NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 22-1391 _______________________

UNITED STATES OF AMERICA

v.

TYREE STEELE, Appellant _______________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-20-cr-00121-001 District Judge: The Honorable Michael M. Baylson __________________________

Submitted under Third Circuit L.A.R. 34.1(a) February 10, 2023

Before: CHAGARES, Chief Judge, SCIRICA, and SMITH, Circuit Judges

(Filed March 23, 2023)

__________________________

OPINION * __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge.

In February 2020, Appellant Tyree Steele walked into a Citizens Bank wearing a

ski mask. He then pulled out his wallet and handed the teller a note. When the teller told

him she could not read the note, Steele demanded: “empty your top drawer, give me all

your money.” He also warned her not to push any emergency buttons. After the teller

handed over $5,043, Steele fled, accidentally leaving his wallet behind.

At the time of the robbery, Steele was on supervised release for a federal

conviction for a series of eight bank robberies he had committed in Pennsylvania and

New Jersey in 2010. When he reported to probation for a meeting five days after the

Citizens Bank robbery, Steele was arrested. Steele pled guilty to one count of bank

robbery in violation of

(a).

For purposes of sentencing, the government and the Probation Office

recommended that the District Court apply the career offender enhancement under U.S.

Sentencing Guidelines § 4B1.1 because Steele had two prior robbery convictions that

constituted “crimes of violence.” Steele argued, as he does on appeal, that his

Pennsylvania robbery conviction under

(a)(1)(ii) was not a

crime of violence, thereby rendering him ineligible for the career offender enhancement.

The District Court imposed a 120-month sentence, supported by two alternative

rulings. First, the District Court stated that if the enhancement applied, it would grant a

downward variance from the Guidelines range of 151–188 months to 120 months.

Alternatively, if the enhancement did not apply, the District Court stated that it would

impose an upward variance from the Guidelines range of 46–57 months to 120 months. 2 Steele timely appealed his sentence and raises two issues. 1 First, he argues that the

District Court imposed a 120-month sentence for the improper purpose of rehabilitation

in violation of

(a) and Tapia v. United States,

(2011).

Second, Steele argues that his Pennsylvania state court conviction for robbery is not a

“crime of violence” under the Sentencing Guidelines and thus does not trigger the career

offender enhancement.

I.

Steele did not raise any Tapia-based objection before the District Court. We

therefore review that issue for plain error. United States v. Couch,

(3d

Cir. 2002). On plain error review, the appellant must show an (1) error, (2) that is plain or

obvious, and (3) that affects the defendant’s substantial rights. United States v.

Olano,

(1993). Even if plain error is shown, a court should exercise its

discretion to correct the forfeited error only if it “seriously affects the fairness, integrity

or public reputation of judicial proceedings.”

(quoting United States v. Young,

(1985)) (cleaned up).

Under

(a), a sentencing court may not consider the defendant’s

rehabilitation when imposing or lengthening a sentence. Tapia,

. But

§ 3582(a) does not prohibit judges “from mentioning rehabilitation during the sentencing

hearing,” and the sentencing court may discuss “the opportunities for rehabilitation

1The District Court had jurisdiction under

. We have jurisdiction under

and

(a). 3 within prison or the benefits of specific treatment or training programs.” United States v.

Zabielski,

(3d Cir. 2013) (quoting Tapia,

).

The District Court did not plainly err in citing Steele’s need to “get rid of drugs”

and to “learn . . . to follow rules and regulations” when explaining Steele’s sentence.

JA 68–69. The District Court no doubt was expressing hope that prison time would help

Steele to change his behavior. Section 3582(a) does not bar a sentencing court from

expressing such a hope or from mentioning rehabilitation. See Zabielski,

.

Moreover, the District Court explained that 120 months was an appropriate sentence

because Steele’s criminal history revealed serious recidivism, 2 disregard for the law, and

a sense of “entitle[ment] to money that doesn’t belong to [him].” JA 67–68. The District

Court also emphasized that bank robbery “is a serious crime” and that Steele “put the

bank teller in a sense of fear.”

Considering that the District Court identified these non-

rehabilitative factors, our review of the portion of the transcript discussing the benefits of

imprisonment does not plainly show that rehabilitation was considered as a factor in the

determination of Steele’s sentence. Rather, the District Court expressed a hope that the

conditions of imprisonment would lead Steele toward a lawful, drug-free life.

2 We do not recount Steele’s criminal history in detail because we write only for the parties. We nevertheless note that Steele was convicted in federal court for committing eight bank robberies located in Pennsylvania and New Jersey and was also convicted in Pennsylvania state court for attempting to rob a convenience store at gunpoint. 4 II.

Turning to the second issue, we need not decide whether Pennsylvania’s first-

degree robbery statute is a “crime of violence” under the Guidelines because any error

would be harmless. 3 The District Court imposed a 120-month sentence under two

alternative rationales. If Steele’s Pennsylvania robbery conviction is a “crime of

violence” and the career offender enhancement were to apply, the District Court

explained that it would vary downward in imposing a sentence. Alternatively, if the

career offender enhancement were not to apply, the District Court explained that it would

still impose a 120-month sentence by imposing an upward variance.

We previously have recognized harmless error in nearly identical circumstances in

United States v. Carter,

(3d Cir. 2013). There, the Guidelines range also

turned on the application of the career offender enhancement, and the district court

imposed the same sentence under two alternative rulings.

. We held that the

error “was harmless because the District Court explained that it would have ordered the

same sentence even without finding a ‘crime of violence.’”

. But we also noted

that a sentencing error is not harmless “where a district court simply states that it would

have imposed the same sentence without pointing to the alternative Guidelines range and

explaining its decision to arrive at the specific sentence.”

3A closely related issue—whether Pennsylvania’s first-degree robbery statute is a “violent felony” under the Armed Criminal Career Act—is pending before this Court in United States v. Harris, No. 17-1861. 5 Here, the District Court identified the two Guidelines ranges that could apply and

explained why it would arrive at a 120-month sentence under either range. To justify an

upward variance, the District Court emphasized the seriousness of Steele’s actions and

the need for deterrence considering Steele’s history of serious recidivism. These reasons

adequately justify an upward variance under

(a). Thus, the District

Court’s alternative rationale for imposing a 120-month sentence without the career

offender enhancement was not erroneous. We therefore conclude that any error in

applying the career offender enhancement was harmless.

III.

For the reasons stated, we will affirm the judgment of the District Court.

6