UNITED STATES of America, Plaintiff-Appellee, v. Walter Henry VANDERGRIFT, Jr., Defendant-Appellant.
No. 12-13154.
United States Court of Appeals, Eleventh Circuit.
June 18, 2014.
754 F.3d 1303
Even if the instant petition were not successive, it appears to be subject to dismissal for untimeliness. The AEDPA provides a one-year statute of limitations. See
28 U.S.C. § 2255(f) . For claims based on the successful vacatur of state law convictions used to enhance a petitioner‘s sentence, the statute of limitations runs from the date of the state court‘s order of vacatur. See Stewart, 646 F.3d at 858 (“[T]he state court vacatur of a predicate conviction is a new ‘fact’ that triggers a fresh one-year statute of limitations under§ 2255(f)(4) ....“) [.] Here, the state court vacated Petitioner‘s convictions on September 25, 2003, approximately eight years before he filed the instant § 2255 motion. Moreover, prior to the filing of his current § 2255 motion, the last activity regarding Petitioner‘s convictions occurred in October of 2009. See CR 198-012, doc. No. 258.
Report and Recommendation at 7, n. 1.
While we recognize that the Report discusses the issue of timeliness and we could construe the footnote as an alternative holding, it is unclear whether the district court would have relied on this ground alone in dismissing the petition. See Forehand v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562, 1571 (11th Cir.1996) (declining to affirm the district court based on what could have been construed as an alternative holding located in a footnote and remanding the case to the district court). The Report states only that the petition “appears to be subject to dismissal for untimeliness.” Report and Recommendation at 7, n. 1 (emphasis added). Furthermore, the footnote is included after a three page discussion regarding whether the motion is successive, and before a conclusion that states that the motion is successive and should be dismissed. The timeliness of the motion is not discussed anywhere in the body of the Report. Accordingly, we prefer to remand the case to the district court for a determination as to whether the instant motion is timely.
REVERSED AND REMANDED.
Susan R. Redmond, Sandra J. Stewart, George L. Beck, Jr., U.S. Attorney‘s Office, Montgomery, AL, for Plaintiff-Appellee.
Kevin L. Butler, Federal Public Defender, Birmingham, AL, James Tobia Gibson, Federal Public Defender, Huntsville, AL, for Defendant-Appellant.
WILSON, Circuit Judge:
Walter Henry Vandergrift appeals his 24-month sentence imposed upon revocation of his supervised release. After review of the parties’ briefs, and with the benefit of oral argument, we affirm.
I. BACKGROUND
After serving a 97-month sentence for the possession and distribution of child pornography, Vandergrift began a three-year term of supervised release. Before the expiration of supervised release, Vandergrift‘s probation officer filed a petition seeking revocation of his supervised release. According to the petition, Vandergrift had violated the conditions of his supervised release by: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee (his roommate); (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating
Following a revocation hearing, the district court found by a preponderance of the evidence that Vandergrift had committed each of the five alleged violations and subsequently revoked his supervised release. At sentencing for these violations, the district court imposed an above-guidelines sentence of 24 months’ imprisonment to be followed by one year of supervised release. The court explained its reasons for imposing the sentence as follows:
In assigning what the appropriate and just punishment would be in this case, I‘ve got to consider all factors set out in
18 U.S.C. Section 3553 . I‘ve got to consider the safety of the public. I‘ve got to consider the example set to others to deter similar conduct. I‘ve got to consider just punishment for the crime that was committed, and here being a violation of these terms of supervised release. I‘ve also got to consider what‘s best for the defendant as a factor in the equation.It is difficult to decide what really is best for the defendant in this case. I‘m impressed with the testimony from Dr. Kirkland [Vandergrift‘s expert witness] that [Vandergrift] does not thrive in an unstructured environment; that he came out of prison at least in better physical condition than he got when he was out under fairly close supervised release, but still his physical condition and stamina deteriorated.
I‘m also impressed with Dr. Kirkland‘s testimony as to the lack of ability and the difficulty in finding, outside the prison system, any vocational training and help that might assist the defendant. But I‘m also considering the fact that while Dr. Kirkland is not an M.D., he is a psychologist with a great deal of experience in these kinds of things, and he suggests bipolar disorder on the part of the defendant, which may can be helped in some way in the prison system. That and vocational training for a period of time in the prison system not only would benefit the public, or could, at least more than not having that, but could also help save the defendant‘s life. I don‘t know, but that‘s a possibility.
So having considered all of these, I‘m going to—and I do find that a reasonable sentence in this case is going to be 24 months in prison, the maximum under statute, to be followed by one year of supervised release, during which time—and having had the experience of the imprisonment, during which time I hope that something can be found to put him on a better course.
....
Pursuant to
18 U.S.C. Section 3553(c)(2) , the sentence is being imposed in excess of the guidelines at 24 months to promote respect for the conditions of supervised release ordered by the Court; to reflect the seriousness of the defendant‘s conduct; to provide just punishment for the violation offenses; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and also for the benefit of the defendant.
Vandergrift now appeals.
On appeal, Vandergrift argues that the district court erred with respect to two of
II. DISCUSSION
“We . . . review a district court‘s revocation of supervised release for an abuse of discretion.” United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir.2010) (per curiam). “We review the sentence imposed [by the district court] upon the revocation of supervised release for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008) (per curiam). But because Vandergrift did not object to the procedural reasonableness at the time of his sentencing, we review for plain error. See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc) (per curiam). In Jones, we held:
Where the district court has offered the opportunity to object and a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal, and this court will not entertain an appeal based upon such objections unless refusal to do so would result in manifest injustice.
Id. And “[o]ur case law equates manifest injustice with the plain error standard of review.” United States v. Quintana, 300 F.3d 1227, 1232 (11th Cir.2002). Thus, in order to prevail, Vandergrift must demonstrate (1) that the district court erred; (2) that the error was “plain“; and (3) that the error “affect[ed his] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). “If all three conditions are met, [we then decide whether] the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted).
A. Revocation of Supervised Release
Vandergrift first argues that the government failed to prove that he committed violations (1) and (4)—failing to obtain lawful employment and possessing or having access to a pornographic DVD and a Maxim magazine. But he admits the conduct underlying violations (3) and (5)—knowingly giving false information to a probation officer and violating
Vandergrift also challenges the procedural reasonableness of his 24-month sentence. Vandergrift contends that the district court made two errors when fashioning his post-revocation sentence. First, he argues that it was impermissible to consider the factors set out under
1. Alleged Impermissible Sentencing Factors
In assessing procedural reasonableness, a court‘s “fail[ure] to consider the § 3553(a) factors” constitutes “significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). “It is only logical that a court‘s consideration of an improper § 3553(a) factor is likewise erroneous.” United States v. Bennett, 698 F.3d 194, 200 (4th Cir.2012), cert. denied — U.S. —, 133 S.Ct. 1506, 185 L.Ed.2d 559 (2013).
The Supreme Court has not addressed whether it is error to consider a factor listed in
2. Alleged Tapia Error
In Tapia v. United States, the Supreme Court stated that the Sentencing Reform Act of 1984 prohibits federal courts from considering a defendant‘s rehabilitative needs when imposing or lengthening a prison sentence. — U.S. at —, 131 S.Ct. at 2389. This court has not decided whether Tapia applies in the context of resentencing upon the revocation of supervised release. But we agree with our sister circuits and today hold that it does. See United States v. Lifshitz, 714 F.3d 146, 150 (2d Cir.2013) (per curiam); United States v. Garza, 706 F.3d 655, 657 (5th Cir.2013); Bennett, 698 F.3d at 197; United States v. Mendiola, 696 F.3d 1033, 1041-42 (10th Cir.2012); United States v. Taylor, 679 F.3d 1005, 1006-07 (8th Cir.2012); United States v. Molignaro, 649 F.3d 1, 4-5 (1st Cir.2011). In doing so, we recognize that Tapia abrogates our holding in United States v. Brown, where we stated that “a court may consider a defendant‘s rehabilitative needs when imposing a specific incarcerative term following revocation of supervised release.” 224 F.3d 1237, 1240 (11th Cir.2000). Tapia made clear that prison is not to be viewed by sentencing judges as rehabilitative. And that holds true whether a person is initially being sent to prison or being sent back to prison after a period of supervised release. With this in mind, we address Vandergrift‘s final argument.
Vandergrift argues that during his sentencing hearing, the district court improperly considered Vandergrift‘s need for rehabilitation when it sentenced him to 24 months’ imprisonment. See Tapia, — U.S. at —, 131 S.Ct. at 2388-89. As discussed, because Vandergrift failed to object to the procedural reasonableness of his sentence below, we review for plain error.
Some courts, in the context of supervised release, have found Tapia error only where a district court specifically tailored the length of a defendant‘s sentence to meet some rehabilitative need. In Lifshitz, for example, the Second Circuit found no Tapia error where
Others have found Tapia error where rehabilitation was the “dominant” factor in the sentencing calculus. In United States v. Garza, the Fifth Circuit found Tapia error where “[t]he record ma[de] clear that [the defendant‘s] rehabilitative needs were the dominant factor in the court‘s mind” when it sentenced the defendant to 24 months’ imprisonment. 706 F.3d at 662. Likewise in United States v. Replogle, the Eighth Circuit found that because “[d]eterrence, respect for the law, and protection of the public were the dominant factors in the district court‘s [sentencing] analysis,” the defendant‘s sentence did not run afoul of Tapia. 678 F.3d 940, 943 (8th Cir.2012).
Turning to Vandergrift‘s case, we find that there was Tapia error because the district court considered an improper § 3553(a) factor when it sentenced Vandergrift: rehabilitation. See Bennett, 698 F.3d at 200; see also Gall, 552 U.S. at 51, 128 S.Ct. at 597. This amounts to procedural error. We decline to limit Tapia to situations where the district court either 1) specifically tailors the length of a defendant‘s sentence to permit completion of a rehabilitation program or 2) makes rehabilitation the “dominant” factor in the sentencing court‘s calculus. Instead, we hold that Tapia error occurs where the district court considers rehabilitation when crafting a sentence of imprisonment.
Our holding—that a district court errs when it considers rehabilitation when imposing or lengthening a sentence of imprisonment—is faithful to Tapia‘s reasoning. In Tapia, the Supreme Court emphasized “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” Tapia, — U.S. at —, 131 S.Ct. at 2388 (internal quotation marks omitted). The Court explicitly stated that when a court is determining whether to impose or lengthen a sentence of imprisonment it “should consider the specified rationales of punishment except for rehabilitation, which it should acknowledge as an unsuitable justification for a prison term.” Id. (first emphasis added). From this language and rationale, it is clear that Tapia prohibits any consideration of rehabilitation when determining whether to impose or lengthen a sentence of imprisonment.
Our holding is also consistent with Eleventh Circuit precedent. In United States v. Mogel, we noted that “[r]ehabilitative considerations have been declared irrelevant for purposes of deciding whether or not to impose a prison sentence and, if so, what prison sentence to impose.” 956 F.2d 1555, 1563 (11th Cir.1992). We stated almost the same in United States v. Vautier: “[T]he need for medical care may not be considered in fixing the length of imprisonment, but may be considered in fixing the terms of the sentence other than incarceration.” 144 F.3d 756, 762 (11th Cir.1998) (emphasis added) (citing United States v. Harris, 990 F.2d 594, 596-97 (11th Cir.1993)). Because it is impermissible to consider rehabilitation, a court errs by relying on or considering rehabilitation in any way when sentencing a defendant to prison. As with any other instance where a court considers an impermissible sentencing factor, see, e.g., United States v. Williams, 456 F.3d 1353, 1371-72 (11th Cir.2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (finding error where district court considered impermissible factors when crafting the defendant‘s sentence), considering rehabilitation is error. This is true regardless of how dominant the error was in the court‘s analysis and regardless of whether we can tell with certainty that the court relied on rehabilitation because the sentence was tailored to a rehabilitation program. Errors need not be severe or obvious to be errors. Accordingly, in light of Tapia and our own Circuit precedent, we find that the district court erred when it sentenced Vandergrift to prison because it considered rehabilitation when doing so.5
The sentencing transcript highlights the district court‘s consideration of rehabilitation in imposing Vandergrift‘s sentence. The court began by stating that it was to “consider all the factors set out in
Here the district court did exactly what Tapia and our precedent instruct district courts not to do—it considered rehabilitation when crafting Vandergrift‘s sentence of imprisonment. As detailed above, the sentencing transcript demonstrates that the district court considered how prison would benefit Vandergrift and how incarceration might save his life when it imposed the 24-month sentence. Such considerations are improper and amount to procedural error.
We recognize, though, that Tapia does not prohibit a district court from discussing rehabilitation during a sentencing hearing. To be sure, “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs[,] . . . [and] a court properly may address a person who is about to begin a prison term about these important matters.” Tapia, — U.S. at —, 131 S.Ct. at 2392; see United States v. Lucas, 670 F.3d 784, 795 (7th Cir.2012) (finding no Tapia error where the district court, after imposing the defendant‘s sentence, stated that the 210-month sentence would “provide the opportunity for rehabilitative programs“). But that is not what happened here. Here, prison‘s rehabilitative benefits were considered in the course of deciding whether or not Vandergrift should be sentenced to prison at all. And in the
But our analysis does not stop here. Vandergrift has carried his burden on the first step of our plain-error analysis: he has demonstrated an error. See Olano, 507 U.S. at 732, 113 S.Ct. at 1777. To succeed, he must further demonstrate that the error is plain and that it affected his substantial rights. See id. at 734, 113 S.Ct. at 1777-78. We assume for the sake of argument that the error is plain and we turn to whether Vandergrift has shown that it affected his substantial rights. See id. He has not.
In order for an error to have affected substantial rights, it “must have affected the outcome of the district court proceedings.” Id., 113 S.Ct. at 1778. “Normally . . . the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong....” Id. at 735, 113 S.Ct. at 1778. Vandergrift has failed to show that his sentence would have been different but for the court‘s consideration of rehabilitation. The sentencing transcript reflects that Vandergrift‘s “rehabilitative needs clearly constituted only a minor fragment of the court‘s reasoning.” Bennett, 698 F.3d at 201. The court‘s primary considerations were for the safety of the public and deterring others from similar conduct. Indeed, the court emphasized its concern that Vandergrift continued to possess photographs that he had taken of young boys about whom he had sexually fantasized. It was Vandergrift‘s violations and the court‘s concern for the public “that drove the district court‘s sentencing decision.” See id. at 200.
For these reasons, despite our finding of Tapia error, the district court is affirmed.
AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Joaquin Amador SERRAPIO, Jr. a.k.a. Jay Valor, Defendant-Appellant.
No. 12-14897.
United States Court of Appeals, Eleventh Circuit.
June 18, 2014.