*1 this emphasizing We close discussion setting re general
that we are not
forth a
SEALED CASE.
cases,
choice-of-law rule for terrorism
No. 08-3029.
merely applying the District of Columbia’s
rules to the facts of a case filed under
Appeals,
States Court of
1605(a)(7).
that,
§
former
And we note
District of Columbia Circuit.
for terrorism
filed
cases
under the new
Argued April
2009.
1605A,
plaintiffs whose cases meet the
requirements
statutory
now have a federal
July
Decided
2009.
1605A(c);
cause of action. See 28 U.S.C.
Simon,
3. concluded French law
governs the assassination of French-domi-
ciliary France, Gholam Oveissi we do plaintiffs arguments address the
the district court misconstrued California Campbell’s
law and Lord dismissing Act in suspect claims. We have no reason to
that French and California law are the respect
same with IIED claims. And every
we have reason to doubt that France adopted the equivalent of an Brit-
ish statute to govern wrongful-death
claims in its courts. our Accordingly,
opining on California Camp- law Lord
bell’s Act would be point. beside the We
leave it district court on remand to the plaintiffs
evaluate claims under
French law.
IV reasons,
For the foregoing we reverse
the judgment dismissing the plaintiffs complaint,
amended and we remand the
case for further proceedings consistent opinion.
Reversed and remanded.
related wrongful-death IIED and claims issue here. *2 the cause and argued
Jonathan Zucker for appellant. filed briefs Coleman, Nicholas P. Assistant U.S. At- lumbia authorities arrested defendant and torney, argued appellee. the cause Superior later him in charged Court Jeffrey With him brief were A. of the District Columbia with unlawful *3 Taylor, Attorney, Roy U.S. W. possession distribution of heroin and of III, Trosman, McLeese Elizabeth heroin intent to distribute. After Whitted, Kenneth F. Assistant U.S. Attor- protracted plea negotiations, defendant ac- neys. cepted cooperation agreement entailing transfer of his case to the United States HENDERSON, TATEL, Before: District Court for the of District Colum- GARLAND, Judges. Circuit bia, pled where he guilty to unlawful dis- tribution, 841(a)(1), § see 21 U.S.C. Opinion by the Court filed Circuit (b)(1)(C). Judge subsequent TATEL. Defendant’s at- tempts cooperation produced little of Opinion concurring part and use government ultimately end- dissenting filed part Judge Circuit ed when failed a drug he test. HENDERSON. Defendant’s crime of distribution of less TATEL, Judge: Circuit than grams five of set heroin his federal years Sentenced eleven af- Sentencing Guidelines offense base level at ter pleading guilty to unlawful distribution Sentencing 12. U.S. Guidelines Manual heroin, 2.1 grams appeals, 2Dl.l(c)(14) (2007). § Although the dis- arguing that the improperly district court trict court based the offense level on only sought promote rehabilitation 2.1 grams of heroin involved in the through imprisonment. incident for arrested, which defendant was Although object defendant’s failure defendant’s criminal history category of VI the district reasoning court’s at sentencing long-term reflected his involvement with review, limits us to agree we dealing heroin and related crimes. Be- § that 18 expressly prohib- U.S.C. cause cooperation efforts were its sentencing courts treating rehabil- unfruitful, ultimately government de- itation as a reason for imposing a longer clined to request departure a downward term of imprisonment. light of this assistance, 5K1.1, § for substantial id. provision, clear statutory and because this acknowledge did that defendant was en- case also remaining meets the elements of titled acceptance to credit for responsi- test, the stringent plain error we vacate bility, § id. (providing 3E1.1 for two-level the sentence and remand for resentencing. acceptance responsibility plus credit ad- Also, in accordance general prac- with our ditional one-level decrease certain cir- tice government’s concession, and the we cumstances for base offense levels of 16 or remand defendant’s claim additional higher). Finding cooperation he efforts received ineffective assistance coun- good faith, sel. agreed an acceptance responsibility credit was I. Together warranted. defendant’s base of- level, fense criminal Defendant, history category, a 56-year-old addict, drug acceptance responsibility sold worth of credit heroin to an $20 undercover yielded officer. have Approached by guidelines range officers to 30 shortly sale, after the prior felony months. Defendant’s discarded 32 ad- convic- tions, however, ditional ziplock bags of a substance triggered the sentence en- positive tested for opiates. offenders, District of Co- hancement career id. 3553(a)(2)(D). that a believing § 4B1.1, automatically increased his While which for, to 151 to 188 months. sentence was range “substantial” called guidelines that his district court reassured defendant advisory guide- Having calculated prospect would allow “the of re- sentence weighed sev- range, the district lines point lease in the future.” Sen- at some listed in 18 factors eral end, Tr. 33. In the the district tencing na- Beginning with the U.S.C. that a below-guidelines court concluded offense, court, the district ture of the sentence of 132 months was “sufficient but of her- recognizing seriousness though necessary acknowledged specific greater comply than dealing, oin *4 ar- sentencing for which defendant was out purposes transaction with the of as set only quantity 3553(a).” of small rested involved in factors in Section the various court district also considered drugs. The recommending that be Id After history, criminal which lengthy defendant’s prison’s drug admitted “500-hour” addiction, drug saying: his it attributed to 34, program, id at the district treatment parts history that of important The most take encouraged advantage him to the fact that the defen- up simply to add drug programs and educational treatment using drugs has been involved dant at prison, his time id during 37. activity that is con- criminal appeals, arguing now Defendant use, the heroin distri- junction with imprison- improperly treated insignificant small' —not bution trade and a means ment as rehabilita- kinds, pre- of various small thefts consequently imposed longer tion and support the habit. sumably help also prison term. Defendant claims Sentencing 29. The district court Tr. he received ineffective assistance of coun- recidivism rele- pattern viewed this during plea negotiations. Accepting sel 3553(a) the section sentenc- vant one of concession that we government’s factors, namely, protect the need to ing claim an evi- remand the latter should activity. criminal See from further public dentiary hearing under United 3553(a)(2)(C). Next, colloquy in a cen- (D.C.Cir. Rashad, us, the before district tral to the issue 2003), only the sentencing need address we factor under turned to “another challenge. 3553(a),” stating: may the defendant bene- I do think that II. and edu- programs fit from some Because trial counsel medical treat- training cational sentencing, object at we review failed to in the federal ment is available sentencing claim error. Unit actually and that would prison system, 658, 665 Mouling, ed v. States more useful for more available and (D.C.Cir.2009). standard, de Under over a somewhat the defendant the error oc fendant must show very it over a of time than would period curred, it “plain,” was period of time. short rights. his substantial affected imposing Sentencing Tr. 31-32. Before Olano, 507 U.S. States sentence, court reiterated the district (1993). If S.Ct. L.Ed.2d factors, “the including need the relevant met, are we elements these three the defendant with needed provide ... if “seri only we find that reverse training other or vocational educational fairness, ously integrity pub affects system in an in the correctional treatment 32; judicial proceedings.” Id. lic reputation manner.” Id effective (internal quotation marks and brackets statement that defendant “may benefit omitted). programs from some and education- al training the medical treatment sentencing challenge in-
Defendant’s prison system, available federal interplay statutory between volves two actually and that would be more available provisions governing criminal sentencing, and more useful for over a [him] somewhat which both of refer the role rehabili- first, longer period of than it tation. The section is the fa- time would over a provision governing sentencing very miliar all Sentencing short of time.” Tr. “[imposition Entitled determinations. of 31-32. sentence,” it directs courts to part, For the government sees no “impose a sentence sufficient but not approach. error in the district court’s Al- necessary” than greater comply though acknowledging purposes four enumerated of sentencing. bars a court from choosing a (a)(2)(A), (B), Subsections prison term over a non-incarceration sen- (C) goals providing just set forth the tence because the rehabilitative *5 crime, punishment, deterring further grams in prison, government available the protecting public. the Id. And central to insists that sentencing once the us, (a)(2)(D), the issue before subsection makes initial the decision to a imprison sentencing courts directs to consider the defendant, may then treat those same provide need for the sentence “to the de- rehabilitative as a concerns reason to im- fendant with needed educational or voca- pose longer imprisonment. a term of Ac- care, training, tional medical or other cor- cording government, to the interpreta- rectional treatment the most effective 3582(a) tion of section avoids a conflict 3553(a)(2)(D). manner.” 3553(a)(2)(D), requires section which Sentencing courts must by also abide sentencing courts to consider rehabilitation here, provision
the second at issue section as a purpose sentencing. 3582, “[i]mposition which covers of a sen- The issue before us—whether section imprisonment” tence of forth sets the 3582(a) a sentencing allows to treat to be imposing “[f]actors considered in a rehabilitation as a lengthening reason for a imprisonment,” § term of It prison vides: term —has divided our sister circuits. court, The Ninth has held that determining The whether to 3582(a) although impose a term section bars imprisonment, and, sentencing if a imprisonment choosing term of courts from imposed, is to be rather than a in determining length term, of the non-incarceration promote sentence to re shall consider habilitation, the factors forth in set it allows sentencing courts to section they extent that longer select a prison term promote applicable, are recognizing impris- rehabilitation. See v. United States Du onment is not an appropriate means of (9th ran, Cir.1994). 557, 37 F.3d The promoting correction and rehabilitation. Eighth adopted Circuit has also this inter Id. pretation. See United States v. Hawk (8th Wing, Cir.2006); 629-30
Relying
3582(a),
on section
see also United States v. Giddings, 37 F.3d
argues that a sentencing court errs if it
(5th Cir.1994)
(noting
a
1096-97
imposes
longer
a
imprisonment
as
involving
a
case
rehabilitating
supervised
means
a
revocation of
defendant. Ac-
re
defendant,
cording
lease
3583(g)
under
making
courts
just
that,
here did
as
evidenced
initial
impose
decision can
prison,
courts
for rehabili
fendant
imprisonment
longer term of
Jackson, 70 F.3d
tation);
v.
as a means of reha-
imprisonment
not use
Cir.1995)
(6th
(citing
n. 6
879-80 &
bilitation.
re
supervised
a revocation
Duran
3582(a)’s
lan-
straightforward
Section
case,
“it
although acknowledging that
lease
government’s
no
for the
guage leaves
room
a distinction between
to see
is difficult
selecting prison rather
distinction between
imprisonment
of a sentence
imposition
imposing
non-prison
than a
sentence
By
length
imprisonment”).
imprisonment.
a textual
longer term of
As
contrast,
held
Circuit has
the Third
matter,
government
explains
nowhere
3582(a)’sbar on
rehabil
promoting
section
impris-
“recognizing
how
phrase
applies to
through
itation
appropriate
not an
means
onment
imprison
a de
both decisions—whether
modify
promoting ...
can
rehabilitation”
impose
and whether
fendant
all
(“in
3582(a)’s
clause
determin-
first
v.
prison term.
States
ing
imprison-
a term of
impose
whether
(3d
Manzella,
Cir.
(“in
ment”)
determining
not its
second
2007).
Circuit
reached
The Second
term”).
As matter of
length
result,
unpublished
though in an
the same
Yehuda,
logic,
government’s position
is likewise
v.
opinion. United States
(2d Cir.2007) (“[Reha
If,
government
con-
untenable.
Fed.Appx.
permissible
not a
basis for
cedes,
appropriate
...
is not an
bilitation
imprison
increasing
term
rehabilitation,
[defendant’s]
can
means of
how
Tsosie,
ment.”);
see also United States
*6
as an
imprisonment
appropri-
more
serve
(10th Cir.2004) (ac
1210, 1213-14
F.3d
promoting
ate
of
rehabilitation?
means
term of im
that “the initial
knowledging
point nicely.
This
demonstrates the
case
by 18
always limited
U.S.C.
prisonment is
government’s theory,
the
the dis-
Under
Brown, 224
3582(a)”);
§
by
imprison-
choosing
trict court would err
Cir.2000)
(11th
(noting
than,
help
say, probation
ment
to
rather
not
the
sentencing
courts
“extend
that
“benefit from some of the
defendant
purpose
...
for the
imprisonment
of
term
the
grams
training
and educational
treatment”
providing ...
rehabilitative
of
is available in the
medical treatment
that
Harris, 990 F.2d
(quoting United States v.
system,” Sentencing Tr.
prison
federal
(11th Cir.1993)
(interpreting 28
yet
choosing
commit no error
to
994(k)))).
§
U.S.C.
keep
longer
in
to benefit
prison
defendant
plain language
the
of sec
Given
programs
from those same
that would be
3553(a)
3582(a),
agree with
we
tions
more useful for [him]
“more available and
Third
that sen
the
and Second Circuits
time
longer period
over a
of
somewhat
may not treat rehabilitation
tencing courts
time,”
period
very
than ... over a
short
of
longer
imprison
of
as a reason for a
term
id. at 31-32.
3582(a) expressly states
ment. Section
3582(a)’s
escape
to
section
Attempting
...
the
determining
that “the court
in
urges us
language,
government
clear
the
shall
length
imprisonment],
the term [of
of
reasoning,
to
the Ninth Circuit’s
follow
factors
forth
consider the
set
i.e.,
Congress
if
had
to bar
wanted
3553(a)
they are applica
to
the extent
a reason
of rehabilitation as
consideration
ble,
recognizing
imprisonment
to
a
it “could have en-
increase
sentence
promoting cor
appropriate means
an
of
judges to
a statute that admonished
(em
acted
§
rection and rehabilitation.”
length
imprisonment
‘that
the
added).
recognize
thus
Congress
spoke
phasis
keep
appropriate
is not
long
imprisonment
to
a de-
clearly:
deciding
how
of
promoting
correction
reha-
means
priate
promoting
means
correction and
”
Duran,
added)
But
bilitation.’
561.
(emphasis
rehabilitation.’
Id.
provide
had no
to
such
Congress
3582(a)).
need
in-
given
express
clarification
the statute’s
aIn further
to
distinc-
support
effort
courts must rec-
struction
between
tion
the decision to sentence a
ognize
inappropriateness
imprison-
the
prison
to
at all
and the selection
choosing
both in
ment for rehabilitation
term,
longer
government points
of a
the
to
a
imprisonment rather than
non-incarcera-
It
legislative history.
high-
section 3582’s
determining
“in
tion sentence and
lights
passage
following
the Senate
length
the term.”
As the
Report:
explained,
possibility
“[t]he
Third Circuit
3582(a) specifies,
light
“[Section
]
clearly
that a
statute
be
might
worded
knowledge,
current
judge
more clearly
negate
even
worded does not
recognize,
determining
should
wheth-
already
the fact that it is
clear.” Manzel-
impose
term
er
a
of imprisonment,
la,
851 clauses, pursues goal through tion means to each of its gives effect 3582(a) a allowing incarcerating and section other than section while 3553(a) unique roles play prison longer. their him in keeping statutory agree thus scheme. We Here, stated a section nar Circuit that Third the defendant would from benefit the former scope than section 3553: rower over programs rehabilitation imprisonment, while specifically with deals time,” “somewhat indicat imposition of a the latter addresses sen ing it rehabilitation as viewed rea tence, encompasses concept that a broader lengthen imprisonment. son a term as imprisonment probation as well “recognize[e] The thus failed to Manzella, 158; at fines. See imprisonment appropriate not an means 3553(a)(3) sentencing (instructing § also correction and rehabilita “the kinds of sentences courts to consider 3582(a). tion,” course, nothing § Of available”); § (listing as U.S.C. 3582(a) sentencing prohibits courts “[ajuthorized fines, probation, sentences” considering from rehabilitative needs for Together, imprisonment). sections reasons, selecting other such as short 3582(a) 3553(a) sentencing instruct er or in imposing to consider rehabilitation one courts non-incarceration sentence. Such deci but bars them purposes fully comply statutory sions would with the seeking rehabilitation to achieve imprison “recognize[e] command to Manzella, imprisonment. through See not an appropriate pro ment is means 158; 475 F.3d at see also United States rehabilitation,” § moting (2d Cir.1992) Maier, 946-47 the difference between “sen (explaining us, then, brings plain This “imprison under tence” error test’s second element: whether the 994(k), provides ment” under which an error “plain.” Generally was “reflect the guidelines must plain Supreme if it contradicts circuit or imposing a sentence inappropriateness precedent. binding Court Even absent purpose for the a term law, however, case an error if can S.Rep. defendant”); rehabilitating norm, “absolutely legal violates clear” 98-225, (explaining No. clarity example, “for because of the of a rejected had committee the view reha provision.” statutory United States v. completely bilitation be eliminated should (D.C.Cir.1993). Merlos, This *8 as purpose sentencing, but above, just explained is As such case. “[ijnstead ... rehabilitation and retained 3582(a) speaks clarity with absolute appropriate purpose as of a corrections an 849-50; point. supra on at See cf. sentence, recognizing while ... that ‘im 734, Olano, 507 at U.S. 113 S.Ct. prisonment is an appropriate means of (“plain” synonymous with “clear” “ob ” rehabilitation,’ promoting correction and vious”). noting purpose that “the of rehabilita view, government’s In the the circuit important determining tion is still split necessarily means that on this issue a sanction other than whether plain. the could not have error been We appropriate particular in a sure, To as omitted)). disagree. dissenting our (footnotes Thus, far case” from out, Dissenting Op. points at fears, colleague government the conflict the creating 854-55, recognized that a division we have comfortably provisions these harmonize authority given point may provide on with each other in a rational scheme that error, an sentencing goal question plainness rehabilita- retains the cause lacking so cases we did kind of rehabilitation. The district statutory language clear issue here. expressly stated that it believed that See, Baldwin, e.g., United States v. 563 defendant benefit the prison (D.C.Cir.2009) 490, 491-92 (involving system’s programs rehabilitative over a question whether a court may district longer period “somewhat of time.” Sen- “delegate[ authority ] its to determine [de tencing Tr. 31-32. Even such an absent restitution obligations”); United fendant’s] duration, express link to sentence we have Andrews, States v. 532 F.3d 908-909 impermissible found direct invocation of an (D.C.Cir.2008) question (involving sentencing factor to establish a reasonable district whether a court’s use of a later prejudice. Joaquin, likelihood of See version the sentencing guidelines violat (holding F.3d at 1293-94 that the district clause); ed the ex facto post specific impermis- court’s reference to Sullivan, (D.C.Cir. 451 F.3d 895-96 sible factor of prior defendant’s arrest rec- 2006) (involving question whether a concluding ord before that defendant court-imposed ban on internet use as a posed a risk of recidivism was sufficient to supervised condition release fits the establish prejudice). statutory goals broad enumerated in The government argues that even ab- 3583). Moreover, we have not hesitated error, sent unlikely defendant was to have to deem an error involving clear language “very received a short” sentence. This plain, when even another circuit consid misses the point. question The isn’t ered provision ambiguous enough prison whether defendant’s term would finding plain defeat a error. United just have drastically been wheth- shorter — Joaquin, States v. er it reasonably was likely prison (D.C.Cir .2003). term long would not have been as had the Moving on to the permissible only considered inquiry, test’s third we ask whether the sure, factors. To be government as the error affected the defendant’s “substantial dissenting and our colleague emphasize, rights.” To show an impact “substan see Dissenting Op. at the district court context, tial rights” “ considered factors other than rehabilita- ‘must show a reasonable likeli tion, such as the seriousness of offense hood that the sentencing court’s obvious history defendant’s criminal pat- Olano, errors affected sentence.’ tern of recidivism. But the court’s invoca- 734, 113 U.S. at S.Ct. 1770 tion of negates these factors hardly its Saro, (D.C.Cir. express reliance on rehabilitation 1994)). held, As we have the reasonable programs, especially given repeated likelihood standard “is somewhat more re problems references to drug laxed in the area than it is and its view that defendant’s criminal his- errors, for trial since ‘a resentencing is tory largely drug stemmed from his addic- near costly nowhere as chancy *9 ” tion. event trial.’ as a United States v. Go mez, (D.C.Cir.2005) F.3d 431 822 Having determined that defendant has Saro, 288). (quoting 24 F.3d at error plain demonstrated that was and that his standard, rights, affected substantial
Given this we we conclude that finally must defendant has shown a decide whether error reasonable likeli- seri- fairness, ously hood that his pub- sentence would have affects the or integrity been shorter reputation judicial had the district court lic properly proceedings such viewed imprisonment inappropriate as for that we should exercise our discretion to
853 Indeed, Olano, through imprisonment. seeking 113 to U.S. it. 507 correct to repeatedly opted a 1770. We have meet defendant’s rehabilitative needs S.Ct. that, if left sentencing errors plain way Congress inappro correct that has deemed a in a uncorrected, defendant would result 3582(a), exactly priate, represents See, e.g., Unit serving longer a sentence. judicial that impugns the kind of error Watson, ed States v. Joaquin, F.3d at 1294 process. Cf. (D.C.Cir.2007) (“[L]eaving place an er (reversing plain a sentence under error would have been ror-infected sentence because “reliance on information review and that absent error materially different by deemed unreliable the Sen expressly seriously readily would could be corrected seriously tencing Commission affects the fairness, integrity, public and affect the integrity judicial proceed fairness and (altera judicial proceedings.” reputation ings”). (internal marks quotation in original) tion Because this case meets the standard omitted)). true We The same is here. error, plain for we vacate defendant’s sen- pris say keeping cannot proceedings for further tence remand reasons would improper for on so, this In opinion. doing consistent with fairness, integrity, public leave emphasize disposition in no we this un judicial proceedings reputation of way requires the district court to shorten Coles, 403 scathed. See Rather, the sentence on remand. the dis- (“We (D.C.Cir.2005) are also trict court remains free to resentence the that, if the Court’s error District convinced appropriately, either reim- ‘seriously would the error prejudicial, was solely posing same sentence based fairness, integrity, public or affectf] the by resentencing if in permissible factors As the judicial proceedings.’ reputation observed, lengthen the sentence to aptly is fact did ‘[i]t Circuit Seventh justice give a miscarriage person mote rehabilitation. punish that increases his illegal sentence So ordered. ment, just it is convict an innocent Pala United States v. person.’ HENDERSON, KAREN LeCRAFT (7th Cir.2005))). dino, concurring part Judge, Circuit case, see no the facts we Given dissenting part: factors,” “countervailing Puckett v. United Although agree my colleagues I with — States, 1423, 1433, U.S.-, 129 S.Ct. we remand the defendant’s should (2009), suggest that we 173 L.Ed.2d evidentiary claim for an Sixth Amendment to exercise our discretion should decline agree majority’s I with the hearing, do correct the error. va- that his sentence should be conclusion re- “the According government, resentencing. cated and remanded possibility appellant may mote serve reasons, I affirm following For the help in order to slightly longer sentence the sentence. drug dependency him overcome error, reviewing plain sentence hardly impugns kind of ‘error’ exists “[pjlain we have held error given that
judicial process, addiction (1) (2) that is ‘where there primary appellant’s cause been the (3) rights that affects substantial Br. at 30. Appellee’s criminal behavior.” (4) appeals finds the error the court of nothing more argument This amounts fairness, seriously integrity, affects the de- disagreement Congress’s than *10 judicial proceedings.’ reputation may public courts termination Brown, 516 to defendant United attempt not rehabilitate 854 (D.C.Cir.2008) Again, I have assessed this based on all Andrews, (D.C.Cir. 3553(a), the factors under Section includ- omitted)).
2007) (internal quotations The 3553(a)(2)(A), in ing particular those in alleges the court district which are the need to reflect the seri- longer impris- him to a term of sentenced offense, promote respect ousness the promote onment in order to his rehabilita- law, just the provide punishment argues doing tion and so constituted offense, the afford adequate to deter- sentencing, At error. the district others, rence both to the and court stated the defendant’s offense to protect public the from further contributing to drug was “a serious crime provide crimes of the defendant to blight community drugs.” the the the defendant with needed educational Tr., Case, Sentencing No. re Sealed Cr. training or vocational or other treatment (D.D.C. (Sen- 2008) 07-0015, Apr. at 27 system in the correctional effective Tr.). tencing The court characterized the manner, is, all of which when considered history “lengthy,” defendant’s criminal Court, designed the result id. at “coming noted his “trend” of great- sentence that sufficient context, justice out of some criminal necessary. er than supervision whether it be incarceration or Id. at 32-33. “[T]aking all of that into ..., engaging activity and still criminal account,” the court “a concluded that sen- [including] .... incarceration] for viola- guideline range tence less than the is war- of [supervised] tions of his conditions re- Nevertheless, ranted.” Id. at 33. lease,” added). at (emphasis id. The court decided a “substantial” sentence was court also found relevant the defendant’s appropriate and sentenced the defendant years. at age of 29. defen- Id. The to 132 months’ and 36 lengthy dant’s history and recidivist “l[ed] supervised months’ release. at 33-34. Id. observe, Court consistent with one The court also “recommend[ed] [the 3553(a), of the factors under is a there be defendant] admitted to the Bureau of need protect public from further drug Prisons’ residential abuse treatment activity.” criminal at 30. At close Id. program, what is called the pro- 500-hour of its discussion of the factors it deemed gram while incarcerated.” Id. at 34. sentence, relevant to selecting a stated: foremost, First and the court did not
Now, err, otherwise, respect to another un- plainly factor because did not 3553(a), I der do think that the defen- in fact longer sentence the defendant to a dant benefit from some of the to promote order grams and training educational and the noted, rehabilitation. As the court focused medical treatment available on the criminal lengthy defendant’s history system, federal and recidivist tendencies after peri- even actually more available and ods of incarceration. It mentioned reha- more useful for the defendant over a briefly bilitation at the of a close more somewhat period of time than it lengthy discussion the other factors un- very would over a short of time. 3553(a)(1) (2). der 18 U.S.C. And 31-32; recidivism, Id. even with the U.S.C. 3553(a)(2)(D). imposed The court an- a sentence below then well guidelines nounced the sentencing range guidelines range. emphasis Its nonethe- as 151 Sentencing months. Tr. at imprison- less remained on need for 32. It iterated: protect public ment from career
855
Manzella,
Moreover, even
assuming
v.
error
United States
offender.1 Cf.
has
plain, the defendant
failed to “demon-
(3d Cir.2007) (vacating sen
F.3d 152
475
strate ‘a reasonable likelihood that the sen-
of 30 months’
tence
—well
tencing court’s obvious errors affected his
range
2 to 8
guidelines
above
Williams,
United
v.
sentence.’
States
had
imposed
months —
(D.C.Cir.2004)
956,
966
358 F.3d
participate
allow
solely to
Saro,
283,
v.
24
288
F.3d
program).
drug treatment
(D.C.Cir.1994)).
In view of the district
emphasis
court’s
on the
dec-
Second,
the district court in
assuming
inability to refrain from criminal
ades-long
to a
sentenced the defendant
fact
incarcerated,
activity
length of
unless
order,
part,
any
the sentence was
desire
unaffected
rehabilitation,
Majori-
but see
promote
to accord the defendant one more chance
853,
assuming
Op. at
further
ty
short,
at rehabilitation.
I believe the
erroneously,
did so
that error
the court
imposed
court would have
the same sen-
plain.
requires
not be
Plain error
any
im-
irrespective
tence
rehabilitation
“
or, equivalently,
error
‘clear’
therefore the
was not
pulse and
Olano,
v.
States
507
‘obvious.’” United
Because
has
prejudiced.
the defendant
1770,
123
113 S.Ct.
L.Ed.2d
U.S.
the first
prongs
plain
not satisfied
three
(1993).
the limitation con-
review,
Whether
I need not
whether
reach
fairness,
seriously
“the error
affects the
in the
clause of section
tained
last
reputation
judicial
integrity,
public
or
impose
decision to
im-
applies both
Andrews,
proceedings.”
Andrews, (same); at 909 Sullivan,
States
(D.C.Cir.2006) (same). relatively now even after some short court noted that “there’s little in the
1. The way showing the defendant wants or Sentencing Tr. at 31. incarceration.” law in able to conform his conduct defendant has not shown the future’’ “the ability law any to conform his conduct to the