United States of America v. Gilliard

Filing

OPINION, Affirmed , by RCW RJL LHR, FILED.[528582] [11-1088]

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11-1088-cr
United States v. Gilliard

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011
(Submitted: February 8, 2012

Decided: February 17, 2012)

Docket No. 11-1088-cr
UNITED STATES OF AMERICA,
Appellee,
–v.–
TROY GILLIARD, AKA T ROY,
Defendant-Appellant.

Before:
WESLEY, LOHIER, Circuit Judges, and ROSENTHAL, District Judge.*
Appeal from a judgment of the United States District
Court for the Southern District of New York (Sullivan, J.),
following Defendant’s guilty plea to conspiring to
distribute and possess with the intent to distribute heroin.
The district court sentenced Defendant principally to a term
of 96 months’ imprisonment. Defendant contends that the
above-Guidelines sentence was procedurally unreasonable
because the district court impermissibly based the sentence
on his rehabilitative needs. Defendant also challenges the
sentence as substantively unreasonable. We hold that the
district court did not impose the prison term to promote

*

The Honorable Lee H. Rosenthal, of the United States
District Court for the Southern District of Texas, sitting by
designation.

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Defendant’s rehabilitative needs and that the court’s
discussion of rehabilitation during the sentencing
proceeding was permissible. We conclude that the sentence
was neither procedurally nor substantively unreasonable.
AFFIRMED.

Steven M. Statsinger, Federal Defenders of New
York, Inc., Appeals Bureau, New York, NY, for
Defendant-Appellant.
Niketh Velamoor, Iris Lan, Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New
York, New York, NY, for Appellee.

WESLEY, Circuit Judge:
Defendant-Appellant Troy Gilliard appeals from a March

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9, 2011 judgment of the United States District Court for the

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Southern District of New York (Sullivan, J.), following his

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guilty plea to conspiring to distribute and possess with the

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intent to distribute heroin, in violation of 21 U.S.C.

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§§ 841(b)(1)(C) and 846.

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Gilliard principally to a term of 96 months’ imprisonment.

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Gilliard contends that the above-Guidelines sentence was

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procedurally unreasonable in light of Tapia v. United

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States, 131 S. Ct. 2382 (2011), because the district court

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impermissibly based the sentence, at least in part, on his

The district court sentenced

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rehabilitative needs.

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our review of the record, that the district court did not

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impose the prison term to promote Gilliard’s rehabilitative

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needs and that the court’s discussion of rehabilitation

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during the sentencing proceeding was permissible.

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disagree with Gilliard’s contention that the sentence was

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substantively unreasonable.

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sentence imposed by the district court.

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We disagree and conclude, based on

We also

Accordingly, we affirm the

In July 2010, Gilliard was arrested after a series of

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authorized communication intercepts confirmed that he was

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involved in heroin trafficking.

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Gilliard pled guilty to conspiring to distribute and possess

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with the intent to distribute heroin, in violation of 21

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U.S.C. §§ 841(b)(1)(C) and 846.

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the parties stipulated that the calculated Sentencing

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Guidelines range was 57 to 71 months’ imprisonment.

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On November 12, 2010,

Under the plea agreement,

In Gilliard’s Presentence Report (“PSR”), the Probation

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Office made the same calculation.

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calculation, the PSR set forth Gilliard’s troubled past.

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had New York state convictions for grand larceny and bail

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jumping, and a federal conviction for money laundering

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(related to his involvement in distributing prescription

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In arriving at that
He

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drugs), for which he was sentenced to 100 months’

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imprisonment.

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convictions for escape, assault, and possession of a

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controlled substance, each resulting in either a prison

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sentence or fine.

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his supervised release on multiple occasions.

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Gilliard committed the instant offense while on supervised

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release.

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sentence of 65 months’ imprisonment.

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Gilliard also had additional prior

Moreover, Gilliard violated the terms of
Most notably,

The Probation Office ultimately recommended a

Gilliard argued in his sentencing submission that 57

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months would be sufficient, asserting principally that his

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involvement in narcotics trafficking stemmed from

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debilitating medical issues that led him to self-medicate

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and to sell narcotics.

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sentence within the advisory Guidelines range of 57 to 71

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months was appropriate, given that the instant offense

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represented Gilliard’s eighth criminal conviction and second

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narcotics-related federal conviction.

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The government responded that a

At the sentencing proceeding, the district court also

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calculated the applicable Guidelines range to be 57 to 71

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months and confirmed that neither party had any objections

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to the calculation.

In response to defense counsel’s

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confirmation that Gilliard was asking for a Guidelines

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sentence, the district court explained that it could not

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reconcile Gilliard’s health struggles stemming from a car

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accident and his ensuing efforts to self-medicate with his

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prior crimes which preceded and continued after the

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accident.

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After providing Gilliard an opportunity to address the

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court, the district court focused on several sentencing

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factors in turn.

With respect to Gilliard’s “extensive

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criminal history,” the district court took into account the

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federal conviction for money laundering—which related to

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drug dealing—and Gilliard’s failed attempts to comply with

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the terms of supervised release.

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was skeptical of the connection between Gilliard’s efforts

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to self-medicate and the crime at issue, noting that many

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people with pain do not resort to selling heroin.

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to “the facts and circumstances of the crime,” the district

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court described the seriousness of the crime of conspiring

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to sell heroin and suggested that the amount of drugs

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attributed to Gilliard was relatively small compared to the

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amount of drugs actually involved.

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addressed the goal of specific deterrence, stating that it

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The district court again

Turning

The district court then

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sought to impose an appropriate sentence to prevent Gilliard

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from committing similar crimes in the future.

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Finally, the district court addressed Gilliard’s own
needs while in custody by noting:
I think you obviously had a substance abuse problem.
You obviously also have medical issues that need to
be dealt with.
You also have psychiatric issues
that need to be dealt with and have been dealt with
sort of sporadically over a number of years. But
those are important things. And it’s important, as
[defense counsel] has requested, that you be
sentenced in such a way that you are able to address
those problems; that you have access to facilities
and care that will enable you to deal with these
problems.
So that’s something, obviously, I take
very, very seriously, and will, in fashioning my
sentence.
A 124.
Before imposing the sentence, the district court

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explained that all the arguments made by defense counsel in

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support of a lower sentence were “outweighed by what [the

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court] consider[ed] to be the high, high likelihood of

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recidivism and the serious nature of the crime committed and

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the crimes committed in the past.”

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court concluded that an above-Guidelines sentence was

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warranted.

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the district court ultimately decided that an 8-year

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sentence was appropriate “in light of everything [the court

A 125.

The district

Although it had contemplated a 10-year sentence,

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had] talked about.”

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months’ imprisonment, the district court stated its intent

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to recommend to the Bureau of Prisons (“BOP”) that Gilliard

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be placed close to family and in a facility with effective

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drug treatment programs.

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A 125-26.

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After imposing a term of 96

We review a district court’s sentence for

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reasonableness.

See, e.g., United States v. Booker, 543

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U.S. 220, 261-62 (2005).

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discretion standard,” we first consider whether the district

Under this “deferential abuse-of-

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court committed procedural error.

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550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal

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quotation marks omitted).

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procedurally if it does not consider the § 3553(a) factors,

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or rests its sentence on a clearly erroneous finding of

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fact.”

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United States v. Cavera,

A district court “errs

Id. at 190.

Gilliard argues that the sentence was procedurally

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unreasonable because the district court violated 18 U.S.C.

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§ 3582(a) by imposing a term of imprisonment to promote his

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rehabilitative needs.

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Gilliard did not raise this argument before the district

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court, and thus it would normally be subject to plain error

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review.

As a preliminary matter, we note that

See United States v. Villafuerte, 502 F.3d 204, 208

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(2d Cir. 2007).

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the claim is based on an intervening Supreme Court decision,

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this Circuit has previously applied a “modified” plain error

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review, which requires the government to prove that the

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error was harmless.

United States v. Needham, 604 F.3d 673,

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678 (2d Cir. 2010).

Although it is unclear whether this

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standard continues to apply, see id., we need not decide

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between the two standards because under either, we conclude

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that the district court committed no error in light of the

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In cases such as this one, however, where

Supreme Court’s decision in Tapia.
In Tapia, the Supreme Court held that 18 U.S.C.

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§ 3582(a) “precludes sentencing courts from imposing or

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lengthening a prison term to promote an offender’s

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rehabilitation,” but allows the court to discuss

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“opportunities for rehabilitation within prison or the

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benefits of specific treatment or training programs.”

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S. Ct. at 2391-92.

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§ 3582(a), which provides:

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The Court relied on the text of

The court, in determining whether to impose a term
of imprisonment, and, if a term of imprisonment is
to be imposed, in determining the length of the
term, shall consider the factors set forth in [18
U.S.C. § 3553(a)] to the extent that they are
applicable, recognizing that imprisonment is not an
appropriate means of promoting correction and
rehabilitation.
In determining whether to make a
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recommendation concerning the type of prison
facility appropriate for the defendant, the court
shall consider any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a)(2).
18 U.S.C. § 3582(a) (emphasis added).

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language of the statute, the Court explained, “when

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sentencing an offender to prison, the court shall consider

In light of the plain

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all the purposes of punishment except rehabilitation—because

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imprisonment is not an appropriate means of pursuing that

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goal.”

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that because § 3582(a) allows a court to make

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recommendations concerning rehabilitation, the district

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court “did nothing wrong . . . in trying to get [the

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defendant] into an effective drug treatment program.”

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at 2392.

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Tapia, 131 S. Ct. at 2389.

The Court also reasoned

Id.

But the Court concluded, based on excerpts from the

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sentencing transcript, that the district court may have

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selected the length of the sentence to ensure that the

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defendant could complete a 500-hour drug treatment program.

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Id. at 2392-93.

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that “[t]he sentence has to be sufficient to provide needed

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correctional treatment,” and that the defendant should be

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“in long enough to get the 500 Hour Drug Program.”

Most notably, the district court explained

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Id. at

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2385.

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that the district court did more than what was permissible

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under § 3582(a).1

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These statements, according to the Court, suggested

Id. at 2393.

Gilliard contends that the district court erred in

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considering Gilliard’s “own needs while in custody” in

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imposing the sentence.

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made by the district court to argue that the sentence was

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unlawfully imposed in light of Tapia.

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court explained that it was “important, as [defense counsel]

Gilliard focuses on two statements

First, the district

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has requested, that [Gilliard] be sentenced in such a way

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that [he is] able to address those [substance abuse,

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medical, and psychiatric] problems.”

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district court concluded that eight years “is the

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appropriate sentence in light of everything [the judge had]

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talked about.”

A 124.

Second, the

A 125-26.

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Justice Sotomayor, joined by Justice Alito, concurred to
express her skepticism that the district court imposed or
lengthened the defendant’s sentence to promote rehabilitation.
Tapia, 131 S. Ct. at 2393-94 (Sotomayor, J., concurring). She
noted that the district court carefully reviewed the sentencing
factors set forth in § 3553(a) and offered two reasons for
choosing the sentence: the need for drug treatment and
deterrence. Id. at 2393. With respect to the latter reason, the
district court highlighted the defendant’s criminal history and
criminal conduct while released on bail. Id. at 2393-94.
Notwithstanding her skepticism, Justice Sotomayor concluded that
she could not be certain that the district court did not lengthen
the defendant’s sentence to promote rehabilitation in violation
of § 3582(a), and thus agreed with the Court’s disposition of the
case. Id. at 2394.

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Unlike in Tapia, the record here does not suggest that

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the length of Gilliard’s sentence was based on the district

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court’s consideration of his rehabilitative needs.

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Instead, the district court permissibly applied the

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applicable sentencing factors under § 3553(a), addressing

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(1) Gilliard’s extensive criminal history and failures to

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comply with the terms of his supervised release; (2) the

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facts and circumstances of Gilliard’s drug-related crime;

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and (3) the goal of deterrence and Gilliard’s high

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likelihood of recidivism.
The sentencing in Tapia was improper because the

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district court explicitly stated that the defendant needed a

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sentence long enough so that she could participate in the

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500-hour drug treatment program.

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indication that the district court tied the length of the

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sentence to any treatment Gilliard would receive.

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contrary, whenever the district court discussed Gilliard’s

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rehabilitative needs, it did so in the context of

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recommending to the BOP appropriate treatment programs he

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should receive while in custody—not with regard to whether

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he should spend more time in prison for treatment purposes.

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The district court’s recommendations—including that Gilliard

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Here, there is no

To the

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have access to facilities and care that would enable him to

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deal with his problems—were well within what the Supreme

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Court deemed permissible in Tapia.

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2392.

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See Tapia 131 S. Ct. at

Our conclusion is consistent with our recent

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application of Tapia, as well as the decisions of several

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other circuits finding that, notwithstanding discussion of

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rehabilitation in the record, there was no error where the

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sentence length was based on permissible considerations,

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such as criminal history, deterrence, and public protection.

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See United States v. Magner, No. 11-0751-cr, 2012 WL 206013,

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at *2 (2d Cir. Jan. 25, 2012); see also United States v.

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Tolbert, ---F.3d----, 2012 WL 413806, at *5 (6th Cir. 2012);

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United States v. Blackmon, 662 F.3d 981, 987 (8th Cir.

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2011); United States v. Cardenas-Mireles, No. 11-2138, 2011

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WL 6394280, at *3 (10th Cir. Dec. 21, 2011); United States

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v. Gregg, No. 11-12144, 2011 WL 5248165, at *1 (11th Cir.

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Nov. 3, 2011).

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To be sure, our sister circuits in several other recent

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cases have found error where the record revealed that the

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defendant’s rehabilitative needs influenced the length of

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imprisonment.

In United States v. Cordery, 656 F.3d 1103

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(10th Cir. 2011), the Tenth Circuit found error in the

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sentence when the district court commented that, after

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taking into account the time that the defendant had already

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served, the defendant “need[ed] a sentence of at least 56

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months to be able to successfully complete that [treatment]

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program together with mental health counseling.”

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1105.

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2011), the Fourth Circuit held that the district court

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impermissibly considered the defendant’s need for

Id. at

In United States v. Himes, 439 F. App’x 272 (4th Cir.

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rehabilitation when the district court noted that an

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increased sentence of 34 months would “provide enough time

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for [the defendant] to be admitted to the [500-hour

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residential drug] program and complete that program.”

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at 274-75.

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260 (7th Cir. 2011), the Seventh Circuit held that the

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defendant was entitled to resentencing after the district

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court explained that “[a] stay in the Bureau of Prisons of a

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significant length [was] necessary in order for [the

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defendant] to get the Bureau of Prisons’ inpatient treatment

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program.”

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Id.

Finally, in United States v. Kubeczko, 660 F.3d

Id. at 261.

A common theme exists between Tapia and those cases in
which our sister circuits found error—in all four cases, the

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sentencing judge explicitly tied the need to impose a

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sentence of particular length to the defendant’s ability to

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participate in a drug treatment program.

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missing here.

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sentence was based on, among other permissible reasons, his

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extensive criminal history.

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Gilliard’s rehabilitation only in the context of making its

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recommendations to the BOP, and in so doing, did no more

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than what was deemed permissible in Tapia.

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That connection is

Rather, the record indicates that Gilliard’s

The district court discussed

Accordingly,

Gilliard’s claim of procedural unreasonableness fails.
Gilliard also challenges the substantive

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reasonableness of his sentence.

In reviewing that claim, we

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“take into account the totality of the circumstances, giving

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due deference to the sentencing judge’s exercise of

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discretion, and bearing in mind the institutional advantages

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of district courts.”

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not substitute our own judgment for the district court’s on

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the question of what is sufficient to meet the § 3553(a)

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considerations in any particular case.”

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Rather, we will “set aside a district court’s substantive

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determination only in exceptional cases where the trial

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court’s decision ‘cannot be located within the range of

Cavera, 550 F.3d at 190.

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“[W]e will

Id. at 189.

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permissible decisions.’”

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Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

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Id. (quoting United States v.

Gilliard contends that his sentence was substantively

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unreasonable because the district court gave too much weight

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to his criminal history and the offense conduct itself.

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Gilliard also argues that the district court undervalued his

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poor mental and physical health and the relationship between

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his substance abuse problem and his criminal conduct.

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disagree.

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We

The district court properly considered, and was well

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within its discretion to give great weight to, (1)

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Gilliard’s extensive criminal history and failed attempts to

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comply with terms of his supervised release; (2) the facts

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and circumstances of his crime; and (3) his high likelihood

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of recidivism and the need to deter him from committing

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future crimes.

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considered Gilliard’s personal circumstances and adequately

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explained why it could not reconcile them with his prior

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crimes and the instant offense.

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guess the weight (or lack thereof) that the district court

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accorded to these factors.

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443 F.3d 19, 34 (2d Cir. 2006); see also Cavera, 550 F.3d at

Moreover, the district court thoroughly

We find no reason to second

See United States v. Fernandez,

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191.

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Gilliard’s personal circumstances were outweighed by the

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high likelihood of recidivism and the serious nature of his

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crimes.

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The district court did not err in determining that

Taking into account the totality of the circumstances,

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the 96-month term of imprisonment was not “shockingly high

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. . . or otherwise unsupportable as a matter of law.”

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United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

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Thus, the sentence was substantively reasonable.

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For the foregoing reasons, the judgment of the district
court is hereby AFFIRMED.

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