudulent practices under Florida Statute § 817.565; (2) Cooper’s
continuing failure, since November 2017, to maintain a lawful occupation without
an acceptable excuse; and (3) Cooper’s admitted use of marijuana. In light of the
probation officer’s petition, the district court issued a warrant for Cooper’s arrest.
On April 13, 2018, Cooper was arrested during a traffic stop pursuant to his
outstanding warrant for violating his supervised release. During the stop, officers
observed several items consistent with the sale of narcotics in Cooper’s car,
including small plastic baggies, “cut” straws, and a small digital scale. The
officers also searched Cooper incident to his arrest and recovered a 2.8 gram bag of
crack cocaine in Cooper’s pants. After transporting Cooper to the Sheriff’s office,
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officers noticed a tan powdery substance and ripped bag on the floorboard of the
patrol vehicle. A second ripped bag of the tan substance was found in Cooper’s
boxer shorts. The tan substance tested positive for fentanyl, and the patrol vehicle
had to be decontaminated.
Based on this new criminal conduct discovered during Cooper’s arrest, on
April 19, 2018, the probation officer filed a superseding petition for revocation of
Cooper’s supervised release. The superseding petition added the following four
violations to the three previously alleged in the March 2018 petition: (4) new
criminal conduct, possession of fentanyl with intent to sell; (5) new criminal
conduct, possession of crack cocaine with intent to sell; (6) new criminal conduct,
tampering with evidence (the fentanyl); and (7) new criminal conduct, possession
of drug paraphernalia. The probation officer noted that each of these additional
violations had resulted in state criminal charges.
In an accompanying memorandum, the probation officer noted that Cooper’s
actions in spreading the fentanyl around the back seat of the patrol vehicle
“potentially placed the lives of the public and the Manatee County Sheriff’s Office
personnel in serious danger given the potential for overdose from incidental
contact with fentanyl.” The probation officer further advised that Cooper’s
statutory maximum revocation sentence was 5 years’ imprisonment and that his
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guidelines range, based on his original conviction being a Class A felony and his
criminal history category of III, was 30 to 37 months.
The probation officer subsequently submitted a sentencing recommendation,
which recommended that Cooper be sentenced to the statutory maximum of five
years’ imprisonment based on the severity of his violations. The probation officer
noted, among other things, that Cooper’s “adjustment to supervision ha[d] been
marginal,” that he had been “consistently deceptive with his probation officer,” and
that he was “not amenable to community-based supervision.” In addition, the
probation officer emphasized that Cooper’s new criminal violations were serious,
that his conduct in tampering with the fentanyl and spreading it over the backseat
of the police vehicle “was extremely reckless given the potential for accidental
overdose from incidental contact with fentanyl,” and that the “Southern Manatee
Fire & Rescue District incurred a financial loss of $1,662.18 as a result of their
response to the [fentanyl] incident.”
D. Revocation Hearing
The district court held a revocation hearing on October 25, 2018. At the
hearing, Cooper pled guilty to the first, second, third, and fifth violations in the
April 2018 superseding petition for revocation (attempting to falsify the urine
sample, failing to maintain employment, using marijuana, and possessing crack
cocaine with intent to sell). The government agreed to dismiss or withdraw the
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remaining violations (possession of fentanyl with intent to sell, tampering with
evidence, and possession of drug paraphernalia), but stated that it intended to use
the conduct underlying those violations as aggravating factors for imposing the
statutory maximum revocation sentence.
Cooper requested a sentence within the guidelines range of 30 to 37 months.
Among other things, Cooper noted that the crack cocaine violation involved a
small amount of crack cocaine; the fentanyl was not pure fentanyl, but rather
heroin laced with fentanyl; he also had state charges pending on those drug
offenses; and he had accepted responsibility. Cooper further explained that he
suffered from post-traumatic stress disorder from his prior period of incarceration
because he had been “treated as a snitch” for cooperating with law enforcement,
was beaten on several occasions, and was sexually assaulted on one occasion.
Cooper acknowledged that he needed substance abuse and psychological treatment
and requested that the court impose a 30-month sentence with conditions that
included drug and psychological treatment, as well as vocational training.
The probation officer reiterated his recommendation of a 60-month statutory
maximum sentence based on the seriousness of Cooper’s conduct. The
government likewise requested a statutory maximum sentence. The government
first stressed the seriousness of Cooper’s underlying, original criminal conduct for
which he was serving supervised release, noting that Cooper was deeply involved
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in a large-scale crack cocaine conspiracy that involved various instances of violent
conduct. The government also highlighted the fact that, after being incarcerated
for that conduct, Cooper got out, went back to selling crack cocaine, and began
selling fentanyl as well. The government further emphasized the dangerous nature
of fentanyl and the recklessness of Cooper’s conduct in exposing officers to the
fentanyl by spreading it around in the patrol car. The government submitted that,
despite receiving a substantial downward departure at his original sentencing,
Cooper had “thumbed his nose at the system” and continued to engage in serious
criminal conduct.
In response, Cooper reiterated that the drug amounts involved in his
violations were “somewhat miniscule” and that his substantial assistance to the
government in his underlying case should be considered. Cooper also noted that
he was unable to complete the Bureau of Prisons’ Residential Drug Abuse Program
(“RDAP”) during his prior incarceration because he was placed in protective
custody due to threats being made against him. Cooper concluded by stressing that
“three years is a long time” and would be “more than a sufficient sentence” given
that he also faced additional time on his state charges.
Before pronouncing Cooper’s sentence, the district court noted that the Jesup
Federal Correctional Institution in Georgia, which Cooper’s counsel had requested,
“would be a very good choice” for Cooper “from a lot of standpoints,” including
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because it had the RDAP program and vocational training opportunities. The
district court indicated that it was considering “what’s going to be best for
[Cooper],” stressing that Cooper needed to “get out of [Manatee County]” and
“learn a trade.” The court then stated: “I’m going to recommend Jesup, Georgia.
And . . . I’m going to give you the 60 months. I want you to go away and I want
you to take advantage of all of the benefits at Jesup, Georgia. It will take you that
long to get through the RDAP program and all the vocational programs.” The
district court highlighted some of the vocational training opportunities available at
Jesup and reiterated that Cooper had “to get [himself] educated and out of Florida”
because “[t]hat’s the only thing that’s going to save you.”
The district court then formally adjudicated Cooper guilty and sentenced
him to 60 months’ imprisonment. The court stated Cooper would “get all these
recommendations” it had just made, “including the RDAP program for the 500-
hour substance abuse.” The district court stated: “The difference between 37
months and 60 may be the difference in you getting the vocational trades you need,
including the plumbing and the computers related to the trade, and the Small
Business Administration.” The government then asked the court to clarify whether
it “adopted the arguments of the government and probation’s position,” and the
court stated that it had. The court additionally stated, “also, I’m concerned about
what would happen to [Cooper] if [he went] back to Manatee County too soon.”
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Cooper objected that his 60-month sentence was procedurally and
substantively unreasonable and violated Tapia. The district court noted Cooper’s
objection, but stated “[g]ive yourself the 60 months before you are 40 years of age
and you may say the judge was right. You’ve got all these trades. You’re making
a new life and a fresh start.” At the end of the hearing, the district court reiterated
that “[t]his sentence may save [Cooper’s] life,” and cautioned that Cooper would
be “in big trouble if [he went] back to Manatee County.”
II. DISCUSSION
On appeal, Cooper argues that the district court erred under Tapia, rendering
his revocation sentence both procedurally and substantively unreasonable, because
it considered rehabilitation in varying upward to impose the statutory maximum
sentence. The government agrees that the district court committed Tapia error in
this case, and that the error was not harmless. Both parties request that we vacate
Cooper’s sentence and remand for resentencing. As we explain below, we agree
with the parties that the district court erred under Tapia and that the error was not
harmless.
We review a sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014). In reviewing the reasonableness of a sentence, we first ensure the district
court committed no significant procedural error, and then, if no procedural error is
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found, examine whether the sentence is substantively reasonable in light of the
totality of the circumstances and the relevant 18 U.S.C. § 3553(a) factors. See Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007); United States v.
Trailer, 827 F.3d 933, 936 (11th Cir. 2016). If the district court errs at sentencing
and the defendant properly preserved that error for appeal, this Court will vacate
and remand for resentencing unless the government establishes that the error was
harmless, meaning that it did not affect the district court’s selection of the sentence
or had only a very slight effect. See Williams v. United States, 503 U.S. 193, 203,
112 S. Ct. 1112, 1120-21 (1992); United States v. Campa, 529 F.3d 980, 1013
(11th Cir. 2008).
A district court commits procedural error by, among other things,
considering an improper factor in imposing sentence. Vandergrift, 754 F.3d at
1308. In Tapia, the Supreme Court held that a sentencing court may not impose or
lengthen a federal defendant’s prison term in order to promote the defendant’s
rehabilitation. Tapia v. United States, 564 U.S. 319, 321, 131 S. Ct. 2382, 2385
(2011). In Tapia, the district court “referred several times to Tapia’s need for drug
treatment,” specifically citing the RDAP program, commented that Tapia should
serve a prison term long enough to complete that program, and explicitly stated
that Tapia’s need for drug treatment was “one of the factors” it considered in
imposing sentence. Id. at 321-22, 131 S. Ct. at 2385.
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The Supreme Court held that the district court’s consideration of Tapia’s
need for rehabilitative services was impermissible. See id. at 321, 334-35, 131
S. Ct. at 2385, 2392-93. The Supreme Court determined that § 3582(a) of the
Sentencing Reform Act, which in relevant part instructs sentencing courts to
“‘recogniz[e] that imprisonment is not an appropriate means of promoting
correction and rehabilitation,’” precludes sentencing courts from imposing or
lengthening a defendant’s prison term to promote rehabilitation. See id. at 326-32,
131 S. Ct. at 2388-91 (quoting 18 U.S.C. § 3582(a)). The Tapia Court was careful
to explain, however, that “[a] court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits of specific treatment or
training programs” at sentencing. Id. at 334, 131 S. Ct. at 2392. The problem in
Tapia’s case was that the district court’s statements “suggest[ed] that the court may
have calculated the length of Tapia’s sentence to ensure that she receive[d] certain
rehabilitative services,” which the Court held is impermissible. Id. at 334-35, 131
S. Ct. at 2392-93.
In Vandergrift, this Court held that Tapia applies in the context of a
resentencing upon revocation of supervised release. 754 F.3d at 1309. This Court
in Vandergrift further explained that Tapia is not limited to situations where the
district court (1) specifically tailors the length of the sentence to permit completion
of a rehabilitation program, or (2) considers rehabilitation as the dominant factor in
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its sentencing determination. Id. at 1310. Rather, this Court held that “Tapia error
occurs where a district court considers rehabilitation when crafting a sentence of
imprisonment.” Id. This Court elaborated that, “[a]s with any other instance
where a court considers an impermissible sentencing factor, considering
rehabilitation is error,” and “[t]his is true regardless of how dominant the error was
in the court’s analysis and regardless of whether we can tell with certainty that the
court relied on rehabilitation because the sentence was tailored to a rehabilitation
program.” Id. at 1311 (citation omitted).
Here, as in Tapia and Vandergrift, the district court procedurally erred by
considering rehabilitation in imposing Cooper’s sentence. Tapia, 564 U.S. at 334-
35, 131 S. Ct. at 2392-93; Vandergrift, 754 F.3d at 1311. The district court did
more than simply discuss the rehabilitation and training opportunities that would
be available to Cooper in prison. See Tapia, 564 U.S. at 334, 131 S. Ct. at 2392.
Rather, the district court repeatedly stressed Cooper’s need to stop using drugs,
learn a trade, and leave Manatee County behind to get a fresh start and indicated
that the 60-month sentence it imposed would further those goals. In particular, the
district court noted, after stating that it would impose a 60-month sentence, that
“[i]t will take you that long to get through the RDAP program and all the
vocational programs.” And the court later reiterated that “[t]he difference between
37 months and 60 may be the difference in you getting the vocational trades you
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need.” These statements suggest that the district court may have calculated the
length of Cooper’s sentence to ensure he received certain rehabilitative services, in
violation of Tapia. See Tapia, 564 U.S. at 334-35, 131 S. Ct. at 2393; Vandergrift,
754 F.3d at 1311 (concluding the district court’s statements that it “consider[ed]
what’s best for the defendant as a factor” and that “vocational training for a period
of time in the prison system . . . could also help save the defendant’s life” violated
Tapia).
Furthermore, the record does not indicate that the district court’s Tapia error
in this case was harmless. Indeed, the government concedes it was not. Although
the district court, at the government’s prompting, agreed that it had “adopted the
arguments of the government and probation’s position,” the only factors the district
court actually discussed in imposing Cooper’s sentence were his needs for
substance abuse treatment and vocational training. The district court did not
indicate that, absent those rehabilitative considerations, it still would have varied
upward to the statutory maximum sentence based on certain permissible factors.
And given the district court’s statements, recounted above, indicating that it
sentenced Cooper to the statutory maximum specifically because of his need for
rehabilitation, we cannot say on this record that the district court’s Tapia error did
not affect or had only a very slight effect on Cooper’s sentence. See Williams, 503
U.S. at 203, 112 S. Ct. at 1120-21; Campa, 529 F.3d at 1013.
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IV. CONCLUSION
For the foregoing reasons, we conclude that the district court procedurally
erred under Tapia in imposing Cooper’s 60-month revocation sentence, and that
error was not harmless. 2 Accordingly, we vacate Cooper’s sentence and remand
for resentencing.
VACATED AND REMANDED.
2
Having concluded that the district court committed procedural error in this case, we need
not and do not address whether, as a separate matter, Cooper’s 60-month sentence is
substantively unreasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (indicating that courts
should consider the substantive reasonableness of a sentence only after first determining that the
sentence is procedurally sound). Nothing in this opinion should be read to suggest that the
district court, on remand, may not reimpose a 60-month sentence if it finds that such an upward
variance is warranted by permissible factors.
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