United States v. Replogle, 2012 U.S. App. LEXIS 9896

Replogle was sentenced to 360 months for producing child pornography under 18 U.S.C. § 2251(a).
This court’s January 11, 2011 opinion affirmed the district court’s judgment before Tapia v. United States.
Tapia (2011) held that a court cannot impose or lengthen a sentence to promote rehabilitation, under § 3582(a).
On remand, this court considered whether Tapia required relief for Replogle and how preservation/forfeiture issues affected review.
The government agreed remand was appropriate to address Tapia, but argued relief may be foreclosed for multiple reasons.
The panel ultimately reaffirmed the district court’s sentence and held Replogle was not entitled to relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of Tapia claim	Replogle preserved Tapia-based challenge on remand.	No preserved Tapia argument at sentencing; forfeiture applies.	Not entitled to relief; preservation opt-in not satisfied.
Plain-error review standard	Tapia error warrants relief under plain error.	No plain-error; no error proven.	Plain-error standard not met.
Motivation behind 360-month sentence	Court intended longer term to secure rehabilitation.	Remarks were about deterrence, public protection, not rehabilitation drive.	No clear indication that length aimed to foster rehabilitation.

Tapia v. United States, 131 S. Ct. 2382 (2011) (cannot impose or lengthen a sentence to promote rehabilitation)
United States v. Pickar, 666 F.3d 1167 (8th Cir. 2012) (court may consider rehabilitation within prison context; no improper motive found)
United States v. Blackmon, 662 F.3d 981 (8th Cir. 2011) (context of statements about treatment; supports non-rehabilitative purpose assessment)
Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985 (8th Cir. 2010) (panel rehearing not vehicle for new arguments unless compelling)
United States v. Lucas, 499 F.3d 769 (8th Cir. 2007) (en banc considerations; preserves limits on new-argument review)