United States v. Gilliard, No. 11-1088 (2d Cir. 2012)
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Defendant appealed from a judgment following his guilty plea to conspiring to distribute and possess with intent to distribute heroin. On appeal, defendant contended that his above-Guidelines sentence was procedurally unreasonable because the district court impermissibly based the sentence on his rehabilitative needs. The court held that the district court did not impose the prison term to promote defendant's rehabilitative needs and that the court's discussion of rehabilitation during the sentencing proceeding was permissible. The court also concluded that defendant's sentence was procedurally and substantively reasonable. Accordingly, the judgment was affirmed.
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11-1088-cr United States v. Gilliard 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Submitted: February 8, 2012 Decided: February 17, 2012) Docket No. 11-1088-cr UNITED STATES OF AMERICA, Appellee, v. TROY GILLIARD, AKA T ROY, Defendant-Appellant. Before: WESLEY, LOHIER, Circuit Judges, and ROSENTHAL, District Judge.* Appeal from a judgment of the United States District Court for the Southern District of New York (Sullivan, J.), following Defendant s guilty plea to conspiring to distribute and possess with the intent to distribute heroin. The district court sentenced Defendant principally to a term of 96 months imprisonment. Defendant contends that the above-Guidelines sentence was procedurally unreasonable because the district court impermissibly based the sentence on his rehabilitative needs. Defendant also challenges the sentence as substantively unreasonable. We hold that the district court did not impose the prison term to promote * The Honorable Lee H. Rosenthal, of the United States District Court for the Southern District of Texas, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Defendant s rehabilitative needs and that the court s discussion of rehabilitation during the sentencing proceeding was permissible. We conclude that the sentence was neither procedurally nor substantively unreasonable. AFFIRMED. Steven M. Statsinger, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant. Niketh Velamoor, Iris Lan, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. WESLEY, Circuit Judge: Defendant-Appellant Troy Gilliard appeals from a March 23 9, 2011 judgment of the United States District Court for the 24 Southern District of New York (Sullivan, J.), following his 25 guilty plea to conspiring to distribute and possess with the 26 intent to distribute heroin, in violation of 21 U.S.C. 27 §§ 841(b)(1)(C) and 846. 28 Gilliard principally to a term of 96 months imprisonment. 29 Gilliard contends that the above-Guidelines sentence was 30 procedurally unreasonable in light of Tapia v. United 31 States, 131 S. Ct. 2382 (2011), because the district court 32 impermissibly based the sentence, at least in part, on his The district court sentenced 2 1 rehabilitative needs. 2 our review of the record, that the district court did not 3 impose the prison term to promote Gilliard s rehabilitative 4 needs and that the court s discussion of rehabilitation 5 during the sentencing proceeding was permissible. 6 disagree with Gilliard s contention that the sentence was 7 substantively unreasonable. 8 sentence imposed by the district court. 9 We disagree and conclude, based on We also Accordingly, we affirm the In July 2010, Gilliard was arrested after a series of 10 authorized communication intercepts confirmed that he was 11 involved in heroin trafficking. 12 Gilliard pled guilty to conspiring to distribute and possess 13 with the intent to distribute heroin, in violation of 21 14 U.S.C. §§ 841(b)(1)(C) and 846. 15 the parties stipulated that the calculated Sentencing 16 Guidelines range was 57 to 71 months imprisonment. 17 On November 12, 2010, Under the plea agreement, In Gilliard s Presentence Report ( PSR ), the Probation 18 Office made the same calculation. 19 calculation, the PSR set forth Gilliard s troubled past. 20 had New York state convictions for grand larceny and bail 21 jumping, and a federal conviction for money laundering 22 (related to his involvement in distributing prescription 3 In arriving at that He 1 drugs), for which he was sentenced to 100 months 2 imprisonment. 3 convictions for escape, assault, and possession of a 4 controlled substance, each resulting in either a prison 5 sentence or fine. 6 his supervised release on multiple occasions. 7 Gilliard committed the instant offense while on supervised 8 release. 9 sentence of 65 months imprisonment. 10 Gilliard also had additional prior Moreover, Gilliard violated the terms of Most notably, The Probation Office ultimately recommended a Gilliard argued in his sentencing submission that 57 11 months would be sufficient, asserting principally that his 12 involvement in narcotics trafficking stemmed from 13 debilitating medical issues that led him to self-medicate 14 and to sell narcotics. 15 sentence within the advisory Guidelines range of 57 to 71 16 months was appropriate, given that the instant offense 17 represented Gilliard s eighth criminal conviction and second 18 narcotics-related federal conviction. 19 The government responded that a At the sentencing proceeding, the district court also 20 calculated the applicable Guidelines range to be 57 to 71 21 months and confirmed that neither party had any objections 22 to the calculation. In response to defense counsel s 4 1 confirmation that Gilliard was asking for a Guidelines 2 sentence, the district court explained that it could not 3 reconcile Gilliard s health struggles stemming from a car 4 accident and his ensuing efforts to self-medicate with his 5 prior crimes which preceded and continued after the 6 accident. 7 After providing Gilliard an opportunity to address the 8 court, the district court focused on several sentencing 9 factors in turn. With respect to Gilliard s extensive 10 criminal history, the district court took into account the 11 federal conviction for money laundering which related to 12 drug dealing and Gilliard s failed attempts to comply with 13 the terms of supervised release. 14 was skeptical of the connection between Gilliard s efforts 15 to self-medicate and the crime at issue, noting that many 16 people with pain do not resort to selling heroin. 17 to the facts and circumstances of the crime, the district 18 court described the seriousness of the crime of conspiring 19 to sell heroin and suggested that the amount of drugs 20 attributed to Gilliard was relatively small compared to the 21 amount of drugs actually involved. 22 addressed the goal of specific deterrence, stating that it 5 The district court again Turning The district court then 1 sought to impose an appropriate sentence to prevent Gilliard 2 from committing similar crimes in the future. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Finally, the district court addressed Gilliard s own needs while in custody by noting: I think you obviously had a substance abuse problem. You obviously also have medical issues that need to be dealt with. You also have psychiatric issues that need to be dealt with and have been dealt with sort of sporadically over a number of years. But those are important things. And it s important, as [defense counsel] has requested, that you be sentenced in such a way that you are able to address those problems; that you have access to facilities and care that will enable you to deal with these problems. So that s something, obviously, I take very, very seriously, and will, in fashioning my sentence. A 124. Before imposing the sentence, the district court 21 explained that all the arguments made by defense counsel in 22 support of a lower sentence were outweighed by what [the 23 court] consider[ed] to be the high, high likelihood of 24 recidivism and the serious nature of the crime committed and 25 the crimes committed in the past. 26 court concluded that an above-Guidelines sentence was 27 warranted. 28 the district court ultimately decided that an 8-year 29 sentence was appropriate in light of everything [the court A 125. The district Although it had contemplated a 10-year sentence, 6 1 had] talked about. 2 months imprisonment, the district court stated its intent 3 to recommend to the Bureau of Prisons ( BOP ) that Gilliard 4 be placed close to family and in a facility with effective 5 drug treatment programs. 6 A 125-26. After imposing a term of 96 We review a district court s sentence for 7 reasonableness. See, e.g., United States v. Booker, 543 8 U.S. 220, 261-62 (2005). 9 discretion standard, we first consider whether the district Under this deferential abuse-of- 10 court committed procedural error. 11 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal 12 quotation marks omitted). 13 procedurally if it does not consider the § 3553(a) factors, 14 or rests its sentence on a clearly erroneous finding of 15 fact. 16 United States v. Cavera, A district court errs Id. at 190. Gilliard argues that the sentence was procedurally 17 unreasonable because the district court violated 18 U.S.C. 18 § 3582(a) by imposing a term of imprisonment to promote his 19 rehabilitative needs. 20 Gilliard did not raise this argument before the district 21 court, and thus it would normally be subject to plain error 22 review. As a preliminary matter, we note that See United States v. Villafuerte, 502 F.3d 204, 208 7 1 (2d Cir. 2007). 2 the claim is based on an intervening Supreme Court decision, 3 this Circuit has previously applied a modified plain error 4 review, which requires the government to prove that the 5 error was harmless. United States v. Needham, 604 F.3d 673, 6 678 (2d Cir. 2010). Although it is unclear whether this 7 standard continues to apply, see id., we need not decide 8 between the two standards because under either, we conclude 9 that the district court committed no error in light of the 10 11 In cases such as this one, however, where Supreme Court s decision in Tapia. In Tapia, the Supreme Court held that 18 U.S.C. 12 § 3582(a) precludes sentencing courts from imposing or 13 lengthening a prison term to promote an offender s 14 rehabilitation, but allows the court to discuss 15 opportunities for rehabilitation within prison or the 16 benefits of specific treatment or training programs. 17 S. Ct. at 2391-92. 18 § 3582(a), which provides: 19 20 21 22 23 24 25 26 131 The Court relied on the text of 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 [18 U.S.C. § 3553(a)] to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a 8 1 2 3 4 5 6 7 recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2). 18 U.S.C. § 3582(a) (emphasis added). 8 language of the statute, the Court explained, when 9 sentencing an offender to prison, the court shall consider In light of the plain 10 all the purposes of punishment except rehabilitation because 11 imprisonment is not an appropriate means of pursuing that 12 goal. 13 that because § 3582(a) allows a court to make 14 recommendations concerning rehabilitation, the district 15 court did nothing wrong . . . in trying to get [the 16 defendant] into an effective drug treatment program. 17 at 2392. 18 Tapia, 131 S. Ct. at 2389. The Court also reasoned Id. But the Court concluded, based on excerpts from the 19 sentencing transcript, that the district court may have 20 selected the length of the sentence to ensure that the 21 defendant could complete a 500-hour drug treatment program. 22 Id. at 2392-93. 23 that [t]he sentence has to be sufficient to provide needed 24 correctional treatment, and that the defendant should be 25 in long enough to get the 500 Hour Drug Program. Most notably, the district court explained 9 Id. at 1 2385. 2 that the district court did more than what was permissible 3 under § 3582(a).1 4 These statements, according to the Court, suggested Id. at 2393. Gilliard contends that the district court erred in 5 considering Gilliard s own needs while in custody in 6 imposing the sentence. 7 made by the district court to argue that the sentence was 8 unlawfully imposed in light of Tapia. 9 court explained that it was important, as [defense counsel] Gilliard focuses on two statements First, the district 10 has requested, that [Gilliard] be sentenced in such a way 11 that [he is] able to address those [substance abuse, 12 medical, and psychiatric] problems. 13 district court concluded that eight years is the 14 appropriate sentence in light of everything [the judge had] 15 talked about. A 124. Second, the A 125-26. 1 Justice Sotomayor, joined by Justice Alito, concurred to express her skepticism that the district court imposed or lengthened the defendant s sentence to promote rehabilitation. Tapia, 131 S. Ct. at 2393-94 (Sotomayor, J., concurring). She noted that the district court carefully reviewed the sentencing factors set forth in § 3553(a) and offered two reasons for choosing the sentence: the need for drug treatment and deterrence. Id. at 2393. With respect to the latter reason, the district court highlighted the defendant s criminal history and criminal conduct while released on bail. Id. at 2393-94. Notwithstanding her skepticism, Justice Sotomayor concluded that she could not be certain that the district court did not lengthen the defendant s sentence to promote rehabilitation in violation of § 3582(a), and thus agreed with the Court s disposition of the case. Id. at 2394. 10 1 Unlike in Tapia, the record here does not suggest that 2 the length of Gilliard s sentence was based on the district 3 court s consideration of his rehabilitative needs. 4 Instead, the district court permissibly applied the 5 applicable sentencing factors under § 3553(a), addressing 6 (1) Gilliard s extensive criminal history and failures to 7 comply with the terms of his supervised release; (2) the 8 facts and circumstances of Gilliard s drug-related crime; 9 and (3) the goal of deterrence and Gilliard s high 10 11 likelihood of recidivism. The sentencing in Tapia was improper because the 12 district court explicitly stated that the defendant needed a 13 sentence long enough so that she could participate in the 14 500-hour drug treatment program. 15 indication that the district court tied the length of the 16 sentence to any treatment Gilliard would receive. 17 contrary, whenever the district court discussed Gilliard s 18 rehabilitative needs, it did so in the context of 19 recommending to the BOP appropriate treatment programs he 20 should receive while in custody not with regard to whether 21 he should spend more time in prison for treatment purposes. 22 The district court s recommendations including that Gilliard 11 Here, there is no To the 1 have access to facilities and care that would enable him to 2 deal with his problems were well within what the Supreme 3 Court deemed permissible in Tapia. 4 2392. 5 See Tapia 131 S. Ct. at Our conclusion is consistent with our recent 6 application of Tapia, as well as the decisions of several 7 other circuits finding that, notwithstanding discussion of 8 rehabilitation in the record, there was no error where the 9 sentence length was based on permissible considerations, 10 such as criminal history, deterrence, and public protection. 11 See United States v. Magner, No. 11-0751-cr, 2012 WL 206013, 12 at *2 (2d Cir. Jan. 25, 2012); see also United States v. 13 Tolbert, ---F.3d----, 2012 WL 413806, at *5 (6th Cir. 2012); 14 United States v. Blackmon, 662 F.3d 981, 987 (8th Cir. 15 2011); United States v. Cardenas-Mireles, No. 11-2138, 2011 16 WL 6394280, at *3 (10th Cir. Dec. 21, 2011); United States 17 v. Gregg, No. 11-12144, 2011 WL 5248165, at *1 (11th Cir. 18 Nov. 3, 2011). 19 To be sure, our sister circuits in several other recent 20 cases have found error where the record revealed that the 21 defendant s rehabilitative needs influenced the length of 22 imprisonment. In United States v. Cordery, 656 F.3d 1103 12 1 (10th Cir. 2011), the Tenth Circuit found error in the 2 sentence when the district court commented that, after 3 taking into account the time that the defendant had already 4 served, the defendant need[ed] a sentence of at least 56 5 months to be able to successfully complete that [treatment] 6 program together with mental health counseling. 7 1105. 8 2011), the Fourth Circuit held that the district court 9 impermissibly considered the defendant s need for Id. at In United States v. Himes, 439 F. App x 272 (4th Cir. 10 rehabilitation when the district court noted that an 11 increased sentence of 34 months would provide enough time 12 for [the defendant] to be admitted to the [500-hour 13 residential drug] program and complete that program. 14 at 274-75. 15 260 (7th Cir. 2011), the Seventh Circuit held that the 16 defendant was entitled to resentencing after the district 17 court explained that [a] stay in the Bureau of Prisons of a 18 significant length [was] necessary in order for [the 19 defendant] to get the Bureau of Prisons inpatient treatment 20 program. 21 22 Id. Finally, in United States v. Kubeczko, 660 F.3d Id. at 261. A common theme exists between Tapia and those cases in which our sister circuits found error in all four cases, the 13 1 sentencing judge explicitly tied the need to impose a 2 sentence of particular length to the defendant s ability to 3 participate in a drug treatment program. 4 missing here. 5 sentence was based on, among other permissible reasons, his 6 extensive criminal history. 7 Gilliard s rehabilitation only in the context of making its 8 recommendations to the BOP, and in so doing, did no more 9 than what was deemed permissible in Tapia. 10 11 That connection is Rather, the record indicates that Gilliard s The district court discussed Accordingly, Gilliard s claim of procedural unreasonableness fails. Gilliard also challenges the substantive 12 reasonableness of his sentence. In reviewing that claim, we 13 take into account the totality of the circumstances, giving 14 due deference to the sentencing judge s exercise of 15 discretion, and bearing in mind the institutional advantages 16 of district courts. 17 not substitute our own judgment for the district court s on 18 the question of what is sufficient to meet the § 3553(a) 19 considerations in any particular case. 20 Rather, we will set aside a district court s substantive 21 determination only in exceptional cases where the trial 22 court s decision cannot be located within the range of Cavera, 550 F.3d at 190. 14 [W]e will Id. at 189. 1 permissible decisions. 2 Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). 3 Id. (quoting United States v. Gilliard contends that his sentence was substantively 4 unreasonable because the district court gave too much weight 5 to his criminal history and the offense conduct itself. 6 Gilliard also argues that the district court undervalued his 7 poor mental and physical health and the relationship between 8 his substance abuse problem and his criminal conduct. 9 disagree. 10 We The district court properly considered, and was well 11 within its discretion to give great weight to, (1) 12 Gilliard s extensive criminal history and failed attempts to 13 comply with terms of his supervised release; (2) the facts 14 and circumstances of his crime; and (3) his high likelihood 15 of recidivism and the need to deter him from committing 16 future crimes. 17 considered Gilliard s personal circumstances and adequately 18 explained why it could not reconcile them with his prior 19 crimes and the instant offense. 20 guess the weight (or lack thereof) that the district court 21 accorded to these factors. 22 443 F.3d 19, 34 (2d Cir. 2006); see also Cavera, 550 F.3d at Moreover, the district court thoroughly We find no reason to second See United States v. Fernandez, 15 1 191. 2 Gilliard s personal circumstances were outweighed by the 3 high likelihood of recidivism and the serious nature of his 4 crimes. 5 The district court did not err in determining that Taking into account the totality of the circumstances, 6 the 96-month term of imprisonment was not shockingly high 7 . . . or otherwise unsupportable as a matter of law. 8 United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 9 Thus, the sentence was substantively reasonable. 10 11 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. 16
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