from the United States District Court for the District of
Wyoming (D.C. No. 2:15-CR-00176-SWS-1)
on the briefs.[*]
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
Timothy W. Gist, Assistant United States Attorney
(Christopher A. Crofts, United States Attorney, with him on
the brief), District of Wyoming, Lander, Wyoming, for
LUCERO, McKAY, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
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.
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). 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
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.
Standard of Review
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.
The district court erred in a way that is plain or
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
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 ...