United States of America v. Alejandra Tapia

Filing

FILED OPINION (MARY M. SCHROEDER, STEPHEN R. REINHARDT and HENRY E. HUDSON) VACATED; REMANDED. , Judge: SR Authoring, FILED AND ENTERED JUDGMENT. [7993001]

Case: 09-50248

12/08/2011

ID: 7993001

DktEntry: 47-1

Page: 1 of 9

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJANDRA TAPIA,
Defendant-Appellant.





No. 09-50248
D.C. No.
3:08-CR-00249BTM-2
OPINION

On Remand from the United States Supreme Court
Argued and Submitted
November 10, 2011—Pasadena, California
Filed December 8, 2011
Before: Mary M. Schroeder and Stephen Reinhardt,
Circuit Judges, and Henry E. Hudson, District Judge.*
Opinion by Judge Reinhardt

*The Honorable Henry E. Hudson, District Judge for the U.S. District
Court for Eastern Virginia, sitting by designation.

20893

Case: 09-50248

12/08/2011

ID: 7993001

DktEntry: 47-1

UNITED STATES v. TAPIA

Page: 2 of 9

20895

COUNSEL
Arnold Dale Blankenship, Assistant U.S. Attorney, San
Diego, California; Bruce R. Castetter, Assistant U.S. Attorney, San Diego, California; Jaime D. Parks, Assistant U.S.
Attorney, San Diego, California, for the plaintiff-appellee.
Michelle Betancourt, Federal Defender, San Diego, California; Doug Keller, Federal Defender, San Diego, California;
Reuben Camper Cahn, Executive Director, Federal Defenders
of San Diego, San Diego, California; James Fife, Federal
Defender, San Diego, California, for the defendant-appellant.

OPINION
REINHARDT, Circuit Judge:
In sentencing Alejandra Tapia (“Tapia”) following her conviction on immigration and bail-jumping charges, the district
judge made a number of comments suggesting that the length
of the sentence he imposed was determined at least in part by
a desire to ensure that Tapia received drug treatment while in

Case: 09-50248

20896

12/08/2011

ID: 7993001

DktEntry: 47-1

Page: 3 of 9

UNITED STATES v. TAPIA

prison. We affirmed Tapia’s sentence, but the Supreme Court
reversed, remanding to this court to determine whether Tapia
is entitled to relief despite her failure to object to her sentence
when imposed. Tapia v. United States 131 S.Ct. 2382, 239193 (2011). We hold that the district court’s consideration of
Tapia’s rehabilitative needs in determining her sentence constituted plain error. We therefore vacate the sentence and
remand for resentencing.
I.
Border patrol agents arrested Tapia and Tinamarie Torres
Debenedetto after they attempted to cross into the United
States from Mexico with two undocumented aliens concealed
in their car. Tapia was indicted for bringing an illegal alien
into the country without presentation and for financial gain in
violation of 8 U.S.C. §§ 1324(a)(2)(B)(ii) and (iii), and was
released on her own recognizance. When she did not attend
a motion hearing, a superceding indictment was issued
encompassing the additional charge of knowing failure to
appear in violation of 18 U.S.C. § 3146. A federal jury convicted her of the immigration and bail-jumping charges.
At sentencing, the government sought a sentence of 63
months imprisonment. After the district judge determined that
the Guidelines sentence range for Tapia was 41 to 51 months,
he imposed a sentence of 51 months. In complying with his
obligation to explain his reasons for imposing a sentence of
this length, see Gall v. United States, 552 U.S. 38, 49-50
(2007), the district judge repeatedly invoked Tapia’s struggles
with substance abuse, and her need to be enrolled in a drug
treatment program. At no point in these proceedings did Tapia
object to the sentence imposed. She appealed, however, challenging the district judge’s consideration at sentencing of her
need to receive drug treatment. We affirmed, citing circuit
precedent holding that a district court could properly consider
the need for rehabilitation in determining the length of an
offender’s prison term. United States v. Tapia, 376 Fed.

Case: 09-50248

12/08/2011

ID: 7993001

DktEntry: 47-1

UNITED STATES v. TAPIA

Page: 4 of 9

20897

Appx. 707 (9th Cir. 2010) (citing United States v. Duran, 37
F.3d 557, 561 (9th Cir. 1994)).
The Supreme Court unanimously reversed. Tapia, 131
S.Ct. at 2385. The Court concluded that 18 U.S.C. § 3582(a)
“precludes sentencing courts from imposing or lengthening a
prison term to promote an offender’s rehabilitation.” Id. at
2391.1 The Court declined, however, to vacate Tapia’s sentence. Id. at 2393. It observed only that the district judge’s
comments at sentencing “suggest[ed] the possibility that
Tapia’s sentence was based on her rehabilitative needs,” and
remanded the case “for further proceedings consistent with
[its] opinion,” leaving it “to the Court of Appeals to consider
the effect of Tapia’s failure to object to the sentence when
imposed.” Id. at 2392-93.
II.
Where, as here, a defendant did not raise her objection to
her sentence before the district court, we review for plain
error. See Fed R. Crim. Proc. 52(b); United States v. Waknine,
543 F.3d 546, 551 (9th Cir. 2008). Under the plain error standard of review, the appellant must show that “there is (1) error
that is (2) plain, (3) affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Charles, 581 F.3d 927, 933
(9th Cir. 2009) (quoting United States v. Cruz, 554 F.3d 840,
845 (9th Cir. 2009)) (internal quotation mark omitted).2
1

The relevant statutory language is as follows:
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).
2
Tapia contends that, because the question on appeal is “purely one of
law,” and the government would “suffer no prejudice as a result of the

Case: 09-50248

20898

12/08/2011

ID: 7993001

DktEntry: 47-1

Page: 5 of 9

UNITED STATES v. TAPIA

III.
[1] The government concedes that Tapia has met the first
two prongs of the plain error standard: the district court erred
in considering Tapia’s correctional and rehabilitative needs at
sentencing, and that error was plain. The question is, therefore, whether Tapia has demonstrated that this error “affected
substantial rights” and “seriously affected the fairness, integrity or public reputation of judicial proceedings.” We conclude that she has.
A.
[2] To show that the district court’s error affected her substantial rights, Tapia must demonstrate “a reasonable probability that [she] would have received a different sentence” if
the district court had not erred. Waknine, 543 F.3d at 55;
United States v. Dominguez-Benitez, 542 U.S. 74, 81-82
(2004); see United States v. Ameline, 409 F.3d 1073, 1078
(9th Cir. 2005) (en banc). A “reasonable probability” is, of
course, less than a certainty, or even a likelihood. See
Dominguez-Benitez, 542 U.S. at 86 (Scalia, J., concurring in
the judgment) (observing that the “reasonable probability”
standard is more “defendant-friendly” than the “more likely
than not” standard). This court has held that the standard can
be met even without direct evidence of what sentence would
have been imposed if not for the district court’s error. See,
e.g., United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir.
2008) (although the district court’s intentions were “difficult
to discern,” its erroneous calculation of an offender’s Criminal History Category “could easily have . . . led [it] to impose
an additional one month of imprisonment,” and thus affected
substantial rights).
failure to raise the issue in the trial court,” we need not apply the restrictive plain error standard. See United States v. Evans-Martinez, 611 F.3d
635, 642 (9th Cir. 2010). Because we hold that Tapia is entitled to relief
even under the plain error standard, we need not address this contention.

Case: 09-50248

12/08/2011

ID: 7993001

DktEntry: 47-1

UNITED STATES v. TAPIA

Page: 6 of 9

20899

We conclude there is a “reasonable probability” that the
district judge’s consideration of Tapia’s rehabilitative needs
influenced the length of the sentence he imposed. The district
judge said the sentence had to be “be sufficient to provide
needed correctional treatment,” which he determined to be
“the 500 Hour Drug program.” He stated that one of the factors that “affect[ed]” the length of the sentence he chose was
“the need to provide treatment,” and that a lesser sentence
“would not deter [Tapia] and provide for sufficient time so
she could begin to address these problems.” He added that the
sentence he imposed was “the least sentence that can be
imposed to effect all these reasons,” with “all these reasons”
clearly including both deterrence and rehabilitation. Although
some of these statements reveal that the district judge was
also concerned with deterrence, that does not mean that Tapia
has not established a “reasonable probability” that his consideration of her rehabilitative needs played a part in his decision
to impose the sentence he did; indeed, § 3582(a) contemplates
that multiple “factors” will have an impact on a district
court’s determination of the length of an offender’s sentence.
18 U.S.C. § 3582(a). The perceived need for time to ensure
rehabilitative treatment was undoubtedly a factor in the district judge’s determination of the length of Tapia’s sentence.
Moreover, even if only one of the factors cited by the district
judge had ultimately affected the length of the sentence, the
statements relating to the drug rehabilitation program establish a “reasonable probability” that it would have been rehabilitation.3
3

The government contends that the district judge’s statements at sentencing should not be taken at face value, as a 51-month sentence was
unnecessarily long if he was motivated by a desire to ensure that Tapia
would receive rehabilitative treatment while in prison. The 500 Hour Drug
Program in which the district judge recommended that she enroll takes
less than 30 months to complete. See Minotti v. Whitehead, 584 F. Supp.
2d 750, 755 (D.Md. 2008). There are a number of considerations, however, that might explain why the district judge may have thought that a 51month sentence was necessary for Tapia to be able to participate in the
program. First, Tapia had already been in federal custody for 193 days at

Case: 09-50248

20900

12/08/2011

ID: 7993001

DktEntry: 47-1

Page: 7 of 9

UNITED STATES v. TAPIA

[3] There is little reason to think that the district judge did
not mean what he said in sentencing Tapia. He stated that “the
need to provide treatment” was one of the considerations that
“affect[ed]” the length of the sentence he imposed. We take
him at his word, and hold that Tapia has shown that there is
a “reasonable probability that [she] would have received a different sentence” but for the district judge’s impermissible
consideration of this factor. Waknine, 543 F.3d at 554.
the time of her sentencing, and thus could be expected to serve only an
additional 45 months of the 51-month sentence that the court imposed. See
18 U.S.C. § 3585(b). Second, the district judge may have taken into
account that Tapia could experience delays in entering the drug treatment
program. For example, the district judge may have thought that Tapia
would be reluctant initially to enter the program, but believed that, if so,
additional time in prison would convince her to do so. He may have also
anticipated that delays could result from Tapia being initially placed in a
facility that did not offer the program, or as a result of the extensive number of prisoners on the program’s waiting list. See FEDERAL BUREAU OF
PRISONS, STATE OF THE BUREAU 2009 at 26, available at http://
www.bop.gov/news/PDFs/sob09.pdf (observing that over the last year the
waiting list for this program had been reduced from 7,600 to 6,200 prisoners); United States v. Manzella, 475 F.3d 152, 156 (3d Cir. 2007) (district
court had determined that the “Bureau of Prisons [normally] wished to
have 36 months to conduct the program in light of scheduling issues”).
Third, the district judge may have wanted to provide extra time in case
Tapia engaged in misconduct that resulted in her being removed from the
waiting list and having to wait six months before reapplying to the program. See BOP Program Statement No. P5330.11 § 2.5.5, available at
http://www.bop.gov/policy/progstat/5330_011.pdf. Finally, the district
judge may have taken into account the sentence reduction of up to one
year that the Bureau of Prisons is authorized to grant to non-violent
offenders who successfully complete the drug treatment program, see 18
U.S.C. § 3621(e)(2)(B); he could have also reasoned that only if Tapia
could complete her sentence and then receive a reduction in prison time
would she have a sufficient incentive to enter the program in the first
place. Various combinations of these factors could have led the experienced district judge to rationally conclude that the 51-month sentence he
imposed was, as he put it, “the necessary sentence” to promote Tapia’s
rehabilitation.

Case: 09-50248

12/08/2011

ID: 7993001

DktEntry: 47-1

UNITED STATES v. TAPIA

Page: 8 of 9

20901

B.
[4] Tapia has also demonstrated that this error “seriously
affected the fairness, integrity, or public reputation of judicial
proceedings.” We have regularly deemed the fourth prong of
the plain error standard to have been satisfied where, as here,
the sentencing court committed a legal error that may have
increased the length of a defendant’s sentence. See, e.g., id. at
554-55; United States v. Castillo-Casiano, 198 F.3d 787, 792
(9th Cir. 1999), amended by 204 F.3d 1257 (9th Cir. 2000);
United States v. Lawton, 193 F.3d 1087, 1095 (9th Cir. 1999),
superseded in part on other grounds, U.S.S.G. App’x C. para.
604 (2000), as recognized in United States v. BarraganEspinoza, 350 F.3d 978, 983 (9th Cir. 2003). As we explained
in Castillo-Casiano:
It is easy to see why prejudicial sentencing errors
undermine the “fairness, integrity, and public reputation of judicial proceedings:” such errors impose a
longer sentence than might have been imposed had
the court not plainly erred. Defendants . . . may be
kept in jail for a number of years on account of a
plain error by a court, rather than because their
wrongful conduct warranted that period of incarceration. Moreover, there is little reason not to correct
plain sentencing errors when doing so is so simple a
task. . . . Reversing a sentence does not require that
a defendant be released or retried, but simply allows
a district court to exercise properly its authority to
impose a legally appropriate sentence.
198 F.3d at 792. For these same reasons, we exercise our discretion to notice the plain error committed by the district court
in this case. See Johnson v. United States, 520 U.S. 461, 467
(1997).
IV.
[5] Accordingly, we conclude that the district judge committed plain error by “lengthening [Tapia’s] prison term to

Case: 09-50248

20902

12/08/2011

ID: 7993001

DktEntry: 47-1

Page: 9 of 9

UNITED STATES v. TAPIA

promote [her] rehabilitation.” Tapia, 131 S.Ct. at 2391. We
vacate her sentence and remand for resentencing.
VACATED and REMANDED.