from the United States District Court for the District of
Colorado (D.C. No. 1:14-CR-00443-RBJ-1)
K. Melcher, Assistant Federal Public Defender (Virginia L.
Grady, with him on the briefs), Denver, Colorado, for
L. Schock, Assistant United States Attorney (John F. Walsh,
United States Attorney, with him on the brief), Denver,
Colorado, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
Christopher Thornton appeals from the district court's
sentence of seventy-eight months in prison. The issue is
whether the district court committed procedural error by
basing the length of Thornton's sentence, in part, on the
treatment and vocational services he would receive in jail.
Federal judges may not use imprisonment as a means to promote
defendants' correction or rehabilitation. Tapia v.
United States, 564 U.S. 319, 335 (2011). In this case,
the district court calculated the advisory prison range under
the Sentencing Guidelines and Thornton moved for a downward
variance-requesting a sentence below the advisory range. The
court denied that request, offering several reasons not to
impose a below-guidelines sentence, including that Thornton
"needs enough time in prison to get treatment and
vocational benefits." (Aplt. App. Vol. III. at 36).
Thornton claims on appeal, without having objected in the
district court, that the court's rationale for sentencing
violates Tapia. With this new argument we review the
case for plain error.
evaluating Thornton's sentence, we clarify several
principles. First, denials of downward-variance motions are
subject to Tapia scrutiny. Second, Tapia
error can occur even when a district court articulates
additional valid reasons for the prison sentence. Third, a
district court need not expressly link a prison sentence to a
specific treatment program in order to trigger Tapia
error. Fourth, there is no Tapia error when a
district court addresses rehabilitation merely to refute an
offender's argument that in-prison treatment justifies a
lesser sentence, but there is error when the
district court goes further and grounds his sentence, in
part, on the perceived benefit to the offender of providing
these principles, we find the district court's
consideration of in-prison treatment was erroneous, but not
plainly so. Accordingly, having jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we AFFIRM.
2014, Thornton pleaded guilty to possession of a firearm as a
felon. The district court calculated the range of
imprisonment under the federal Guidelines was seventy-seven
to ninety-six months. Thornton requested a downward variance
to thirty-eight months based on his youth and the nonviolent
nature of his criminal history. He also argued that in-prison
treatment during the proposed thirty-eight months would help
mitigate any potential risk he posed to the community. The
district court, however, denied the variance motion. Even
though the district court was initially prepared to sentence
Thornton to eighty-four months in prison, the government
ultimately requested a bottom-guideline sentence of
seventy-seven months. After explaining his reasoning, the
judge imposed a sentence of seventy-eight months'
district court offered several reasons for its decision not
to grant the downward variance or otherwise to impose a
lesser sentence. The district court first emphasized:
"[T]he overriding reason is that I don't think
certainly in this case that it is in the defendant's best
interest to argue for or for a court to give him the lowest
possible sentence. This is a fellow who doesn't do well
on his own. Never has. And he needs all kinds of services
that he can get and will get in prison[.]" (Aplt.
App. Vol. III. at 32) (emphasis added). The court then turned
to Thornton's criminal history, citing his juvenile
felony-level adjudications and his adult felony convictions.
It also discussed Thornton's upbringing, observing how
Thornton had been deserted by his mom and had a challenging
history with his dad. The court then addressed Thornton's
gang history, his lack of education, and the credit Thornton
warranted for going back to get his GED. Then, the judge
said: "He's got mental-health issues, and he
needs treatment. . . . He hasn't received a lot of
treatment, mostly because he has rejected the efforts of the
system in the past to provide him treatment."
(Id. at 35) (emphasis added). The court also
confirmed that Thornton is a community safety risk because he
"mixes drugs and firearms." (Id.). In
finalizing his decision at seventy-eight months'
imprisonment, the judge summed up with three reasons: "I
do that  because of the community-safety issues, 
because of his history of rejecting efforts to help him, 
because I am firmly convinced that he needs enough time
in prison to get treatment and vocational
benefits." (Id. at 36) (emphasis added).
Sentencing Reform Act commands federal judges generally to
consider several factors in determining an appropriate
sentence, including the nature and circumstances of the
offense and the history and characteristics of the defendant,
18 U.S.C. § 3553(a)(1), as well as the public's need
for punishment, deterrence, community safety, and the
defendant's need for rehabilitation or correctional
treatment, § 3553(a)(2). But the Act separately and more
specifically addresses itself to the sentence of
imprisonment, directing judges to "consider the factors
set forth in section 3553(a) . . ., recognizing that
imprisonment is not an appropriate means of promoting
correction and rehabilitation." § 3582(a)
(emphasis added). The same law instructs the Sentencing
Commission to "insure that the guidelines reflect the
inappropriateness of imposing a sentence to a term
of imprisonment for the purpose of rehabilitating the
defendant or providing the defendant with needed educational
or vocational training, medical care, or other correctional
training." 28 U.S.C. § 994(k) (emphasis
added). The Supreme Court interpreted these two sections to
permit a sentencing court to consider the § 3553(a)
factors in deciding the length of imprisonment, except for
the factor relating to rehabilitation and correctional
treatment. Tapia v. United States, 564 U.S. 319,
326-34 (2011). Accordingly, Tapia announced an
unequivocal rule: "a court may not impose or lengthen a
prison sentence to enable an offender to complete a treatment
program or otherwise to promote rehabilitation."
Id. at 335.
Standard of Review
did not argue below that the district court improperly based
Thornton's sentence on rehabilitation. We therefore
review for plain error. E.g., United States v.
Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). Under
this standard, Thornton must show: (1) the district court
erred, (2) the error was plain, (3) the error prejudiced his
substantial rights, and (4) ...