USCA11 Case: 20-12670 Date Filed: 11/02/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12670
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WILLIAM LUPER, III,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:18-cr-00064-MW-MAF-1
____________________
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2 Opinion of the Court 20-12670
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
John Luper appeals his 36-month sentence imposed after he
pleaded guilty to being a felon in possession of a firearm, in viola-
tion of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He argues that the dis-
trict court plainly erred when it applied a one-point acceptance of
responsibility reduction under U.S.S.G. § 3E1.1(a), and when it
considered his rehabilitation in determining the appropriate sen-
tence in violation of Tapia v. United States, 564 U.S. 319 (2011).
Because we conclude there was a Tapia violation and it affected
Luper’s substantial rights, we vacate his sentence and remand for
resentencing.
I. Background
Luper pleaded guilty to being a felon in possession of a
firearm. 1 At sentencing, the district court acknowledged that Lu-
per had several factors that weighed in favor of a lesser sen-
tence—such as his supportive family, a good job, that he was a
good provider, and that he had never been to prison before—but
stated that it was concerned that Luper’s drug use could lead him
to killing or injuring others while driving a semi-truck. Thus, the
district court stated that it had “to fashion a sentence that doesn’t
1 Luper had a prior 2013 felony conviction for possession of a firearm by an
illegal drug user.
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20-12670 Opinion of the Court 3
put [Luper] back out using drugs.” The district court then ex-
plained that
a combined period of in excess of five years is neces-
sary because [Luper] need[ed] to be clean—when I
say “five years,” five years adding supervision as well
as time in prison is necessary because there’s studies
that suggest at least five years is necessary for sobrie-
ty to give you—makes it far more likely that you
will successfully stay off drugs. Because you are an
addict and you will be an addict until the day you
die. The question is can we give you the mecha-
nisms to stay off drugs.
And I’m going to create that sentence by fashioning
a sentence that the government probably is going to
think is too short and you are going to think is way
too long. . . .
I’m going to give you three years, which is less,
about half the guidelines, which is a significant vari-
ance. . . . I’m going to follow that with three years
of supervision. . . .
The only way that we are going to keep you from
committing similar offenses is to make sure that
you’re not on drugs. And one way I’m going to do
that is three years of forced sobriety, followed by
three years of supervision with drug treatment.
Accordingly, the district court imposed a sentence of 36 months’
imprisonment, to be followed by three years’ supervised release,
which was well below the guidelines range of 70 to 87 months’
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4 Opinion of the Court 20-12670
imprisonment. Luper did not object to the sentence. This appeal
followed.2
II. Discussion
Luper argues that the district court plainly erred and vio-
lated Tapia v. United States, 564 U.S. 319 (2011), when it consid-
ered the benefits of rehabilitation when sentencing him.
When, as here, a defendant fails to object to the alleged
sentencing error in the district court, we review only for plain er-
ror. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014). To prevail under plain error review, a defendant “must
show that the district court made an error, that the error was
plain, and that it affected his substantial rights.” United States v.
Iriele, 977 F.3d 1155, 1177 (11th Cir. 2020). If the defendant satis-
fies these three prongs, then we have discretion to reverse the dis-
trict court “only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id.
In Tapia, the Supreme Court held that federal courts may
not “impos[e] or lengthen[] a prison term in order to promote a
criminal defendant’s rehabilitation.” 564 U.S. at 321. And we
have held that “Tapia error occurs where the district court con-
2 Initially, Luper’s counsel filed a motion to withdraw as counsel along with
an accompanying brief, pursuant to Anders v. California, 386 U.S. 738 (1967).
A judge of this Court denied the motion, concluding that a review of the
record revealed issues of arguable merit, and ordered counsel to file a merits
brief on the two issues set forth in this appeal.
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20-12670 Opinion of the Court 5
siders rehabilitation when crafting a sentence of imprisonment.”
Vandergrift, 754 F.3d at 1310 (emphasis in original). Here, the
record establishes that the district court considered Luper’s need
for rehabilitation when crafting his sentence, which was plain er-
ror under Tapia and Vandergrift.
Nevertheless, Luper must show that the error affected his
substantial rights. In Vandergrift, we concluded that a Tapia er-
ror did not affect the defendant’s substantial rights because it was
clear from the sentencing transcript that the rehabilitative consid-
erations were only “a minor fragment of the court’s reasoning”
and that “[t]he court’s primary considerations were for the safety
of the public and deterring others from similar conduct.” Id. at
1312 (quotation omitted). Unlike in Tapia, however, in Luper’s
case, the rehabilitative consideration was not a “minor fragment
of the court’s reasoning.” Instead, Luper’s rehabilitation was the
primary concern and driving force behind his sentence. The dis-
trict court explained that it was imposing the sentence it did in
order to get Luper off of drugs by “three years of forced sobriety,
followed by three years of supervision with drug treatment.”
Thus, we conclude that there was an error, the error was plain,
and it affected Luper’s substantial rights because the sentence im-
posed was based primarily on Luper’s need for rehabilitation in
violation of Tapia and Vandergrift. Consequently, we exercise
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6 Opinion of the Court 20-12670
our discretion to correct this error, and we vacate Luper’s sen-
tence and remand this case to the district court for resentencing.3
VACATED AND REMANDED.
3 Luper also argues that the district court plainly erred in the guidelines cal-
culation when it applied a one-point acceptance of responsibility reduction
under U.S.S.G. § 3E1.1(a). We held in United States v. Carroll, 6 F.3d 735,
741 (11th Cir. 1993), that § 3E1.1(a) does not authorize a single-point reduc-
tion for “partial” acceptance of responsibility. Thus, on remand, the district
court should also reconsider this issue.