UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4344

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDREW LEE GRANT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:15-cr-00071-MHL-RCY-1)

Submitted: November 9, 2021 Decided: November 19, 2021

Before WILKINSON, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Olivia L. Norman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Andrew Lee Grant appeals the nine-month sentence imposed following the

revocation of his supervised release. On appeal, Grant argues that the district court

imposed a plainly unreasonable sentence by improperly considering two impermissible

factors—his rehabilitative needs and the need to provide just punishment—when

fashioning Grant’s sentence. Finding no reversible error, we affirm.

I.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release.” United States v. Patterson,

(4th Cir. 2020). “We

will affirm a revocation sentence if it is within the statutory maximum and is not plainly

unreasonable.” United States v. Slappy,

(4th Cir. 2017) (internal

quotation marks omitted). To determine whether a revocation sentence is plainly

unreasonable, we first determine whether the sentence is procedurally or substantively

unreasonable, evaluating “the same procedural and substantive considerations that guide

our review of original sentences” but taking “a more deferential appellate posture than we

do when reviewing original sentences.” United States v. Padgett,

(4th

Cir. 2015) (alteration and internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable

(a) factors.” United

States v. Coston,

(4th Cir. 2020) (internal quotation marks omitted),

cert. denied,

(2021); see

(e) (listing sentencing factors

2 applicable to revocation proceedings). “A revocation sentence is substantively reasonable

if, in light of the totality of the circumstances, the court states an appropriate basis for

concluding that the defendant should receive the sentence imposed.” Coston,

(internal quotation marks omitted).

In fashioning an appropriate sentence, “the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” United States v. Webb,

(4th Cir. 2013) (internal quotation marks omitted). A district court may

impose an unreasonable sentence by relying on an improper factor when selecting a

defendant’s sentence. See United States v. Fowler,

(4th Cir. 2020).

II.

Grant first asserts that the court impermissibly based his term of imprisonment on

his need for drug treatment. Because Grant did not object in the district court to the court’s

consideration of his rehabilitative needs in determining the length of his prison term, our

review of this issue is for plain error. 1 See United States v. Lemon,

(4th

Cir. 2015) (reviewing unpreserved Tapia challenge to revocation sentence for plain error

because “the issue was not raised at the revocation hearing”); see also Fowler,

Relying on United States v. Lynn,

(4th Cir. 2010), Grant contends that he adequately preserved this challenge by urging the district court to treat his sentence as rehabilitative and requesting only a noncarceral sanction. He argues that the Court’s later opinion in United States v. Hargrove,

(4th Cir. 2010), is not controlling, as it directly conflicts with Lynn. To the contrary, we conclude that Lynn and Hargrove are easily reconcilable and, thus, that Lynn is not controlling here. See McMellon v. United States,

(4th Cir. 2004) (en banc) (discussing “earliest-case-governs rule”). 3 669 (“When a defendant argues for the first time on appeal that a district judge erred by

considering an ‘improper factor’ during sentencing, we review for plain error.” (citing

Hargrove)). To demonstrate plain error, a defendant must show “(1) that the district court

erred; (2) that the error was plain; and (3) that the error affected his substantial rights,

meaning that it affected the outcome of the district court proceedings.” United States v.

Bennett,

(4th Cir. 2012) (alterations and internal quotation marks

omitted). Even where a defendant satisfies these requirements, we will exercise our

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

reputation of judicial proceedings.” Molina-Martinez v. United States,

(2016) (internal quotation marks omitted).

When formulating a sentence,

(a) “precludes sentencing courts

from imposing or lengthening a prison term to promote an offender’s rehabilitation.” Tapia

v. United States,

(2011); see Bennett,

(holding that

Tapia applies to sentencing upon revocation of supervised release). However, a district

court is not prohibited from considering a defendant’s rehabilitative needs or making

treatment recommendations during sentencing, so long as those needs do not influence the

fact or extend the length of the term of imprisonment. See Tapia,

; United

States v. Alston,

(4th Cir. 2013); Bennett,

. For a

Tapia claim to succeed, the sentencing court’s reference to the defendant’s rehabilitative

needs must be “causally related” to the court’s sentencing determination. See Lemon,

(emphasis omitted); see also

(observing that it is “unlikely that a court has

4 committed Tapia error unless it has considered rehabilitation for the specific purpose of

imposing or lengthening a prison sentence”).

We conclude that Grant falls short, on multiple grounds, of establishing plain error

under Tapia. At bottom, “Tapia stands for the proposition that a court cannot impose or

lengthen a sentence to ensure that a defendant can complete a training or rehabilitation

program.” Alston,

. Here, the district court explicitly based its decision to

impose a prison term not on rehabilitative considerations, but on the fact that Grant used

marijuana in prison shortly before his release. This conduct, the court explained, damaged

the court’s trust in Grant and significantly implicated the need to deter him from future

drug use. Grant asserts that the court undermined any deterrent rationale by explicitly

acknowledging the presence of marijuana in prison. However, the court plainly

contemplated that the temptation to use drugs would be far greater upon Grant’s release

from prison.

Nor does the record support the conclusion that the court lengthened Grant’s prison

term based on rehabilitative goals. The court did not tie the prison term to any particular

treatment program or indicate an expectation that Grant would complete a treatment

program during his incarceration. It imposed a term of imprisonment significantly shorter

than that needed to qualify Grant for halfway house placement. It also declined to impose

the statutory maximum prison term to enable Grant to complete a specific treatment

program as a special condition of supervised release. See

(h). In any

event, even assuming, without deciding, that the court’s challenged statements could be

construed as ambiguous in this regard, we conclude that they do not “plainly” violate

5 Tapia. See Lemon,

(finding no plain error under Tapia when court’s

explanation was, at worst, ambiguous as to whether rehabilitation affected length of

sentence); see also United States v. Lester,

(4th Cir. 2021) (explaining

that error is “plain” if “clear or obvious, rather than subject to reasonable dispute” (internal

quotation marks omitted)).

Finally, Grant has not established that any conceivable Tapia error affected his

substantial rights. “In the sentencing context, the third prong of the plain-error standard is

satisfied if there is a non-speculative basis in the record to conclude that the district court

would have imposed a lower sentence upon the defendant but for the error.” United States

v. McLaurin,

(4th Cir. 2014) (internal quotation marks omitted); see

United Sates v. Tidzump,

(10th Cir. 2016) (finding Tapia error affected

substantial rights because “compliance with Tapia would likely have led to a shorter

sentence”). Here, the court’s statements indicate that any consideration of his

rehabilitative needs had the effect of reducing Grant’s term of imprisonment. We therefore

find no reversible error under Tapia.

III.

When imposing a revocation sentence, a district court must consider the statutory

factors under

(a) applicable to revocation sentences through

(e). Webb,

. Absent from the statutory factors enumerated in

§ 3583(e) is § 3553(a)(2)(A), which requires the court to consider the need for the sentence

“to reflect the seriousness of the offense, to promote respect for the law, and to provide just

6 punishment for the offense.”

(a)(2)(A); see

(e); Webb,

.

We previously have recognized that, “although § 3583(e) enumerates the factors a

district court should consider when formulating a revocation sentence, it does not expressly

prohibit a court from referencing other relevant factors omitted from the statute.” Webb,

. 2 Furthermore, “the factors listed in § 3553(a)(2)(A) are intertwined with

the factors courts are expressly authorized to consider under § 3583(e).” Id. Thus, so long

as the district court does not base a revocation sentence predominantly on the

§ 3582(c)(2)(A) factors, “mere reference to such considerations does not render a

revocation sentence procedurally unreasonable when those factors are relevant to, and

considered in conjunction with, the enumerated § 3553(a) factors.” Id. at 642.

Applying Webb, we discern no error in the district court’s explanation. Although

the court referenced just punishment in describing the applicable statutory sentencing

factors, the remainder of its explanation reveals that just punishment was not a dominant

basis for its sentencing decision. The district court’s challenged statements did not express

a principally retributive aim. Instead, they merely emphasized the extent of Grant’s

2 Echoing his arguments regarding the standard of review applicable to his Tapia claim, Grant argues that Webb is not binding authority because it conflicts with prior precedent in Tapia and United States v. Crudup,

(4th Cir. 2006). We readily conclude that Webb is good law and controlling in this case. See Payne v. Taslimi,

(4th Cir. 2021) (discussing nonbinding effect of dictum), petition for cert. docketed, No. 21-617 (U.S. Oct. 27, 2021); McMellon,

. And, insofar as Grant relies on out-of-circuit authority to argue in favor of a different rule, “one panel cannot overrule a decision issued by another panel.” United States v. Simmons,

, 262 n.12 (4th Cir. 2021) (internal quotation marks omitted), petition for cert. docketed, No. 21-6122 (U.S. Oct. 28, 2021). 7 addiction and recognized both his breach of trust and the need for deterrence. As

previously discussed, the court declined to impose the statutory maximum sentence, which

it believed justified by Grant’s conduct, to enable Grant to complete a specific drug

treatment program as a condition of supervised release. Viewed in its full context, nothing

in the court’s explanation supports an impermissible reliance on just punishment.

IV.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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