USA v. Joseph Krul

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. John M. Rogers (AUTHORING) and Richard Allen Griffin (CONCURRING IN THE JUDGMENT), Circuit Judges; Gregory F. Van Tatenhove, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0297p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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No. 13-2451

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JOSEPH MICHAEL KRUL,
Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:13-cr-00028-1—Robert Holmes Bell, District Judge.
Argued: August 7, 2014
Decided and Filed: December 18, 2014
Before: ROGERS and GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge.*
_________________
COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Sally J. Berens, UNITED STATES ATTORNEY’S OFFICE, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. Phillip J. Green, UNITED
STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ROGERS, J., delivered the opinion of the court, in which VAN TATENHOVE, D.J.,
joined, and GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 7–16), delivered a separate
opinion concurring in the judgment.

*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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_________________
OPINION
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ROGERS, Circuit Judge. The defendant, Joseph Michael Krul, appeals his sentence on
the ground that the sentencing judge based the length of his sentence on rehabilitative goals,
contrary to the holding of Tapia v. United States, 131 S. Ct. 2382, 2392 (2011). That case,
however, requires reversal only where there is an identifiable basis for concluding that the
district court based the length of the sentence of incarceration in part on rehabilitation. In this
case there is no such basis.
In the summer of 2009, the then-felon Krul took a 9mm Glock handgun out of his
friend’s basement. Krul provided the firearm as collateral for a drug deal, but the dealer refused
to return it to Krul after the deal was completed. A chain of transfers eventually brought the
weapon into the hands of Roderic Dantzler, who used the weapon on a murderous spree. There
is no indication that Krul could have anticipated that Dantzler would ever come into possession
of the gun, or that the gun would be used to cause such havoc. Those involved in transferring the
firearm were targeted for prosecution. The one to whom Krul initially transferred the gun
cooperated with law enforcement authorities, and eventually Krul and the one that transferred the
weapon to Dantzler were indicted.
Krul pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). At sentencing, both the Government and Krul’s counsel agreed that the proper
Sentencing Guidelines range, based on the offense of conviction and Krul’s prior criminal
history, was 51 to 63 months. The court sentenced Krul to 63 months of imprisonment, to be
followed by three years of supervised release with various strict conditions.
Krul now appeals, arguing that some of the court’s statements during sentencing imply
that the court impermissibly factored rehabilitation into the length of his prison sentence.
Although rehabilitation is a main theme of the sentencing hearing, the transcript does not reveal
the particular improper purpose that Krul claims it does. Rather, the record demonstrates that the

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district court carefully considered rehabilitation for other, permissible purposes and that Krul
invited the discussion of rehabilitation by emphasizing rehabilitation during his own statement.
During the hearing, the sentencing court discussed its reasons for imposing the sentence.
The court began by stating that “what really troubles [it] the most in this matter” was Krul’s
extensive criminal history, starting at the age of fourteen when he was charged with unarmed
robbery, passing through early adolescence with four drunk-driving convictions, numerous
assaults (including domestic), and other assorted charges, and finally arriving at the present
federal felony. After reciting the litany of Krul’s prior criminal offenses—over thirty—the court
discussed Krul’s mental health history, including a diagnosis of Oppositional Defiant Disorder
and a history of substance abuse. At this point, the district court made the following statements,
which contain everything relied upon by Krul to assert a Tapia violation:
So that brings us to today, and that brings us to the question of the sentence,
looking at the nature and circumstances of this offense in light of the history I
have just recited in conclusive form. I think this was a serious offense. It showed
part of a continuation of no respect for laws, no respect for orders that we all in a
community and a society have to follow. And I’m sure you have an explanation
for every one of them. Someone ticked you off, someone disrespected you, things
weren’t the way they should have been. But I have to afford — this sentence has
to afford an adequate deterrence to criminal conduct and certainly has to protect
the public and provide you with some educational, correctional, and medical
treatment at the same time. It’s a tough balance to follow in this matter.
I think it requires that you be taken out of the community for a while and you be
given some programmatic opportunities, some of which you’ve already started.
Forgotten Man Ministries and other such things you’ve already started as a way to
come to terms with who you are and how you’re going to behave for the rest of
your life.
You understand what I’m looking at as a 31-year-old is I’m looking at the rest of
your life. Where are you going to be when you’re 41? Where are you going to be
when you’re 51? Where are you going to be when you’re 61? That’s what
concerns me. I see where you’ve been when you were 21 and I now see where
you are at 31, and I don’t like the direction we’re heading. We’ve got to stop.
We’ve got to look at this a little differently.
The sentence of this Court will be 63 months in the custody of the Federal Bureau
of Prisons. That’s the high end of the sentence guideline range. I thought of
going higher. I think there’s plenty of reason for going higher, but that would
enmesh us in an appeal and a bunch of other things. But I think 61 months (sic)
should be able to give the Federal Bureau of Prisons an opportunity to provide
you with education, educational opportunity, and will give you a mental health

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evaluation and placement and presumably some medication that will deal with
your emotions, that will deal with your ability to interact sociably with other
people, will give you the ability to hold your anger in check, and will give you an
understanding that laws must be obeyed.
The first two paragraphs clearly do not raise a Tapia concern, because they address the
overall sentence, and not just incarceration. When the district court stated that Krul’s “sentence
has to afford an adequate deterrence to criminal conduct and certainly has to protect the public
and provide you with some educational, correctional, and medical treatment at the same time,”
the court was discussing the overall sentence, which includes both the period of incarceration
and the conditions of supervised release. Supervised release is part of a sentence. Indeed, for
Krul’s three years of supervised release, the court imposed many behavioral and psychological
treatment regimens, including a mental health treatment program, a prohibition on alcohol and
drugs, an injunction against associating with other ex-felons, and mandatory participation in
cognitive behavioral therapy. These conditions of supervised release, designed to habituate Krul
away from his prior drug-motivated criminal tendencies, reflect valid and reasonable
rehabilitative goals.
Tapia is based on a sentence in the statute—the “recognizing” clause—that limits only
the length of imprisonment, not other parts of the sentence. Section 3582(a) states:
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 section 3553(a) to the extent that they are
applicable, recognizing that imprisonment is not an appropriate means of
promoting correction and rehabilitation.
18 U.S.C. § 3582(a) (emphasis added). This language by its very terms constrains only “a
sentencing court’s decision both to impose and to lengthen a prison term.” Tapia, 131 S. Ct. at
2389–90. Section 3553(a)(2)(D)’s requirement that the sentencing judge consider “the need for
the sentence imposed . . . to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment” continues to apply to the judge’s
imposition of terms of punishment other than imprisonment, such as supervised release and
probation. See Tapia, 131 S. Ct. at 2387–88.

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It is, therefore, perfectly consistent with the Tapia holding for the district court to rely on
providing rehabilitation in support of an overall sentence that includes supervision as well as
imprisonment. Indeed, even with respect to incarceration, the Tapia Court confirmed the basic
principle that “a court properly may address a person who is about to begin a prison term about
the[] important matters” of rehabilitation and the opportunity for specific treatment programs in
prison. Tapia, 131 S. Ct. at 2392.
Thus, it is only the final paragraph of the above quote that even arguably runs afoul of
Tapia. But the district court nowhere in that paragraph suggested that the imprisonment was
lengthened to permit participation in a rehabilitative program. The context shows that the court
was at pains to show why the term was shorter than what the government requested. In doing so,
the court wanted to assure the defendant that the types of programs he desired were still
available. Indeed, Krul invited this commentary on rehabilitation. Earlier during the hearing,
Krul professed, “I will use this time for rehabilitation to better myself and my role in society.”
He then assured the court that he would “enroll in any class, course or program . . . offered” to
him. After this promise, the court’s discussion of treatment options appears as assurance that
such programs will be available, not as a basis for lengthening incarceration.1 Moreover, the law
of this circuit, of which the court was doubtless aware, prohibited the extension of incarceration
terms for rehabilitative purposes. See, e.g., United States v. Walker, 649 F.3d 511, 513–14 (6th
Cir. 2011).
Tapia was much different. In Tapia, the district court pegged the length of the sentence
to accommodate a particular drug treatment program within the prison system, stating explicitly:
“[O]ne of the factors that affects [the sentence] is the need to provide treatment. In other words,
so she is in long enough to get the 500 Hour Drug Program, number one.” 131 S. Ct. at 2385.
The Supreme Court construed this statement as “indicat[ing] that Tapia should serve a prison
term long enough to qualify for and complete that program.” See id. Moreover, the Tapia Court

1

Because rehabilitative programs, such as the Residential Drug and Alcohol Program that was
central to Tapia, are located only at certain prisons, district court judges frequently provide treatment
program recommendations, along with a detailed discussion of why a defendant should be placed in such
a program, to help ensure that the Bureau of Prisons places the defendant in a better suited facility. The
Tapia Court commended the practice of a district court’s “trying to get [the defendant] into an effective
drug treatment program.” 131 S. Ct. at 2392.

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was addressing a district court sentencing in the Ninth Circuit, which at that time clearly
permitted the ability to complete rehabilitative programs as a factor in determining the length of
imprisonment. See United States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994); see also Tapia, 131
S. Ct. at 2394 (Sotomayor, J., concurring).
It is true that Tapia contains language that might be read expansively to require a
resentencing whenever there is a “possibility” that permitting rehabilitation extended the length
of the sentence of imprisonment. The Court there reversed because “the sentencing transcript
suggests the possibility that Tapia’s sentence was based on her rehabilitative needs.” Tapia, 131
S. Ct. at 2392 (emphasis added). But this cannot mean that reversal is required whenever it is
merely possible that rehabilitation drove the length of imprisonment. Such an expansive reading
would effectively require district courts to disavow explicitly such a possibility to avoid reversal.
The Supreme Court did not require this. Instead, the Court went on to say that
the [sentencing] court may have done more— . . . it may have selected the length
of the sentence to ensure that Tapia could complete the 500 Hour Drug Program.
“The sentence has to be sufficient,” the court explained, “to provide needed
correctional treatment, and here I think the needed correctional treatment is the
500 Hour Drug Program.” . . . These statements suggest that the court may have
calculated the length of Tapia’s sentence to ensure that she receive certain
rehabilitative services. And that a sentencing court may not do. As we have held,
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 2392–93 (emphasis added).
Here, the district court’s statement that a certain term of imprisonment will provide an
opportunity to rehabilitate Krul does not indicate that it did what the lower court in Tapia
impermissibly did, namely “suggest that the court may have calculated the length of Tapia’s
sentence to ensure that she receive certain rehabilitative services.” See id. at 2393.
The judgment of the district court is affirmed.

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_____________________________________
CONCURRENCE IN THE JUDGMENT
_____________________________________
GRIFFIN, Circuit Judge, concurring in the judgment. In Tapia v. United States, 131 S.
Ct. 2382 (2011), the Supreme Court held that 18 U.S.C. § 3582(a) prohibits the federal courts
from “impos[ing]” any portion of a prison sentence or “lengthen[ing]” it in order to rehabilitate a
criminal defendant. Id. at 2393. The majority opinion limits Tapia to the latter portion of its
holding—that Tapia prohibits district courts only from “identifiabl[y]” lengthening a prison
sentence for rehabilitative purposes. I respectfully disagree. In my view, the majority opinion
confuses the question of whether there was a Tapia error with the question of whether the error
was prejudicial and therefore remediable upon appellate review. In so doing, it minimizes the
shift in penological attitudes enshrined in § 3582(a) and recognized in Tapia as binding on the
federal courts. Although I ultimately agree with the majority to affirm Krul’s within-Guidelines
sentence, the district court should be affirmed not because it did not err, but because Krul has
failed to demonstrate that the district court’s error affected his substantial rights. Therefore, I
concur in the judgment only.
I.
Under the majority’s approach, a federal prison sentence violates Tapia only if an
appellate court can isolate a discrete portion of the sentence as having been imposed solely for
impermissible rehabilitative reasons, regardless of whether the district court’s sentencing
colloquy reveals that rehabilitation was one of the factors that shaped its determination of
whether the defendant should be sent to prison and how long he should stay there. Admittedly,
this approach has the potential merit of being relatively simple to administer on appeal. But it
has the distinct disadvantage of being incompatible with what Tapia commands.
18 U.S.C. § 3553(a)(2)(D) generally advises sentencing courts that rehabilitation is one
possible consideration that may factor into its determination of an appropriate sentence. But the
statute that specifically governs which considerations may guide a district court when it imposes
a sentence of imprisonment (as opposed to supervised release, probation, or fines) provides that a
district court “shall consider the factors set forth in section 3553(a) to the extent that they are

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applicable, recognizing that imprisonment is not an appropriate means of promoting correction
and rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). In Tapia, the Supreme Court
resolved this potentially conflicting statutory language by holding that § 3582(a) precludes a
district court from using a prison sentence to promote a defendant’s rehabilitation: “‘[W]hen
sentencing an offender to prison, the court shall consider all the purposes of punishment except
rehabilitation—because imprisonment is not an appropriate means of pursuing that goal.’”
United States v. Deen, 706 F.3d 760, 765 (6th Cir. 2013) (quoting Tapia, 131 S. Ct. at 2389);
United States v. Walker, 649 F.3d 511, 513 (6th Cir. 2011).
Tapia directs that no portion of a prison sentence may be imposed for the purpose of
rehabilitating the defendant, regardless of whether the prison sentence also serves other,
legitimate penological ends. As the Court put it, § 3582(a) contains a succinct command to
district courts: “Do not think about prison as a way to rehabilitate an offender.” Tapia, 131 S.
Ct. at 2390. A district court therefore commits a Tapia error where it “considers rehabilitation
when crafting a sentence of imprisonment.” United States v. Vandergrift, 754 F.3d 1303, 1310
(11th Cir. 2014); see also United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012) (“Tapia
. . . drew a line between the consideration of a defendant’s rehabilitative needs when determining
the fact or length of imprisonment—which is improper—and the consideration of the same when
recommending treatment options or the location of confinement—which is altogether sound.”).
This is not to say, however, that a sentencing court errs every time that it mentions a
defendant’s ability to be rehabilitated. Tapia itself recognized that it may be appropriate for a
sentencing court to observe that a prison sentence will have the beneficial side-effect of affording
an opportunity for a defendant to rehabilitate, so long as the court does not send the defendant to
prison or keep him there for the purpose of giving the defendant the opportunity to do so. See
id., 131 S. Ct. at 2392; United States v. Blackmon, 662 F.3d 981, 986 (8th Cir. 2011). Thus, the
“dividing line” separating impermissible from permissible conduct is “whether a sentencing
court’s reference to rehabilitative needs was causally related to the length of the sentence” or was
instead simply an observation about one of several “consequences and opportunities” attendant
upon the fact that the defendant would be going to prison. United States v. Del Valle-Rodriguez,
761 F.3d 171, 174 (1st Cir. 2014). The district court may hope that a defendant uses his time in
prison wisely in order to better integrate with society upon his release, but it cannot send him to

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prison or prolong his stay there for the purpose of making it happen. See United States v. Grant,
664 F.3d 276, 282 (9th Cir. 2011) (“When a judge imposes prison, he may wisely believe that it
will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.”).
Thus, the majority opinion is incorrect that Tapia is violated only if an appellate court can
identify a discrete portion of the sentence that has been tacked on for rehabilitative purposes.
Tapia’s dictate that a district court may not consider rehabilitation either when “impos[ing]” any
portion of a prison sentence or when “lengthen[ing]” it is comprehensive:

it means that

rehabilitative considerations may not factor into a prison sentence at all. See Tapia, 131 S. Ct. at
2390 (“Do not think about prison as a way to rehabilitate an offender.”). Under the majority’s
contrary approach, a district court is permitted to impose a sentence for rehabilitative purposes so
long as there are also other legitimate purposes driving the sentence. That may be perfectly
acceptable as a matter of policy, but it is incorrect as a matter of law. Congress has chosen to
preclude federal courts from considering rehabilitation when fashioning prison sentences, and
Tapia cannot be read as permitting district courts to flout its direction.
After all, although it is possible to draw quite a fine line between Tapia-compliant and
Tapia-violative practices, Tapia’s insistence that rehabilitation be taken off the table when
determining whether or how long to send a defendant to prison is not a mere technicality.
Instead, as Tapia recognized, § 3582(a)’s prohibition of using incarceration for rehabilitative
ends represents a fundamental shift in penological theory. Congress recalibrated its approach to
rehabilitation in part because of the unfairly disparate effects of using indeterminate prison
sentences as a behavioral tool to keep an offender in prison, see Tapia, 131 S. Ct. at 2387; in part
due to a growing consensus that efforts at rehabilitation had largely failed, see id.; and in part out
of a desire to punish offenders for what they had done rather than for who they were. Mistretta
v. United States, 488 U.S. 361, 363 (1989). By enacting the current version of § 3582(a),
Congress made the conscious decision to alter federal sentencing practices, choosing to allow
only the imposition of a set term of imprisonment based on the offender’s deeds instead of
consigning the offender’s release date to judicial officers with “very broad discretion” to
determine whether the offender was in their view worthy of reentry into society. Id. A federal
court may send a defendant to prison and keep him there in order to punish, deter, or incapacitate

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him, see 18 U.S.C. § 3553(a)(2)(A)–(C), but it cannot use the blunt instrument of institutional
incarceration to try to mold him into a socially acceptable citizen.
Thus, although the majority downplays the importance of Tapia and narrowly reads the
sentencing transcript in this case in an attempt to avoid its implications, the statutory prohibition
against sending a federal defendant to prison in order for him to become a “better” person is not
simply a matter of semantics. It involves questions foundational to the federal penological
enterprise—issues that have been debated literally for centuries. See id. at 365–66; Jessica M.
Eaglin, Against Neorehabilitation, 66 SMU L. Rev. 189, 214–18 (2013) (discussing some
potentially disparate effects of rehabilitative emphases); Edward L. Rubin, The Inevitability of
Rehabilitation, 19 Law & Ineq. 343, 367–76 (2001) (noting disputes over rehabilitation theory);
Immanuel Kant, The Metaphysics of Morals 105 (Mary Gregor trans., Cambridge Univ. Press
1996) (“Punishment by a court . . . can never be inflicted merely as a means to promote some
other good for the criminal himself or for civil society. It must always be inflicted upon him
only because he has committed a crime. For a human being can never be treated merely as a
means . . . . He must previously have been found punishable before any thought can be given to
drawing from his punishment something of use for himself or his fellow citizens.”) (emphases
deleted).
II.
In the present case, the district court began the relevant discussion by observing, “So that
brings us to today, and that brings us to the question of the sentence . . . .” The district court
explained that “this sentence” needed to both deter Krul from future misconduct “and provide
you with some educational, correctional, and medical treatment at the same time.” According to
the district court, the appropriate sentence “requires that you be taken out of the community for a
while and you be given some programmatic opportunities . . . .” After explaining, “I don’t like
the direction” that Krul’s recidivist path was taking him, the district court announced that “[t]he
sentence of this Court will be 63 months in the custody of the Federal Bureau of Prisons,”
observing that “6[3] months should be able to give the Federal Bureau of Prisons an opportunity”
to provide Krul with rehabilitative programs “that will deal with your ability to interact sociably

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with other people, will give you the ability to hold your anger in check, and will give you an
understanding that laws must be obeyed.”
The import of the district court’s statements is obvious: the district court believed that
the appropriate term of incarceration needed to provide Krul with rehabilitative programs “at
the same time” that it would function to deter him from wrongful conduct and concluded that a
63-month prison term was long enough to give the federal prison system an opportunity to do so.
Because the transcript reflects that the district court considered rehabilitative goals when
fashioning Krul’s prison sentence, its conduct fell afoul of Tapia. See Walker, 649 F.3d at 513
(although Tapia does not preclude a district court from observing that the length of the sentence
that it has imposed for other (legitimate) reasons may present an opportunity for rehabilitation, it
precludes a district court from using rehabilitation as a factor when determining how lengthy of a
sentence to impose in the first place).
The majority, however, interprets the district court’s initial use of the word “sentence” as
referring not only to the chosen period of incarceration but to the “overall sentence,” including
the subsequent period of supervised release—making the entire discussion Tapia-compliant.
This reading of the transcript does not withstand principled scrutiny. The district court itself
explained that “[t]he sentence of this Court will be 63 months” in prison.

At that point,

obviously, the district court used the term “the sentence” to refer to the contemplated term of
incarceration, not to both the prison term and the following term of supervised release. It strains
credulity to assert that the district court used the same term—“the sentence”—a mere two-and-ahalf paragraphs (or roughly sixty seconds) earlier to mean something entirely different. The
majority’s position is that two nearly contemporaneous uses of the identical term “clearly” have
different meanings, but the far less strained interpretation is that the district court used the same
word twice to mean the same thing.
The district court’s post-prison-sentence discussion of supervised release is also
significant. It is difficult to conclude that the district court was speaking of supervised release
when it explained to Krul that his “sentence” required that “you be taken out of the community
for a while and you be given some programmatic opportunities.” A person on supervised
release, obviously, is in the community, not out of it. And, as examples of the “programmatic

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opportunities” that the district court had in mind, the district court identified some specific
rehabilitation programs that Krul had already started while in prison. Which makes sense: the
district court had just indicated that Krul needed to receive rehabilitative programming “at the
same time” that he was serving the portion of the sentence that would function to deter future
wrongful conduct—i.e., the term of incarceration. In short, every indication suggests that the
district court fashioned Krul’s prison sentence, not just his supervised release, with rehabilitation
in mind. Indeed, as is typical in federal sentencing practice, the district court did not even
mention supervised release until after it had finished determining the requisite term of
incarceration.
Regardless of whether we disagree with Congress’s sentencing policy as expressed in
§ 3582(a), it is our duty to fairly enforce the law as written. After doing so, I conclude that at
sentencing the district court violated § 3582(a) as construed by Tapia.
III.
Nevertheless, I agree with my colleagues to affirm Krul’s sentence.

After all, the

question whether there was an error at sentencing is different than whether defendant was
prejudiced by the error. In my view, the disposition of this case depends upon whether Krul can
demonstrate that the district court’s error affected his substantial rights.
Much of this portion of the analysis is controlled by the standard of review. As Krul
observes, this court has previously treated Tapia claims as a substantive reasonableness issue that
garners abuse-of-discretion review. See, e.g., Deen, 706 F.3d at 762. But the case upon which
Deen relied for the proposition that “[b]asing a sentence on impermissible factors is an example
of substantive reasonableness” is United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005),
which predated the Supreme Court’s subsequent elucidation in Gall v. United States, 552 U.S. 38
(2007), of the proper standards under which to review a federal sentence. See United States v.
Herrera-Zuniga, 571 F.3d 568, 579–80 (6th Cir. 2009) (observing that Gall undercuts the
language cited from Webb); United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)
(explaining sentencing review after Gall).
Gall clarified that procedural reasonableness review applies to the process by which the
district court arrives at its chosen sentence, whereas substantive reasonableness review requires a

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bird’s-eye assessment of the reasonableness of the sentence’s length, based on “the totality of the
circumstances.” 552 U.S. at 51. Gall, in fact, identifies “failing to consider the § 3553(a)
factors” as an example of procedural—not substantive—unreasonableness, and it seems apparent
that an opposite error of exactly the same kind—namely, improperly considering an extra
§ 3553(a) factor (i.e., rehabilitation)—is likewise an error that implicates a sentence’s
procedural, rather than substantive, reasonableness. Id. This court suggested as much in United
States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc), where we noted that the defendant’s
challenge to “the reasonableness of the length of his sentence” was a substantive-reasonableness
challenge, whereas a challenge to a sentencing issue “that became apparent as soon as the court
finished announcing its proposed sentence and that counsel nonetheless declined the court’s
invitation to address” was an allegation of procedural error that garnered only plain-error review.
See id. at 386, 389. Cf. United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010)
(“The essence of a substantive-reasonableness claim is whether the length of the sentence is
greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” (internal
quotation marks omitted)); United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (defining
substantive-reasonableness review as “provid[ing] a backstop for those few cases that, although
procedurally correct, would nonetheless damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter
of law”).
A Tapia error likewise involves a claim that the district court’s sentencing process was
flawed, is obvious at the time of sentencing, and could be remediated with a contemporaneous
objection. See Vonner, 516 F.3d at 386. Gall and Vonner therefore strongly suggest that an
alleged Tapia error is a claim of procedural unreasonableness that, if unpreserved, is reviewed
only for plain error.
In Henderson v. United States, 133 S. Ct. 1121 (2013), which was decided soon after
Deen, the Supreme Court cast serious doubt on the continuing validity of this circuit’s
characterization of a Tapia error as implicating a sentence’s substantive reasonableness.
Henderson, after all, was predicated on the assumption that an unpreserved Tapia error garners
only plain-error review. There, the defendant had been sentenced before the Supreme Court
decided Tapia, and his counsel had not objected at sentencing to the district court’s consideration

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of rehabilitation at sentencing. The Supreme Court observed that, “since Henderson’s counsel
had not objected [to the Tapia error] in the trial court, the Court of Appeals could not correct the
error unless [Federal Rule of Criminal Procedure] 52(b) applied. The Rule, however, applies
only if the error was ‘plain.’” Id. at 1125. Henderson went on to conclude that an error is
“plain” as long as it is plainly wrong at the time of appellate review, even if it was not plainly
incorrect at the time of the district court’s decision. Id. at 1124–25.1
Moreover, every other circuit that has decided the issue has chosen to review unpreserved
Tapia claims for plain error, consistent with Henderson. See, e.g., United States v. Del ValleRodriguez, 761 F.3d 171, 174 (1st Cir. 2014); United States v. Vandergrift, 754 F.3d 1303, 1307
(11th Cir. 2014); United States v. Wooley, 740 F.3d 359, 368 (5th Cir. 2014); United States v.
Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013); United States v. Pickar, 666 F.3d 1167, 1169 (8th Cir.
2012); United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012); United States v. Grant, 664
F.3d 276, 279 (9th Cir. 2011); United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir. 2011).
See also United States v. Godoy, 706 F.3d 493, 496 (D.C. Cir. 2013) (declining to decide the
question); United States v. Gallagher, 526 F. App’x 658, 661 (7th Cir. 2013) (assuming, without
deciding, that plain error applied).
To the extent that Deen—relying upon this court’s pre-Gall and pre-Henderson
practice—suggested a result different than that reached by every other circuit that has considered
the issue, Henderson has placed its approach in serious peril. After all, if this court’s preHenderson approach was correct, then Henderson was “a fool’s errand.” Cf. United States v.
Blewett, 746 F.3d 647, 658 (6th Cir. 2013) (en banc) (noting similar effects in the Fair
Sentencing Act context). This court’s pre-Henderson approach therefore enjoys the dubious
distinction of being both alone among the circuits and implicitly rejected by the Supreme Court.
Given this authority, I conclude that plain-error review should apply to Krul’s
unpreserved Tapia challenge. Beyond being mandated by pertinent case law, this approach
makes practical sense. The specter of plain-error review for an unpreserved Tapia challenge
incentivizes a criminal defendant to make a contemporaneous Tapia objection at sentencing,
1

Tapia itself also seems to have assumed that Rule 52(b)’s plain-error analysis would control the ability of
a defendant to rely upon an unpreserved allegation of Tapia error. See id., 131 S. Ct. at 2393.

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thereby giving the district court an opportunity to ensure that impermissible rehabilitative goals
are not influencing its sentencing decision. See Vonner, 516 F.3d at 386.
On de novo review, a Tapia error results in a procedurally unreasonable sentence. But
where a defendant has not raised the Tapia issue to the sentencing court’s attention, plain-error
review requires him to show “(1) error (2) that was obvious or clear, (3) that affected [his]
substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial
proceedings.” Id. (internal quotation marks omitted). Because “[a] sentencing error affects a
defendant’s substantial rights when there is a reasonable probability that, but for the error, the
defendant would have received a more favorable sentence,” United States v. Ferguson, 681 F.3d
826, 833 (6th Cir. 2012) (internal alteration and citation omitted), subjecting unpreserved Tapia
claims to plain-error review means in practical terms that a defendant must identify some reason
to believe that the district court would have given him a different sentence if it had not
impermissibly considered rehabilitative goals.
Although the majority in this case affirms without reaching the issue of plain error, the
result would be the same even if it had. “[T]he burden of establishing entitlement to relief for
plain error is on the defendant claiming it,” United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004), and Krul has failed to show a reasonable probability “that his sentence would have been
different but for the court’s consideration of rehabilitation.” Vandergrift, 754 F.3d at 1312. Krul
has only pointed to the district court’s statements and stated that they violated Tapia. He then
requests that, because there is no way of knowing what would have happened if the district court
had taken rehabilitation entirely off the table, his case should be remanded for resentencing.
But relying on an absence of evidence is not the same as demonstrating a “reasonable
probability” that the result at sentencing would have been different. “[B]ecause the district court
never expressed an intention to lengthen [Krul’s] sentence for rehabilitative purposes . . . we
would have to speculate whether he would have received a lighter sentence absent the court’s
comment[s] about the defendant’s [rehabilitative needs].” Pickar, 666 F.3d at 1169 (internal
quotation marks omitted). Krul has therefore failed to demonstrate that his substantial rights
were affected by the alleged error. Id. Cf. United States v. Tolbert, 668 F.3d 798, 803 (6th Cir.
2012) (“[T]he district court . . . appears to have selected a within-Guidelines sentence primarily

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due to the seriousness of the crime, the need for deterrence, and the need to protect the public.”);
Vandergrift, 754 F.3d at 1312 (citation omitted) (Tapia error did not affect substantial rights
where rehabilitation concerns did not “dr[i]ve the district court’s sentencing decision”); Bennett,
698 F.3d at 201 (Tapia error did not affect defendant’s substantial rights where the sentencing
court stated that it “will impose a sentence that provides ample time for [intensive substance
abuse treatment]” and that the sentence was intended to both “reflect the serious nature of the
breach of trust” and “provide ample time for substance abuse treatment”). See also United States
v. Culbertson, 712 F.3d 235, 243–44 (5th Cir. 2013) (reversible Tapia error where the district
court repeatedly referred to the defendant’s rehabilitation needs in imposing a sentence three
times the Guideline range); Wooley, 740 F.3d at 365 (reversible Tapia error where sentence was
crafted explicitly for the “purpose[]” of affording the defendant rehabilitative treatment);
Cordery, 656 F.3d at 1105 (reversible Tapia error where district court expressly calculated the
length of the sentence to permit the defendant to participate in rehabilitation programs).
For these reasons, although I disagree with the majority’s holding that the district court
did not commit a Tapia error, I agree that Krul is not entitled to reversal of his within-Guidelines
sentence, having failed to satisfy his burden under plain-error review. I therefore concur in the
judgment only.