United States v. Henderson, 2011 U.S. App. LEXIS 13923

Henderson, a felon in possession of a firearm, was sentenced outside the guidelines (60 months) to promote rehabilitation.
District court stated the sentence was an 18 U.S.C. § 3553(a)(2)(D) sentence to provide training, counseling, and substance abuse treatment.
Guideline range was 33 to 41 months; court used upward departure to enable program participation inside prison.
Henderson did not object at sentencing; inquiry about reasons for the sentence yielded procedural no objections from defense.
Eight days later Henderson moved under Rule 35(a) to correct the sentence, arguing violation of 18 U.S.C. § 3582(a).
District court denied the Rule 35(a) motion; Henderson appealed arguing Tapia error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of error under Rule 35(a)?	Henderson preserved error via Rule 35(a).	Henderson failed preservation because Tapia error was not obvious at the time.	Rule 35(a) motion did not preserve the error.
Whether Tapia error is plain error on appeal?	District court erred by lengthening sentence to promote rehabilitation under Tapia.	No preserved error; even if error, not plain because Tapia announced after trial.	No plain error established; judgment affirmed.

Tapia v. United States, 131 S. Ct. 2382 (2011) (imposing or lengthening a sentence to promote rehabilitation is error)
United States v. Ross, 557 F.3d 237 (5th Cir. 2009) (rule 35(a) preserves only obvious arithmetic/technical errors)
United States v. Booker, 543 U.S. 220 (2005) (mandatory guidelines error for judge-found facts)
United States v. Watkins, 450 F.3d 184 (5th Cir. 2006) (rule 35(a) preservation discussed in Booker context)
Puckett v. United States, 556 U.S. 129 (2009) (waiver doctrine purpose to allow district court to resolve errors)
United States v. Vega, 332 F.3d 849 (5th Cir. 2003) (error not plain when not previously addressed)