FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10245
Plaintiff-Appellee, D.C. No.
v. 1:03-cr-00536-
LEON W. GRANT, DAE-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
September 19, 20111—San Francisco, California
Filed December 5, 2011
Before: Robert R. Beezer, Andrew J. Kleinfeld, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Kleinfeld
1
This case was originally calendared for October 4, 2010. We removed
it from the calendar to consider the continuing vitality of United States v.
Duran, 37 F.3d 557 (9th Cir. 1994). Grant was released on bail pending
appeal, and a call for initial en banc was made. While the voting on
whether to hear the case en banc was proceeding, the Supreme Court
granted certiorari in Tapia v. United States, 131 S. Ct. 817 (2010), to
review our unpublished disposition in United States v. Tapia, 376 F.
App’x 707 (9th Cir. 2010) (unpublished), which had applied Duran. We
then suspended voting on initial hearing en banc, pending the Court’s
decision in Tapia. The Court decided Tapia on June 16, 2011. The sua
sponte en banc call was withdrawn, and we invited supplemental briefs
addressing the effect of the Court’s decision in Tapia. We heard oral argu-
ment on September 19, 2011.
20669
UNITED STATES v. GRANT 20671
COUNSEL
Pamela O’Leary Tower, Kenwood, California, for the appel-
lant.
Sangita K. Rao, Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C., for the
appellee.
OPINION
KLEINFELD, Senior Circuit Judge:
We address whether rehabilitation can be considered for
purposes of imposing imprisonment upon revocation of super-
vised release.
I. Facts.
Leon W. Grant’s offense of conviction was fraud on two
banks. By various means, he sought to enrich himself at the
banks’ expense with counterfeit checks. He was sentenced in
20672 UNITED STATES v. GRANT
2004 to one day of prison on each count and five years of
supervised release, plus $38,598.44 in restitution (he had
attempted to obtain about half this amount, his partner about
the same). Grant’s supervised release sentence included man-
datory participation in substance abuse and mental health pro-
grams, drug testing, and a prohibition on alcohol
consumption.
Close to the end of the five years of supervised release,
Grant was caught violating its terms in numerous ways. Sev-
eral of the violations involved cocaine, marijuana, and alco-
hol, the substances that had concerned the court at his initial
sentencing. He had also been hospitalized after an overdose
in a possible suicide attempt. The court revoked his super-
vised release and sentenced him to three months of prison and
another lengthy period, 57 months, of supervised release.
Grant was charged again, several months after being
released from prison, for another series of violations of the
conditions of his release. The court found Grant guilty of all
six violations, and held the penalty in abeyance. The court did
not revoke Grant’s supervised release, but warned him that
this was his last chance. A few months later, Grant’s parole
officer encountered him at a sushi bar. Grant told the parole
officer that he had not had any alcohol, but the waiter said
that Grant had purchased a large glass of sake, and a breatha-
lyzer test showed that Grant had violated the no-alcohol con-
dition of his supervised release. Grant did not show up for his
drug test scheduled for the next day.
The Sentencing Guidelines range for these violations was
three to nine months in prison, and Grant requested three
months in a residential treatment program, but the court sen-
tenced him to 24 months in prison to be followed by another
24 months of supervised release. The judge gave a thorough
and thoughtful explanation of why he was imposing this sen-
tence on Grant. What gives rise to this appeal is that the judge
made it plain that he was giving Grant more time in prison in
UNITED STATES v. GRANT 20673
order to facilitate his rehabilitation. Here is the explanation in
full:
[I]n this case I was very hopeful that despite we—
with Mr. Grant we’ve had a long history of dishon-
esty, deception, abuse of alcohol, he’s had drug
issues, I mean just a whole series of problems one
right after another, as well as other violations of the
law, that this would help him make and turn the cor-
ner.
And so I gave him a chance. But I made it very,
very clear to him that if he violated the terms and
conditions of his supervised release again, that the
Court was going to have to take some decisive
action. So, I was very hopeful that Mr. Grant would
make it, in spite of the evidence to the contrary in his
past. Sadly this is one of those occasions where I
was wrong.
Mr. Grant appears at this point in his life to be
incapable of following the rules of staying away
from alcohol and of—I assume drugs, I’m not going
to find him guilty of taking drugs, but he avoided a
drug test. He—and of course he continues to lie to
the probation office with regard to material and sig-
nificant matters with impunity. So we have abso-
lutely no indicia of trustworthiness in anything he
does or says.
It’s clear to the Court that Mr. Grant is really out
of control. He is unable to control himself. He’s
unable to follow the rules. I don’t think it’s because
he necessarily doesn’t want to. I don’t think he nec-
essarily has a totally cavalier attitude. I just think
that he presents now a serious danger to himself as
well as a danger to the community in his current
frame of mind. Looking at all of the 3553 factors it’s
20674 UNITED STATES v. GRANT
very clear to me that he needs a significant enough
period of incarceration so that he gets a real time-out
and serious treatment in a setting that will mandate
that he in fact does what he’s supposed to do because
I have absolutely no confidence at all from his past
behavior and from his history that absent compulsion
of the kind that can provide—be provided for by
incarceration that he will follow through.
If I were to give him the so-called third chance or
fourth chance, whatever it happens to be that [Mr.
Grant’s counsel] would like me to give him, we will
be right back here in another three to four months.
Probably. Maybe even sooner. Because he’s just
incapable right now of following the rules.
And I gave him as stern a lecture as I could possi-
bly give him the last time and it just apparently
didn’t make a dent, at least beyond a few weeks, and
he was right back at his old behavior.
So, the Court actually feels that under the unique
and rather unusual circumstances here that a vari-
ance from the guidelines is warranted because it is
imperative that he receive a significant enough term
of incarceration that he is able to actually receive
meaningful treatment and also to break—help him
break his cycle of abuse of substances. A period of
nine months isn’t enough. So the Court is going to
impose a sentence of 24 months upon the defendant
to ensure that he receives the significant drug treat-
ment that he needs, as well as the alcohol treatment
and mental health treatment and other things that are
imperative that he receive because he is, as I said, as
he currently stands a significant danger to himself.
Any lesser period of time in the Court’s view is
going to do nothing. The Court has given him chance
after chance after chance and—in an effort to avoid
UNITED STATES v. GRANT 20675
this and unfortunately Mr. Grant has simply not been
able to follow through.
The judge further explained his upward departure as based on
Grant’s having “absolutely no control now over [his] actions,”
and on the fact that at least 24 months of imprisonment was
necessary to get Grant into the prison’s rehabilitative pro-
gram:
And from my experience in talking with [the Bureau
of Prisons], in order to get you into the kind of pro-
grams we need to get you in, we need at least 24
months. And that’s one of the reasons I selected that
time. . . . [M]y [previous] leniency was not helpful.
And so the sentence I imposed [on] you was not
imposed because of any vindictiveness on my part at
all, but it’s because I do think that anything less will
be of no use to you or society. We need to get you
in these treatment programs and . . . get you away
from your bad habits and issues that you have in
your mental health treatment, which I’m going to
recommend serious mental health treatment, drug
and alcohol treatment for you during your term at
[the Federal Detention Center].
The court sentenced Grant to more time in prison than he oth-
erwise would have, not only to protect society while Grant
was in jail, but also to protect both society and Grant after his
release. The judge’s express purpose was to improve Grant’s
ability to deal with the drug and alcohol problems that con-
tributed to his recurrent criminal conduct.
II. Analysis.
Grant argues on appeal that the sentence must be vacated,
because the court should not have based the length of Grant’s
prison sentence on rehabilitation considerations. Grant did not
object to the procedural error in district court, so we review
20676 UNITED STATES v. GRANT
for plain error.2 A subsequent Supreme Court decision3 has
made the error plain.4
[1] The district court acted correctly under what was then
controlling Ninth Circuit authority, United States v. Duran.5
The statutory backdrop is that Section 3553, the general state-
ment of sentencing considerations, includes rehabilitation as
a factor to consider,6 but the section specifically on prison
sentences includes the phrase “recognizing that imprisonment
is not an appropriate means of promoting correction and rehabil-
itation.”7 We held in Duran that the “recognizing that . . .”
phrase prohibited considering rehabilitation in deciding
whether to send someone to prison, but not in deciding how
long a prison term should be.8
[2] After the court’s revocation of Grant’s supervised
release, the Supreme Court in Tapia v. United States9 reversed
an unpublished memorandum disposition in which we had
2
United States v. Autery, 555 F.3d 864, 869-71 (9th Cir. 2009).
3
Tapia v. United States, 131 S. Ct. 2382 (2011)
4
United States v. Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc).
5
United States v. Duran, 37 F.3d 557 (9th Cir. 1994).
6
“Imposition of a sentence. (a) Factors to be considered in imposing a
sentence. . . . The court, in determining the particular sentence to be
imposed, shall consider . . . (2) the need for the sentence imposed . . . (D)
to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective man-
ner[.]” 18 U.S.C. § 3553(a).
7
“Imposition of a sentence of imprisonment. (a) Factors to be consid-
ered in imposing a term of imprisonment. 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.” Id. § 3582(a).
8
Duran, 37 F.3d at 561.
9
Tapia, 131 S. Ct. at 2382.
UNITED STATES v. GRANT 20677
applied Duran.10 Tapia holds that the “recognizing that . . .”
phrase prohibits consideration of rehabilitation, not only in
deciding whether to imprison someone, but also for how long.11
This holding overrules our decision in Duran. The facts of
Tapia were much like ours: a prison sentence lengthened to
facilitate appropriate substance abuse rehabilitation.12 The dif-
ference is that Tapia involved an initial sentencing, while our
case involves sentencing on revocation of supervised release.
The question before us is whether Tapia is limited to impris-
onment at initial sentencing, or if it extends to imprisonment
on revocation of supervised release. We conclude that Tapia
applies to imprisonment regardless of whether imprisonment
is imposed at initial sentencing or on revocation.
The statutes do not suggest a distinction between Tapia and
a revocation of supervised release case. The statute for modi-
fication or revocation of supervised release directs the sen-
tencing court to consider Section 3553 factors, just as at initial
sentencing.13 It is true that the supervised release statute
explicitly refers to the rehabilitation factor: “The court may,
after considering the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)
(1) terminate a term of supervised release . . . ; (2) extend a
term of supervised release . . . ; [or] (3) revoke a term of
supervised release[.]”14 But “a particular purpose may apply
differently, or even not at all, depending on the kind of sen-
tence under consideration.”15 The supervised release statute in
one breath instructs courts on factors to consider when termi-
nating, extending, or revoking supervised release. Courts may
factor in rehabilitation when they are terminating or extending
10
United States v. Tapia, 376 F. App’x 707 (9th Cir. 2010) (unpub-
lished).
11
Tapia, 131 S. Ct. at 2391.
12
Id. at 2385.
13
18 U.S.C. §§ 3582(a), 3583(e).
14
Id. § 3583(e) (emphasis added).
15
Tapia, 131 S. Ct. at 2388.
20678 UNITED STATES v. GRANT
supervised release, because neither of these actions involves
sending a defendant to prison.
Nor do the Court’s reasons for its holding in Tapia suggest
distinguishing it from a revocation case. Tapia explains that
federal sentencing used to be “premised on a faith in rehabili-
tation,” but the Sentencing Reform Act of 1984 had rejected
the idea in part because of the concern that “rehabilitation . . .
had failed.”16 The “recognizing that . . .” phrase might be read
as a “kind of loosey-goosey caution,”17 but the Court read it
to mean “ ‘thou shalt not’ . . . consider rehabilitation,” and to
apply “both [when the court is considering] whether to
imprison an offender and what length of term to give him.”18
The Court read the statute as a broad rejection of imprison-
ment as a means of promoting rehabilitation.19 If prison must
be imposed without considering rehabilitation, on the assump-
tion that prison does not rehabilitate, then there is no reason
to treat imprisonment as a rehabilitation tool upon revocation
of supervised release.
[3] The Court noted the statutory arrangement disabling a
sentencing court from controlling the Bureau of Prisons in
determining what rehabilitation programs to apply to a prison-
er.20 A sentencing court can only recommend, and not require,
that a prisoner be placed in a particular facility or program.21
When it comes to probation or supervised release, on the
other hand, courts may take rehabilitation into account and
have the authority to mandate treatment.22 A sentencing court
would commit no error by “discussing the opportunities for
16
Id. at 2386-87 (internal quotation marks omitted).
17
Id. at 2388.
18
Id. at 2389.
19
Id. at 2390.
20
Id. at 2390-91.
21
18 U.S.C. § 3582(a).
22
Id. §§ 3563(b), 3583(d).
UNITED STATES v. GRANT 20679
rehabilitation within prison” and “urg[ing] the [Bureau of
Prisons] to place an offender in a prison treatment program,”
but the court “may not impose or lengthen a prison sentence
to enable an offender to complete a treatment program or oth-
erwise to promote rehabilitation.”23
Duran is overruled. And the reasons that the Court gave for
overruling Duran apply as strongly to imprisonment on revo-
cation of supervised release as to imprisonment on initial sen-
tencing. Two of our sister circuits have divided on whether
Tapia applies to imprisonment on revocation of supervised
release. The First Circuit held in United States v. Molignaro
that courts are not permitted to consider rehabilitation when
they are revoking a term of supervised release, just as they are
not permitted to do so when they initially sentence a defen-
dant to prison or lengthen his prison sentence.24 Molignaro
takes special note of the incapacity of the sentencing court to
require the Bureau of Prisons to enroll a prisoner in a particu-
lar rehabilitation program after revocation of supervised
release,25 the same reason that Tapia noted in the context of
an initial sentence.26 The Fifth Circuit in United States v.
Breland goes the other way, noting that the supervised release
statute directs a court to certain Section 3553 factors, includ-
ing rehabilitation, and does not include the “recognizing that
. . .” prohibition.27
We think that the First Circuit has the better of the argu-
ments. The point in Molignaro about the incapacity of the
revoking court to order what it considers to be appropriate
rehabilitative measures outweighs the cross-referencing argu-
ment in Breland. The “recognizing that . . .” phrase does not
23
Tapia, 131 S. Ct. at 2392-93.
24
United States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011).
25
Id. at 4.
26
Tapia, 131 S. Ct. at 2390-91.
27
United States v. Breland, 647 F.3d 284, 288-90 (5th Cir. 2011), peti-
tion for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 14, 2011) (No. 11-6912).
20680 UNITED STATES v. GRANT
limit itself, by its words, to initial sentencing, but appears to
embrace all sentences of imprisonment.
We recognize that sentencing judges may have a hard time
following Tapia’s command: “Do not think about prison as a
way to rehabilitate an offender.”28 “[R]etribution, deterrence,
incapacitation, and rehabilitation,” the “four purposes of sen-
tencing,”29 sound more distinct than they really are. A judge
may reasonably think that retribution and incapacitation will
most effectively rehabilitate the criminal being sentenced.
Punishment for wrongdoing is “classical conditioning whose
effects we ordinarily identify as conscience,”30 so the verbal
difference between punishment and rehabilitation may
obscure the fact that they are often the same thing. We make
a child behave by telling him to go to his room, and we make
an adult behave by telling him to go to his room, only his
room has bars. Hopefully both the child and the adult will
internalize a sense of wrongdoing attached to whatever con-
duct caused their confinement.
[4] Nevertheless, Tapia is the controlling statutory con-
struction. So prison, whether as an initial sentence or on revo-
cation of supervised release, can be imposed and the duration
selected only for purposes of retribution, deterrence, and inca-
pacitation, not rehabilitation. When a judge imposes prison,
he may wisely believe that it will have rehabilitative benefits,
but those benefits cannot be the reason for imposing it. On
revocation of supervised release, district judges must make
and articulate their imprisonment decisions in terms of the
other legitimate sentencing criteria. This rule applies both
when determining whether to impose imprisonment and when
determining the length of the prison sentence.
28
Tapia, 131 S. Ct. at 2390.
29
Id. at 2387.
30
James Q. Wilson & Richard J. Herrnstein, Crime & Human Nature
495 (1985).
UNITED STATES v. GRANT 20681
Grant’s sentence is VACATED and the case REMANDED
for resentencing.