United States of America v. Todd Mitchell Culbertson

Defendant-Appellant Todd Mitchell Culbertson ("Culbertson”) appeals his

revocation sentence because he contends that the district court impermissibly

based the length of the sentence on the court's perception of his rehabilitative

needs, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011). The district

court sentenced Culbertson to 30 months imprisonment, followed by 113 days in

a residential reentry program, which was above his advisory guideline range of

5 to 11 months imprisonment. We conclude that the district court based

Culbertson's sentence on its perception of the defendant's rehabilitative needs.



We therefore VACATE the sentence and REMAND for resentencing.



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No. 11-10917



I. FACTUAL AND PROCEDURAL BACKGROUND



In January 2001, Culbertson pled guilty to possession with intent to

distribute methamphetamine. The district court sentenced him to 87 months of

imprisonment, followed by 5 years of supervised release. After his release from

prison, Culbertson violated his conditions of supervised release by using and

possessing methamphetamine on six separate occasions, using and possessing

marijuana, and failing to complete his 120-day residential reentry program by

failing to report after 7 days. At the revocation hearing on September 22, 2011,

the recommended guideline range of imprisonment was 5 to 11 months. Defense

counsel argued for a within-guidelines sentence, emphasizing that Culbertson

had struggled with a drug problem intermittently but had been relatively

successful while on supervised release for several years, and that his failure to

report timely to the residential reentry program was justified. He concluded by

stating that he would "object to anything above the guideline sentence as

substantively and procedurally reasonable.” The district court found Culbertson

in violation of his supervised release and revoked same.



Prior to imposing the sentence, the district court noted, "The United States

Sentencing Commission policy statements contained in Chapter 7 of the

guidelines manual regarding supervised release violations have been duly

considered.” The district court then sentenced Culbertson outside the guideline

range to 30 months of imprisonment, followed by the remaining 113 days of the

residential reentry program that the court previously imposed. The district

court further ordered that, upon release from imprisonment, Culbertson was to

serve 15 months of additional supervised release, with the same terms and

conditions as his prior term of supervision. The district court also ordered that

the sentence would run consecutively to any sentence imposed in Culbertson's

pending state court case. The district court concluded imposition of the sentence

by stating, "While under supervision, Mr. Culbertson committed the violations



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of using and possessing methamphetamine and marijuana and failing to

complete 120 days at the Volunteers of America. A sentence of 30 months and

113 days will serve as punishment and deterrence from further criminal activity.



I have now stated the sentence.”



The district court then solicited the parties' objections to the sentence.

Defense counsel objected to the "substantive and procedural reasonableness of

the sentence,” and to the sentence running consecutively to any sentence

imposed in the state court case. The district court overruled both objections

without further comment.



The district court then told Culbertson:



Now, Mr. Culbertson, I am not angry at you, and I'm

not ordering this sentence because I want to be punitive

or to hurt you. What I'm trying to do here is give you a

period of time where you can, once again, get clean and

sober and stay clean and sober and come out after you

serve your sentence and stop using drugs and stay on

your meds.



I can see you're an intelligent guy. You're competent

and you're capable, but, apparently, you have to stay on

your meds to do that, and I'm told that when you're out,

you don't really stay on your meds, and that causes a

cycle of problems. So I want you to work on that while

you're in the [Bureau of Prisons ("BOP”)].



Then, after discussing with Culbertson whether he might benefit from the

BOP's 500-hour drug program, the district court said, "I want you to be provided

with housing, and I want you to be taken care of while you get yourself together

and prepare yourself for reentry into society, and I've put you on 15 more months

of supervised release so we can help you do that.” The district court added as

explanation, "And so that we can also monitor you, because if you're not going

to stop using drugs and stop being a threat to society, we'll have to keep sending

you back.”



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Defense counsel then asked the court why it was imposing a sentence in

excess of the guideline range:



[DEFENSE COUNSEL]: Is there a need to triple the

guidelines, Your Honor? I'm not being disrespectful to

Your Honor. I'm just asking why so much time?



THE COURT: Because I think you need that time to

get yourself stabilized. I think if we gave you within

the guidelines, you would be there and then quickly out

and be right back here.



Culbertson timely filed a notice of appeal.



II. DISCUSSION



A. Tapia v. United States



In Tapia v. United States, a unanimous Supreme Court held that a district

court "may not impose or lengthen a prison sentence to enable an offender to

complete a treatment program or otherwise to promote rehabilitation.” 131 S.

Ct. 2382, 2393 (2011). In so holding, the Court noted 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 (citing 18 U.S.C. § 3582(a)).



The Court relied on the plain language of 18 U.S.C. § 3582(a), which provides

that, when a sentencing court is determining whether to impose a term of

imprisonment and the length of that term, it "shall consider the factors set forth

in [18 U.S.C.] section 3553(a)1 to the extent that they are applicable, recognizing



1 These "§ 3553(a) factors” include:



(1) the nature and circumstances of the offense and the history

and characteristics of the defendant;



(2) the need for the sentence imposed–



(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;



(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the



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that imprisonment is not an appropriate means of promoting correction and

rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). Interpreting this

statutory language, the Court reasoned, "what Congress said was that when

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.” Tapia, 131 S. Ct. at 2389.



On the other hand, Tapia also stated that "[a] court commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of

specific treatment or training programs.” Id. at 2392. "To the contrary, a court

properly may address a person who is about to begin a prison term about these

important matters” and "may urge the BOP to place an offender in a prison

treatment program.” Id. Thus, Tapia recognized a distinction between imposing

or lengthening a prison sentence based on rehabilitative needs and merely

discussing opportunities for rehabilitation while in prison.



During the initial sentencing in Tapia, the district court stated, "The

sentence has to be sufficient to provide needed correctional treatment, and here

I think the needed correctional treatment is the 500 Hour Drug Program.” Id.

at 2385, 2392. The district court again stated that the "'number one' thing 'is the

defendant; and



(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;



(3) the kinds of sentences available;



(4) the kinds of sentence and the sentencing range established .



. .



(5) any pertinent policy statement [of the U.S. Sentencing



Commission] . . .



(6) the need to avoid unwarranted sentence disparities among



defendants with similar records who have been found guilty of

similar conduct; and



(7) the need to provide restitution to any victims of the offense.



18 U.S.C. § 3553(a).



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need to provide treatment. In other words, so [the defendant] is in long enough

to get the 500 Hour Drug Program.'” Id. at 2392-93. The Supreme Court

concluded: "These statements suggest that the [district] 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.” Id. at 2393.



Importantly, Justice Sotomayor's concurring opinion in Tapia discussed at

length the fact that the sentencing judge carefully weighed all of the § 3553(a)

factors, not just the defendant's need for rehabilitation.2 Id. (Sotomayor, J.,

concurring).



On this record, the Supreme Court vacated and remanded the matter to

the Ninth Circuit, holding that the district court may have lengthened the

defendant's sentence impermissibly in order to make her eligible for the BOP's

500-hour drug treatment program.3 Tapia, 131 S. Ct. at 2392-93.



B. Post-Tapia



We have applied the Tapia rule to vacate initial sentences post-conviction

where the district court explicitly relied on the defendant's need for

rehabilitation in imposing or lengthening a sentence. See, e.g., United States v.

Broussard, 669 F.3d 537, 555 (5th Cir. 2012); United States v. Escalante-Reyes,

689 F.3d 415, 423-24 (5th Cir. 2012) (en banc). Until our recent decision in



2 For example, Justice Sotomayor highlighted that the sentencing judge considered,

inter alia:



"[t]he nature and circumstances of the offense”. . . emphasiz[ing]

that Tapia's criminal conduct "created a substantial risk of death

or serious bodily injury” to the smuggled aliens. . . . He noted his

particular concern about Tapia's criminal conduct while released

on bail, when she failed to appear and was found in an apartment

with methamphetamine, a sawed-off shotgun, and stolen mail[.]



Tapia, 131 S. Ct. at 2393 (Sotomayor, J., concurring) (internal citations omitted).



3 The Court left "it to the Court of Appeals to consider the effect of Tapia's failure to

object to the sentence when imposed.” Id. at 2393.



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United States v. Garza, however, it was an open question in this circuit whether

Tapia applied to terms of imprisonment imposed upon the revocation of

supervised release, as opposed to the original sentencing.4 See United States v.

Garza, 706 F.3d 655, 657-59 (5th Cir. 2013). In Garza, we held that "a

sentencing court may not consider rehabilitative needs in imposing or

lengthening any term of imprisonment,” including for revocations of supervised

release. Id. at 659 (emphasis added). In so holding, we "join[ed] the uniform

post-Tapia case law in our sister circuits,” including the First, Fourth, Eighth,

Ninth, and Tenth Circuits.5 See id. at 657 & n.5 (citations omitted).



Garza clarified that, while 18 U.S.C. § 3582(a) proscribes the consideration

of a defendant's rehabilitative needs when imposing a sentence, "this does not

mean . . . that a district court may make no reference to the rehabilitative

opportunities available to a defendant.” Id. at 659 (citing Tapia, 131 S. Ct. at

2392 (stating that "[a] court commits no error by discussing the opportunities for

rehabilitation within prison or the benefits of specific treatment or training

programs”)). Garza noted that "[a] district court also may legitimately 'urge the

[Bureau of Prisons] to place an offender in a prison treatment program.'” Id.



4 Although we held in United States v. Breland that, despite Tapia, a district court

could use rehabilitation concerns to determine a revocation sentence, the Supreme Court

vacated and remanded that decision for resentencing. See United States v. Breland, 647 F.3d

284, 290 (5th Cir. 2011) ("Breland I”), vacated by Breland v. United States, 132 S. Ct. 1096

(2012). The Supreme Court vacated Breland I in light of the Solicitor General's brief, which

acknowledged the Government's change of position agreeing with the defendant that Tapia

applies in the revocation context. Breland, 132 S. Ct. at 1096. On remand, we noted that the

Government agreed with the First and Ninth Circuits that district courts may not lengthen

a revocation sentence based on rehabilitative needs. United States v. Breland, 463 F. App'x

376, 376-77 (5th Cir. 2012) (per curiam) (unpublished) ("Breland II”) (citing United States v.

Molignaro, 649 F.3d 1, 5 (1st Cir. 2011) (Souter, J. (ret.), sitting by desig.); United States v.

Grant, 664 F.3d 276, 282 (9th Cir. 2011)). Thus, we remanded to the district court for

resentencing. Id. at 377.



5 See Molignaro, 649 F.3d at 5; United States v. Bennett, 698 F.3d 194, 197 (4th Cir.

2012); United States v. Taylor, 679 F.3d 1005, 1006 (8th Cir. 2012); Grant, 664 F.3d at 282;

United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012).



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(second alteration in original) (quoting Tapia, 131 S. Ct. at 2392). "However,

when the district court's concern for rehabilitative needs goes further—when the

sentencing record discloses 'that the court may have calculated the length of [the

defendant's] sentence to ensure that she receive certain rehabilitative services'—

§ 3582(a) has been violated.” Id. at 659-60 (quoting Tapia, 131 S. Ct. at 2393).



Garza further observed that "[o]ur limited precedent post-Tapia has described

the distinction between legitimate commentary and inappropriate consideration

as whether rehabilitation is a "secondary concern” or "additional justification”

(permissible) as opposed to a "dominant factor” (impermissible) informing the

district court's decision.” Id. at 660 (citing United States v. Receskey, 699 F.3d

807, 810, 812 (5th Cir. 2012) (finding no Tapia error where the district court

discussed the potential rehabilitation services available only after discussing its

unrelated reasons for selecting the length of the defendant's sentence);

Broussard, 669 F.3d at 545, 551-52 (finding Tapia error where the district court

described the defendant as "need[ing] help badly” and "sick in the head,” and it

emphasized "the need to incarcerate [the defendant] for the treatment that he

needs”)).



The district court in Garza imposed a sentence of 24 months'

imprisonment, where Garza's advisory guideline range was 3 to 9 months. Id.

at 660-62. We concluded that the district court impermissibly relied on the

defendant's rehabilitative needs, based on its statements that Garza "'should be

required [or] at least be given an opportunity to participate in that residential

institution drug treatment program' in order to 'get [Garza] straightened out.'”6

Id. at 660-61 (alterations in original). The district court stated that it would not

give Garza enough time for a long term program "because I don't think he really



6 In a dissenting opinion, Judge Haynes agreed with the panel majority that Tapia

applied to revocation sentences, but she disagreed with the conclusion that the district court

in Garza committed Tapia error. See Garza, 706 F.3d at 663-64 (Haynes, J., dissenting).



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needs that again. I think some of these shorter term programs ought to be

enough for him. . . . I'm hoping a 24 month term of imprisonment followed by a

24 month term of supervised release will be enough.” Id. at 661-62. Accordingly,

we concluded that, although the court might have been inclined to impose some

upward departure in light of Garza's conduct, "Garza's rehabilitative needs were

the dominant factor in the court's mind.” Id. at 662. We therefore vacated the

sentence and remanded for resentencing. Id. at 663.



C. Application of Tapia to Culbertson's Case



The Government argues that the district court did not violate Tapia

because the court did not lengthen Culbertson's sentence based on rehabilitative

needs. We disagree.



The district court expressly stated its reason for giving Culbertson three

times the guidelines range:



[DEFENSE COUNSEL]: Is there a need to triple the

guidelines, Your Honor? I'm not being disrespectful to

Your Honor. I'm just asking why so much time?



THE COURT: Because I think you need that time to

get yourself stabilized. I think if we gave you within

the guidelines, you would be there and then quickly out

and be right back here.



Additionally, the district court explained on several occasions that its purpose

in imposing the sentence was to provide Culbertson with enough time for

rehabilitation. After the district court imposed its sentence and defense counsel

objected, the court stated, "I'm not ordering this sentence because I want to be

punitive or to hurt you.” Rather, the district court stated, "What I'm trying to

do here is give you a period of time where you can, once again, get clean and sober

and stay clean and sober and come out after you serve your sentence and stop

using drugs and stay on your meds.” While the district court expressly

referenced the policy statements in Chapter Seven of the Sentencing Guidelines



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and stated that it was imposing a sentence "as punishment and deterrence from

further criminal activity,”7 its other statements on the record evidence that a

"dominant factor” in imposing the sentence was Culbertson's need for

rehabilitation. See Garza, 706 F.3d at 662 (determining that "Garza's

rehabilitative needs were the dominant factor in the court's mind”); cf. Receskey,

699 F.3d at 811 (concluding that the district court's "concern over rehabilitation

may have been an 'additional justification,' but it was not a 'dominant' factor in

the court's analysis”).



In these ways, this case is similar to Broussard, where we concluded that

the district court erred in determining the defendant's sentence by relying on his

need for treatment to address his sexual fantasies involving minors and his

inclinations to engage in such sexual conduct. See Broussard, 669 F.3d at 552.

Notably, the district court addressed all of the 18 U.S.C. § 3553(a) factors, but

it also specifically made statements that Broussard "is sick in the head,” "needs

help badly,” and "is in need of education pertaining to his problems and he needs

medical care and treatment.” Id. at 544-45, 552. We held that the district court



7 We also note that the district court may have relied on "punishment” improperly as

a justification for the sentence in this case. See United States v. Miller, 634 F.3d 841, 843-44

(5th Cir. 2011), cert. denied, 132 S. Ct. 496 (2011) (holding that it is improper for a district

court to rely on, inter alia, the need "to provide just punishment for the offense” in

determining a revocation sentence where the relevant statute, 18 U.S.C. § 3583(e), omits this

consideration). While Culbertson raises this issue in passing in his opening brief, he did not

object to any potential error on this ground before the district court. Under plain-error review,

we conclude that, while the district court plainly erred, this error did not affect Culbertson's

substantial rights. See Broussard, 669 F.3d at 555 (noting that, to demonstrate reversible

plain error, the defendant must show "(1) error (2) that is plain and (3) that affects his

substantial rights” ) (citations omitted). "To be 'plain,' legal error must be 'clear or obvious,

rather than subject to reasonable dispute.'” Id. (citations omitted). "To affect the defendant's

substantial rights, the defendant must demonstrate that the error affected the outcome of the

district court proceedings.” Id. (citations omitted). Here, the error was plain, given our Miller

decision. See Miller, 634 F.3d at 843-44. However, the sentencing court only made passing

reference to the need for "punishment” in sentencing Culbertson. Thus, we conclude that the

court's mere mention of this impermissible factor did not affect Culbertson's substantial rights

because the factor did not impact the district court proceedings.



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committed Tapia error in spite of the district court's consideration of the §

3553(a) factors:



We do not dispute that the district court considered

other permissible factors in explaining its chosen

sentence for Broussard; however, it is also quite

apparent from the transcript of the sentencing that the

district court imposed a sentence—a three hundred

percent increase over the guidelines range—based on

the court's belief that Broussard was "sick in the head”

and in need of treatment.



Broussard, 669 F.3d at 555.



Accordingly, we reject the Government's argument that the district court

here did not lengthen Culbertson's sentence based on his rehabilitative needs

because it also referenced its reasons as "deterrence,” "punishment,” and the

need to prevent Culbertson from being a "threat to society.” Justice Sotomayor's

concurring opinion in Tapia further supports this conclusion: it demonstrates

that the district court, tracking the § 3553(a) statutory factors, provided multiple

reasons for Tapia's sentence, and the Supreme Court still vacated the sentence

because the district court may have relied on the defendant's rehabilitative

needs.8 Tapia, 131 S. Ct. at 2393. Evidently, in both Broussard and Tapia, the

sentencing courts expressly considered the § 3553(a) factors at much greater

length than the sentencing court here, but both we and the Supreme Court

vacated the sentences and remanded for resentencing nonetheless. Again, when

defense counsel specifically asked the district court why it was exceeding

Culbertson's guideline range threefold, the court made its reasoning clear: "I



8 By contrast, Justice Sotomayor, who was joined by Justice Alito, expressed skepticism

over the Court's finding that the district court may have lengthened the defendant's sentence

based on the defendant's rehabilitative needs. Tapia, 131 S. Ct. at 2394. However, she

concluded, "I cannot be certain that [the sentencing judge] did not lengthen Tapia's sentence

to promote rehabilitation in violation of § 3582(a). I therefore agree with the Court's

disposition of this case [vacating the sentence and remanding for resentencing] and join the

Court's opinion in full.” Id. (emphasis added).



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think you need that time to get yourself stabilized.” Accordingly, the district

court's words are the best evidence of why it did what it did, and they

overshadow its passing reference to deterrence, punishment, and the threat

Culbertson posed to society.



We also reject the Government's suggestion that a district court

impermissibly relies on rehabilitative needs only when the court refers to a

specific treatment program as its reason for the length of the sentence. While

several cases, including Tapia, have involved a district court imposing a

sentence of a specific length in part to make the defendant eligible for a certain

program, we do not read Tapia as requiring this element. To the contrary, Tapia

clearly held that a district court "may not impose or lengthen a prison sentence

to enable an offender to complete a treatment program or otherwise to promote

rehabilitation.” Tapia, 131 S. Ct. at 2393 (emphasis added). Thus, it is clear to

us that the Tapia rule contemplates methods that "otherwise . . . promote

rehabilitation” beyond facilitating eligibility for a specific treatment program.

See id.



D. Plain-Error Review



Having concluded that the district court erred, we must determine

whether that error is reversible. We agree with the Government that defense

counsel's objection for "substantive and procedural unreasonableness” before the

district court was ineffective to preserve the error alleged here. Thus, we review

for plain error. Broussard, 669 F.3d at 553.



To demonstrate reversible plain error, Culbertson must show "(1) error

(2) that is plain and (3) that affects his substantial rights.” Id. (citation omitted).



"To be 'plain,' legal error must be 'clear or obvious, rather than subject to

reasonable dispute.'” Id. (citations omitted). "To affect the defendant's

substantial rights, the defendant must demonstrate that the error affected the

outcome of the district court proceedings.” Id. (citations omitted). Finally, under



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the fourth prong of plain-error review, "[w]e will exercise our discretion to

correct plain error if it seriously affected the fairness, integrity, or public

reputation of the judicial proceeding.” Id. (citation omitted). As we already have

determined that the district court erred, we focus our analysis on the second,

third, and fourth prongs.



As to the second prong, we conclude that the error was plain in light of our

recent decision in Garza. See Escalante-Reyes, 689 F.3d at 423 (holding that,

"where the law is unsettled at the time of trial but settled by the time of appeal,

the 'plainness' of the error should be judged by the law at the time of appeal”).



In the sentencing context, the third prong requires that the defendant

demonstrate a "reasonable probability” that, but for the district court's error, he

would have received a lesser sentence. United States v. Dickson, 632 F.3d 186,

191 (5th Cir. 2011) (citation omitted). Here, the error clearly affected

Culbertson's substantial rights, as the district court's emphasis on his

rehabilitative needs affected the outcome of the sentencing. The district court

gave Culbertson a sentence that was three times his guideline range and

repeatedly referred to Culbertson's need for rehabilitation, including after

defense counsel specifically questioned why the sentence exceeded the guideline

range three-fold. These facts are similar to those in Escalante-Reyes, where, in

response to the defense counsel's objection to the length of the sentence, "the

district court mentioned only two things: Escalante–Reyes's quick return to the

United States and that '[h]e has a problem with his anger management. He has

things that need to be addressed.'” Escalante-Reyes, 689 F.3d at 423. Therefore,

Culbertson's need for rehabilitation was "such a central part of the district

court's explanation of [Culbertson's] sentence that 'we cannot confidently say

that the district court would have imposed the same sentence' without it.” Id.

at 424 (citation omitted).



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As to the fourth prong, we recognized in Escalante-Reyes that we respect

the sentencing court's discretion in making sentencing decisions, and "we do not

view the fourth prong as automatic if the other three prongs are met.” Id. at

425. Further, the Supreme Court's recent decision in Henderson v. United States

provides additional guidance for assessing claims of error under plain-error

review. 133 S. Ct. 1121, 1130-31 (2013) (holding that the plainness of plain error

is to be judged by the law at the time of appellate consideration, rather than at

the time of trial). On appeal, the Government had expressed a concern about

an expansive plain-error rule that would permit "too many claims of plain error,”

and the Henderson Court emphasized the inherent "screening criteria” contained

within the plain-error rule which helps to avoid any "'plain error' floodgates.”



See id. at 1130. The Court noted that, when lower courts of appeals apply the

other prongs of plain error–requiring the impairment of substantial rights and

error that seriously affected the fairness, integrity, or public reputation of the

judicial proceedings–the fact that a defendant failed to object "may well count

against” the grant of relief under plain-error review. Id.



With these advisories in mind, we nonetheless conclude that the error in

the instant case warrants reversal. For one, while we conclude that Culbertson's

objection was insufficient to preserve the specific error alleged on appeal, he did

object to a sentence three times higher than his guideline range. Moreover, this

court already held in Escalante-Reyes that the plainness of any error should be

judged by the time of appeal; thus, the Henderson decision only reifies, rather

than supplants, our precedents. See Escalante-Reyes, 689 F.3d at 422-23.



Accordingly, as in Escalante-Reyes, we are not satisfied here that there is other

record evidence showing that Culbertson's sentence is "fair,” or that the

"integrity or public reputation” of the judicial proceeding was protected despite

the district court's erroneous consideration of Culbertson's need for

rehabilitation in determining the length of his sentence. See id. at 425. Based



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on the sentencing record as a whole, we conclude that the district court's

repeated emphasis on Culbertson's need for prison time "to get clean and sober”

and "to get [himself] stabilized” affected the "fairness, integrity, or public

reputation” of the sentencing proceeding. See id. at 425-26. Moreover, unlike

Escalante-Reyes, who received a below-guidelines sentence and we nevertheless

reversed his sentence, here, Culbertson's sentence was three times in excess of

his advisory range. See id. at 425 ("While the district court gave a slightly-below

Guidelines sentence, the circumstances show a probability that the court's mercy

was, as Escalante–Reyes noted, "tempered” by the desire to have him receive

anger management training.”). We therefore conclude that we should exercise

our discretion to recognize this error. See id. at 426; Garza, 706 F.3d at 663

(reversing and remanding for resentencing after determining that the district

court committed plain error under Tapia).



* * *



See: www.ca5.uscourts.gov/opinions%5Cpub%5C11/11-10917-CR0.wpd.pdf

Accordingly, the sentence is VACATED, and this matter is REMANDED

to the district court for resentencing in a manner not inconsistent with this

opinion.

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