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United States v. Tidzump

United States Court of Appeals, Tenth Circuit

November 9, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ASHLEY LARAE TIDZUMP, Defendant-Appellant.

         Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:15-CR-00176-SWS-1)

         Submitted on the briefs.[*]

          Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

          Timothy W. Gist, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), District of Wyoming, Lander, Wyoming, for Plaintiff-Appellee.

          Before LUCERO, McKAY, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         This appeal grows out of Tapia v. United States, 564 U.S. 319 (2011). There, the U.S. Supreme Court held that a federal district court cannot impose or lengthen a prison term to promote rehabilitation. 564 U.S. at 332.

         Tapia was implicated when Ms. Ashley Tidzump was convicted of assault and requested an 18-month prison term, admitting an addiction to opiates and a need for treatment. But Ms. Tidzump would ordinarily qualify for the prison's drug treatment program only if she were to begin treatment with at least two years remaining on her sentence. See BOP Program Statement No. P5330.11 § 2.5.1(b)(d) (Mar. 16, 2009) (stating that admission into the residential drug-abuse treatment program (RDAP) ordinarily requires an inmate to have at least 24 months remaining on the sentence).[1] So, the district court imposed a prison sentence of 31 months. Though the sentence dipped below the guideline range, the sentence was long enough to allow Ms. Tidzump to become eligible for the prison's drug treatment program.

         Ms. Tidzump appeals the sentence, calling on us to decide whether the district court's explanation for the sentence was permissible under Tapia. We conclude that the sentence was impermissible because the district court expressly lengthened the sentence for the purpose of promoting rehabilitation. We reverse.

         I. Standard of Review

         Ms. Tidzump did not object to the sentence in district court. As a result, we engage in limited review, deciding only whether the sentence constitutes plain error. United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). In reviewing for plain error, we will reverse only if the district court erred in a way that is plain or obvious, prejudicing Ms. Tidzump's substantial rights and seriously affecting the fairness, integrity, or public reputation of the judicial proceedings. Id.

         II. The district court erred in a way that is plain or obvious.

         In our view, the district court erred in a plain or obvious manner. In reaching this conclusion, we recognize that the district court decided the sentence with a laudable purpose (facilitating rehabilitation) and proceeded without the benefit of adversarial argument. Nonetheless, the Tapia Court clearly and unequivocally prohibited district courts from imposing or lengthening a sentence for the purpose of promoting rehabilitation. Tapia v. United States, 564 U.S. 319, 332 (2011); see United States v. Mendiola, 696 F.3d 1033, 1036 n.2 (10th Cir. 2012) ("Tapia's holding was clear and unequivocal.").

         The government argues that until now, there has been no precedent on whether Tapia prevents "a discretionary downward variance to account for treatment." Appellee's Resp. Br. at 20. This argument would not support affirmance here. The issue does not involve prevention of a downward variance, for the district court did vary downward by selecting a 31-month sentence. Though a downward variance was ...


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