*1
dismissing Aрpellants’
failure-to-warn
experience,”
nel with
Totten v. United
States,
(6th
698,
Cir.1986),
claim.
806 F.2d
relating
decisions
to the amount of
E.
personnel
assign
particular task,
to a
p
ex rel.
Sharp
Estate
v. United
Finally, Appellants’
negligent Shar
States,
(6th
440,
Cir.2005),
all
by
abandonment claim is also barred
policy
are
trigger
considerations that
discretionary
exception.
function
The dis
discretionary function exception. Answer
explicitly
trict court did not
Ap
address
ing
question
whether the Water Man
pellants’
Corps’
claim that the
Nashville
ager should have remained in his office
Manager
District
negligently
Water
aban
throughout the storm necessitates similar
post during
doned his
the storm. We have
policy balancing. The
Manager’s
Water
jurisdiction to review this claim because
conduct satisfies both prongs of the Gau-
implicitly
we conclude
it was
denied.
bert test. The district
Co.,
court did not err
See Ford Motor
water releases could have been increased claims. throughout night. Appellants allege “during Manager’s Water ab- sence, the repeatedly NWS tried to contact
Corps officials about weather forecasts and
discharge information” but “[t]hose calls
went Appellants’ unanswered.” Br. 60. however,
Appellants, do not contend that Manager mandatory the Water violated a America, UNITED STATES of remaining directive at his desk for Plaintiff-Appellee, days nights. They two and two focus sole- ly alleged on whether abandonment Joseph KRUL, Michael Defendant- grounded in public policy, the second Appellant. part of the Gaubert test. Ibid. In the absence of a regulation requir- or directive No. 13-2451. ing that Manager the Water remain at his Appeals, United States Court of event, post during the entire flood Sixth Circuit. Manager Water has discretion area, meaning that “strong pre- there is .a 7, Argued: Aug. 2014. sumption” Manager’s that the Water con- Decided and Filed: Dec. duct meets the second part of the Gaubert test as well. We have held that decisions
concerning agen- “the allocation of limited resources,”
cy Lockett v. United Cir.1991), “time availability person-
constraints and the *2 Berens, Sally
Michigan, Appellant. for J. Office, Attorney’s Grand States United Michigan, Appellee. for ON Rapids, Nelson, Public BRIEF: Paul L. Federal Office, Michi- Rapids, Grand Defender’s Green, Phillip J. Unit- gan, Appellant. for Office, Attorney’s Rapids, Grand ed States Appellee. for Michigan, GRIFFIN, Before: ROGERS TATENHOVE, Judges; and Circuit VAN Judge.* District ROGERS, J., opinion delivered court, TATENHOVE, in which VAN GRIFFIN, J., D.J., joined in joined, and 376-83), GRIFFIN, (pp. J. the result. concurring separate opinion delivered a judgment. OPINION ROGERS, Judge. Circuit defendant, Krul, ap- Joseph Michael ground on the that the peals his sentence sentencing judge length of his based contrary goals, on rehabilitative holding — -, 2382, 2392, (2011). case, however, That L.Ed.2d reversal where there is an requires concluding that the identifiable basis of the sen- district court based part incarceration in on rehabilita- tence of no basis. tion. In this case there is such the then-felon In the summer handgun out of his Krul tоok a 9mm Glock provided the fire- friend’s basement. deal, but the drug arm collateral for a it to Krul after refused to return dealer completed. A chain trans- the deal was Nelson, weapon into eventually brought fers Paul L. Federal ARGUED: Dantzler, Office, who used the hands of Roderic Rapids, Public Defender’s Grand Tatenhove, designation. Kentucky, sitting by Gregory Van District of *The Honorable F. Judge United States District for the Eastern weapon spree. domestic), on a murderous There assaults (including and other as- that Krul is no indication could have antici- charges, sorted finally arriving at the Dantzler pated that would ever come into present felony. federal reciting After possession gun, gun or that litany of prior Krul’s criminal offenses— would used to cause such havoc. Thоse thirty over court discussed Krai’s —the transferring involved in the firearm were mental history, health including diagno- *3 targeted prosecution. for The one to sis of Oppositional Defiant Disorder and a initially Krul gun whom transferred the history of point, substance abuse. At this cooperated with law enforcement authori- the district court following made the state- ties, eventually Krul and and the one that ments, which contain everything relied weapon transferred the to Dantzler were upon by Krul to assert a violation: indicted. brings So that us to today, and that pled guilty being
Krul
felon
brings us to the question of the sen-
firearm,
possession of a
in violation of 18
tence, looking at the nature and circum-
§ 922(g)(1).
sentencing,
U.S.C.
At
both
stances
this offense in light of the
agreed
Government and Krul’s counsel
I
history
just
hаve
recited in conclusive
proper
Sentencing Guidelines
form. I think this was a serious offense.
range, based on the
offense
conviction
It
part
showed
of a continuation of no
prior
and Krul’s
criminal history, was 51 to
laws,
respect for
respect
no
for orders
63 months. The court sentenced Krai to
that we all in community
society
and a
imprisonment,
63 months of
to be followed
have to
you
follow. And I’m sure
have
years
supervised
three
release with
explanation
every
for
one of them.
various strict conditions.
off,
you
Someone ticked
someone disre-
spected you, things
way
weren’t
appeals,
Krul now
arguing that
should have been. But I
af-
have to
some of the
during
court’s statements
sen
ford—this sentence has to afford an ade-
tenсing imply that the cometimpermissibly
quate deterrence to criminal conduct
factored
length
rehabilitation into the
certainly
protect
and
has to
public
Although
sentence.
rehabilita
educational,
provide you
with some
tion is a main theme of
correctional, and medical
hearing, the transcript does not reveal the
the same
tough
time.
It’s a
balance to
particular
improper purpose that Krul
follow in this matter.
Rather,
claims it does.
the record demon
strates
carefully
district court
I think it requires
you
be taken out
other,
considered
permis
rehabilitation for
community
you
of the
for a while and
purposes
sible
and that Krul invited the
given
programmatic
some
opportunities,
discussion of rehabilitation
emphasizing
you’ve already
some of which
started.
during
rehabilitation
his own statement.
Forgotten Man Ministries and other
things you’ve
such
already started as a
During the hearing,
way to
you
come to terms with who
are
imposing
discussed its reasons for
the sen-
you’re going
and how
to behave for the
began by
tence. The court
stating that
your
rest of
life.
really
“what
troubles
the most in this
[it]
matter” was Krul’s extensive criminal
looking
his-
You understand what I’m
at as a
tory, starting at the age
31-year-old
looking
of fourteen when
is I’m
at the rest of
charged
he
robbery,
your
you
with unarmed
going
life.
are
to be
Where
passing through early
you’re
you going
adolescence with
when
41?
are
Where
convictions,
four drunk-driving
you’re
you
to be when
51?
numerous
Where are
cognitive
mandatory participation
you’re 61? That’s
when
tо be
going
conditions of
you’ve
therapy.
I
These
me.
see where
behavioral
concerns
what
release,
I
designed
21 and
now see
to habituate
you
supervised
were
been when
and I don’t like
you
drug-motivated
are at
away
prior
where
from his
heading.
got
tendencies,
we’re
We’ve
direction
valid and rea-
reflect
criminal
a little
got to look at this
stop. We’ve
goals.
sonable
differently.
in the
Tapia is based on
Court will be
The sentence
“recognizing” clause—that
statute —the
Federal
custody
in the
months
imprisonment,
limits
end
high
That’s the
Bureau of Prisons.
the sentence.
Section
parts of
other
I
range.
guideline
of the sentence
3582(a) states:
I think there’s
thought
going higher.
court,
determining
whether
going higher,
but
of reason
plenty
*4
and, if a
imprisonment,
a term оf
impose
a
appeal
in an
and
that would enmesh us
imposed,
imprisonment
of
is to
term
things. But I think 61
of other
bunch
term,
length of the
determining
the
(sic)
give
be able to
the
months
should
the factors set forth
shall consider
opportuni-
of Prisons an
Federal Bureau
3553(a)
they
that
to the extent
section
education,
ty
provide you
to
with
edu-
impris-
that
applicable, recognizing
are
give you
and will
a
opportunity,
cational
appropriate
an
means
onment is not
placement
evaluation and
mental health
and rehabilita-
promoting
medication that
correction
presumably
and
some
emotions, that
your
with
will
will deal
tion.
sociably
your ability to interact
deal with
added).
3582(a) (emphasis
18 U.S.C.
give you the abili-
people,
with other
will
very
constrains
language by its
terms
This
check,
and will
ty
your anger
to hold
sentencing court’s decision both to
only “a
that
laws
you
understanding
an
give
lengthen
and to
a
term.”
impose
obeyed.
must be
Tapia,
raise
“the need for the
tencing judge consider
sentence,
just
and not
dress the overall
provide
...
to
the defen-
imposed
the district court
incarceration. When
educational or vocational
dant with needed
stated that Krul’s “sentence has to afford
care,
correction-
training, medical
or other
con-
adequate
deterrence to criminal
apply
to
al treatment” continues
public
the
certainly
protect
duсt and
has to
punishment
of terms of
judge’s imposition
educational,
provide you
and
with some
imprisonment,
super-
than
such as
other
correctional,
at the
and medical treatment
probation.
Tapia,
and
vised release
time,”
discussing
the court was
the
same
Thus, paragraph it is the final enough qualify for and complete that quote arguably the above that even runs program.” Moreover, See id. Tapia. afoul of But the district court no- Court was addressing a district court sen- parаgraph suggested where in that tencing Circuit, in the Ninth which at that imprisonment lengthened per- clearly time permitted to com- participation mit in a pro- rehabilitative plete programs gram. as a factor in The context shows that the court determining pains why imprisonment. was at to show the term was Duran, government shorter than what See United States v. so,
quested.
Cir.1994);
In doing
the court wanted to
Tapia,
see also
assure the defendant that the types
pro-
J.,
S.Ct. at 2394 (Sotomayor,
concurring).
grams he desired were still available.
In-
It is true
language
contains
deed, Krul
commentary
invited this
on re-
that might be read expansively to require
habilitation. Earlier during
hearing,
a resentencing whenever there
a “possi-
professed,
“I will use this time for
bility” that permitting rehabilitation еx-
myself
rehabilitation to better
my
role
*5
tended
length
of the sentence of im-
in society.” He then assured the court
prisonment. The Court
there reversed
class,
that he
any
would “enroll in
course
because “the
transcript
sug-
or
...
program
offered” to him. After
gests
possibility
that Tapia’s sentence
promise,
this
the court’s discussion of
was based on her rehabilitative needs.”
options appears
treatment
as assurance
added).
Tapia,
at
(emphasis
available,
that
programs
such
will be
not
But this cannot mean that reversal is re-
as a basis for lengthening incarceration.1
quired whenever it merely possible
that
Moreover,
circuit,
the law of this
of which
length
rehabilitation drove the
of impris-
aware,
the court was doubtless
prohibited
exрansive
onment.
reading
Such
would
the extension of incarceration
for
terms
effectively require, district courts to disa-
See,
rehabilitative purposes.
e.g., United
explicitly
vow
such a possibility to avoid
Walker,
States v.
513-14
Supreme
reversal. The
Court did not re-
Cir.2011).
Instead,
quire this.
the Court went on to
Tapia was much different.
In Tapia,
say that
the district court pegged
length
sentence to
particular
[sentencing]
may
accommodate a
court
have done
drug
program
may
treatment
more — ... it
prison
within the
have selected the
system, stating explicitly:
length of the
“[0]ne of the
sentence to ensure that
factors that affects
complete
Drug
[the
is the
could
the 500 Hour
sentence]
provide
need to
treatment.
In other
Program. “The sentencе has to be suf-
programs,
gram,
help
Because rehabilitative
such as
ensure that the Bureau of Pris-
Drug
Program
the Residential
and Alcohol
places
ons
the defendant in a better suited
that
Tapia,
was central to
are located
facility.
The
Court commended the
prisons,
judges
certain
frequent-
district court
practice
"trying
get
of a district court’s
[the
ly provide
program
treatment
recommenda-
drug
into an effective
defendant]
tions, along
why
with a detailed discussion of
program.”
tion. added). (emphasis at 2392-93 majority’s a federal approach, Under if an Tapia only sentence violates Here, court’s statement the district por- a discrete court can isolate pro- appellate will imprisonment term of a certain im- having of the sentence as been to rehabilitate Krul tion opportunity vide rehabilita- solely impermissible posed that it did what the lower not indicate does reasons, did, regardless of whether namely tive Tapia impermissibly sentencing colloquy reveals calculat- district court’s that the court have “suggest of the factors that rehabilitation was one Tapia’s sentence to-ensure ed the of whether shaped ser- its determination certain rehabilitative that she receive sent to the defendant should be id. at 2393. vices.” See stay he there. Admitted- how should judgment of the distriсt court is potential has the merit ly, approach affirmed. relatively simple to administer on being *6 But it has the distinct disadvan- appeal. GRIFFIN, concurring in Judge, Circuit Ta- tage being incompatible of with what judgment. commands. pia — Tapia In v. United 3553(a)(2)(D) 2382, generally § ad- -, L.Ed.2d 357 18 U.S.C. 180 sentencing courts that rehabilitation (2011), that 18 vises Supreme Court held 3582(a) may that fac- possible one consideration prohibits § the federal is U.S.C. appropriate of an a tor into its determination “impos[ing]” any portion from of courts specifically that it in sentence. But the statute “lengthenfing]” or prison sentence may guide a considerations governs which order to rehabilitate a criminal defendant. imposes when it a sentence majority opinion limits district court at 2393. The (as supervised оpposed to holding— imprisonment of its Tapia portion to the latter fines) release, provides that a only probation, or prohibits district courts Tapia that consider the factors court “shall “identifiabl[y]” lengthening prison a district fi’om 3553(a) to the extent I forth section purposes. for rehabilitative set sentence that view, applicable, recognizing are my In the ma- that spectfully disagree. appropriate is not question imprisonment jority opinion confuses and reha- promoting correction error with the means Tapia whether there was a 3582(a) (emphasis § 18 U.S.C. prejudi- the error was bilitation.” question of whether added). Supreme Court re- Tapia, In upon appel- remediable cial and therefore
377
potentially conflicting
solved this
statutory
purpose of giving the defendant the oppor-
3582(a)
language by holding
tunity
id.,
pre
to do so.
2392;
131 S.Ct. at
Blackmon,
cludes a district court from
United States
using
prison
981,
a
662 F.3d
(8th Cir.2011). Thus,
986
promote
sentence to
a defendant’s rehabili
the “dividing
“
line” separating impermissible
per-
tation:
from
‘[W]hen
offender to
missible conduct is “whether a
prison,
the court shall consider all the
court’s reference to rehabilitative needs
purposes
punishment
except rehabilita
causally
related to the length of the
imprisonment
tion—because
ap
is not an
sentence” or was
simply
instead
an obser-
propriate means of pursuing
goal.’”
vation about one of several “consequences
Deen,
760,
United States v.
706 F.3d
765
opportunities”
attendаnt upon the fact
(6th Cir.2013) (quoting Tapia, S.Ct.
that the defendant would
going
pris-
be
2389);
Walker,
United States v.
649 F.3d
on. United States v. Del Valle-Rodriguez,
(6th Cir.2011).
511, 513
(1st
171,
Cir.2014).
The dis-
portion
directs that no
prison
of a
may
trict court
hope that a defendant uses
may
sentence
imposed
for the purpose
his
in prison wisely
time
in order to better
defendant,
of rehabilitating the
regardless
integrate
release,
with society upon his
but
prison
whether the
sentence also serves
it
cannot send him to
prolong
or
other, legitimate penological ends. As the
stay there for the purpose
making
it
3582(a)
it, §
put
Court
contains a succinct
happen.
Grant,
See United States v.
command to district courts: “Do not think
(9th Cir.2011)
(“When
F.3d
a
about
way
as a
to rehabilitate an judge imposes prison,
may
he
wisely be-
Tapia,
offender.”
This is not to that a sen- prison way about as a to rehabilitate an tencing court every errs time that it men- offender.”). majority’s contrary Under the tions a defendant’s to be rehabilitat- approach, a permitted district court is to ed. Tapia recognized itself it may be impose a sentence for pur- appropriate for a court to ob- poses long so legiti- as there are also other prison serve that a sentence will have the purposes mate driving the sentence. That beneficial side-effect of affording oppor- may perfectly acceptable as a matter of rehabilitate, tunity for a defendant to so policy, but it is incorrect aas matter of long as the court does not Congress send the defen- law. preclude has chosen to fed- prison dant to or him keep considering there for the eral courts from rehabilitation a sending sentences, statutory prohibition against Ta- and prison fashioning when for in order prison to district federal defendant permitting as read pia cannot be person is him to “better” become to flout its direction. courts It of semantics. involves simply a matter to draw all, possible it is although After peno- federal to the fоundational questions compliant Tapice a fine line between quite have been enterprise logical —issues in- Tapia’s practices, Tapm-violative and literally for centuries. See id. debated off the be taken that rehabilitation sistence 365-66; Eaglin, Against Neore Jessica M. or how determining whether table when habilitation, 189, 214-18 66 SMU L.Rev. not a to to send a defendant (2013) dispa (discussing potentially some Instead, Tapia rec- technicality. as mere emphases); of rehabilitative rate effects 3582(a)’s using prohibition § of ognized, Rubin, Inevitability Re The L. Edward repre- ends for rehabilitative incarceration habilitation, Ineq. 19 Law & 367-76 in penological shift a fundamental sents (2001) over rehabilitation (noting disputes ap- its theory. Congress recalibrated Kant, Metaphysics theory); Immanuel part in because proach to rehabilitation trans., (Mary Gregor Morals 105 Cam using inde- unfairly disparate effects of (“Punishment 1996) Press bridge Univ. sentences as a behavioral terminate merely inflicted ... can never be a court see keep prison, an offender tool to other promote good a means to some 2387; part due to a 131 S.Ct. at Tapia, society. or for civil the criminal himself for at rehabili- consensus efforts growing only him always upon be inflicted It must failed, id.; largely see and had tation crime. For a he has committed a because punish out of a desire to offenders part merely treated being human can never be rather than for who what had done previously He must have as a means.... they were. Mistretta United thought any before punishable been found 361, 363, 647, 102 L.Ed.2d drawing punish from his given can be to (1989). By enacting the ver- current something of use for himself or ment 3582(a), § the con- Congress made sion deleted). citizens.”) (emphases fellow decision to alter federal scious impo- practices, choosing to allow II. imprisonment based
sition of
set term of
consign-
on the offender’s deeds instead
case, the district court
present
In the
judicial
to
ing the offender’s release date
discussion
began the relevant
observ-
“very
with
broad
officers
discretion”
today, and that
brings us to
ing, “So that
the offender was
determine whether
question
sen-
brings us
”
society.
worthy
reentry
into
their view
explained
....
The district court
tence
federal court
send
defendant
A
that “this
needed
both deter
sentence”
him there in order to
keep
provide
“and
Krul from future misconduct
him,
deter,
see 18
punish,
incapacitate
or
correctional,
educational,
you with some
3553(a)(2)(A)-(C),
it cannot
but
U.S.C.
at the same time.”
medical
of institutional
use the blunt instrument
court,
appro-
According to the district
him into a
try
incarceration to
mold
to.
you
be tak-
“requires
priate sentence
*8
socially acceptable citizen.
community for a while and
en out of the
programmatic opportu-
Thus,
downplays you
given
be
some
although
majority
the
”
“I
like
explaining,
.... After
don’t
narrowly
nities
the
importance
path
that Krul’s recidivist
in this case
the direction”
sentencing transcript
reads
him,
court an-
taking
the district
the was
attempt
implications,
in
to avoid its
an
nounced that
sentence of this Court
term
“[t]he
“the sentence” to refer to the con-
custody
will be 63 months in the
of the
templated
incarceration,
term of
not to
Prisons,” observing
Federal Bureau of
prison
both the
term and the following
give
months should be able to
supervised
“6[3]
term of
release.
It strains cre-
Federal Bureau of Prisons an opportunity”
dulity to assert that the district court used
to
Krul with
provide
pro-
rehabilitative
the same term —“the sentence”—a mere
(or
grams
your ability
“that will deal with
two-and-a-half paragraphs
roughly six-
seconds)
sociably
people,
interact
with other
ty
will
earlier to mean something en-
give you
your anger
to hold
tirely
majority’s
different. The
position is
check,
give you
and will
an understanding
nearly
that two
contemporaneous uses оf
obeyed.”
laws must be
the identical
“clearly”
term
have different
meanings, but the far less strained inter-
The import of the district
court’s
pretation is that the district court used the
statements is obvious: the district court
same word twice to mean the
thing.
same
appropriate
believed that the
in-
term of
carceration needed
provide
Krul with
The district
post-prison-sentence
court’s
rehabilitative programs
“at
the same
discussion of supervised
sig-
release is also
time” that it would function to deter him nificant. It is difficult to conclude that the
wrongful
from
conduct and concluded district court was speaking of supervised
that a
63-month
term was
release when it explained to Krul that his
enough
give
prison system
the federal
“sentence” required
“you
be taken out
оpportunity
to do so. Because the
of the community for a
you
while and
transcript
reflects that
given
the district court
programmatic
some
opportunities.”
considered
goals
person
when fash- A
supervised release,
on
obviously,
sentence,
ioning
Krul’s
its conduct
community,
And,
not out of it.
as
Walker,
Tapia.
fell afoul of
649 examples
“programmatic
of the
opportuni-
(although Tapia
F.3d at 513
mind,
does not
ties” that the district court had in
preclude a district court from observing
the district court
specific
identified some
of the sentence that
it
programs
rehabilitation
that Krul had al-
imposed
(legitimate)
has
for other
ready
rea-
started
prison.
while in
Which
sons
present
opportunity
for re- makes sense:
just
district court had
habilitation, it precludes a district court
indicated that Krul needed to receive reha-
using
from
rehabilitation as a factor
programming
bilitative
“at the same time”
determining
lengthy
when
how
aof
sen-
that he
serving
portion
of the
impose
place).
tence to
the first
sentence that would function to deter fu-
i.e.,
wrongful
ture
the term of
conduct—
however,
majority,
interprets
short,
In
every
incarceration.
indication
district court’s initial use of the word “sen-
suggests that the district court fashioned
referring
tence” as
not
to the chosen
sentence,
just
Krul’s
not
super-
period of incarceration but to the “overall
release,
vised
with rehabilitation in mind.
sentence,” including the subsequent period
Indeed, as is
typical
federal
supervised
making the entire
release —
prаctice,
the district court did not even
Tapia-compliant.
reading
discussion
This
supervised
mention
release until
it
after
transcript
princi-
does
withstand
had
determining
requisite
finished
pled scrutiny. The district court itself ex-
term of incarceration.
plained that “[t]he sentence of this Court
will be 63
in prison.
Regardless
months”
At that
disagree
whether we
with
point, obviously, the district
Congress’s sentencing policy
expressed
court used the
*9
380
51,
at
552
the circumstances.”
fairly enforce
3582(a),
duty to
§
it is our
Gall,
fact,
identifies
so, I
the law as
3553(a)
§
factors”
“failing to consider the
sentencing the district
that at
conclude
sub-
example
procedural
3582(a)
as an
§
as construed
court violated
—not
unreasonableness, and it seems
Tapia.
stantive —
exactly
error of
apparent
opposite
that an
III.
con-
namely, improperly
the same kind—
3553(a)
(i.e.,
§
factor
sidering an extra
my col-
Nevertheless,
agree with
I
habilitation)
im-
an error that
likewise
After
—is
sentence.
to affirm-Krul’s
leagues
procedural,
rather
plicates a sentence’s
there was
all,
question
whether
n
substantive,
reasonableness.
than
than
is different
sentencing
at
error
as much in United
suggested
This
by the
prejudiced
defendant was
whether
(6th
Vonner,
Cir.
381 ner, 516 at Pickar, F.3d 386. Gall and Vonner United States v. 1167, 666 F.3d strongly suggest therefore that an al (8th Cir.2012); 1169 United States v. Ben- leged Tapia error is a claim procedur nett, 194, (4th 698 F.3d Cir.2012); 200 that, al if unpreserved, unreasonableness Grant, 276, United States v. 664 F.3d 279 plain is reviewed error. (9th Cir.2011); United States v. Cordery, — (10th
In
1103,
Cir.2011).
Henderson v. United
656
F.3d
1105
-,
1121,
review,
if
even
it was not plainly incorrect
plain-error
apply
review should
to Krul’s
at the time of the district court’s decision.
unpreserved Tapia challenge. Beyond be-
Id. at 1124-25.1
ing
law,
pertinent
mandated
case
Moreover, every other circuit that has
approach
practical
makes
sense. The
decided the issue has chosen to review
specter
plain-error
unpre-
review for an
unpreserved Tapia
error,
plain
claims for
served Tapia challenge
a crim-
incentivizes
See,
cоnsistent with Henderson.
e.g.,
inal defendant
contemporaneous
to make a
United States v. Del Valle-Rodriguez, 761
Tapia objection at sentencing, thereby giv-
(1st
171,
Cir.2014);
F.3d
United States
ing the district court an opportunity to
(11th
Vandergrift,
v.
Cir.2014);
impermissible
ensure that
Wooley,
United States v.
Cir.2014);
goals
F.3d
are not influencing
United States
its
(2d
Lifshitz,
146, 150
Cir.2013);
Vonner,
decision. See
different repeatedly court ror where the district F.3d Vandergrift, 754 of rehabilitation.” rehabilitation to the defendant’s referred only pointed Krul has three times imposing at 1312. needs Wooley, 740 F.3d at range); court’s statements and stated district the Guideline (reversible sen requests He then error where Tapia. violated “pur that, way knowing explicitly for no tence was crafted because there rehabil affording if defendant pose[ the district happened ]” what would have treatment); F.3d at Cordery, 656 entirely off itative had taken rehabilitation court (reversible error where district table, remanded for his case should be length of the expressly calculated resentencing. permit partic- sentence to the defendant
ipate programs). in rehabilitation reasons, although disagree
For these I majority’s holding
with the the dis- error,
trict court did not commit a I
agree that Krul is not entitled to reversal sentence, having his within-Guidelines satisfy
failed to his burden under plain-
error review. I therefore concur
judgment only. CLUB, Petitioner,
SIERRA
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY Gina
McCarthy, Administrator, United
States Environmental Protection
Agency, Respondents. 12-2853, 12-3142,
Nos. 12-3143. Appeals, States Court of
Seventh Circuit.
Argued Sept. 2014.
Decided Dec.