United States v. Joseph Krul

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0297p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ No. 13-2451

v. │

>

│

JOSEPH MICHAEL KRUL, │

Defendant-Appellant. ┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:13-cr-00028-1—Robert Holmes Bell, District Judge.

Argued: August 7, 2014

Decided and Filed: December 18, 2014

Before: ROGERS and GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge.*

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,

Michigan, for Appellant. Sally J. Berens, UNITED STATES ATTORNEY’S OFFICE, Grand

Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC

DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. Phillip J. Green, UNITED

STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

ROGERS, J., delivered the opinion of the court, in which VAN TATENHOVE, D.J.,

joined, and GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 7–16), delivered a separate

opinion concurring in the judgment.

*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 13-2451 United States v. Krul Page 2

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OPINION

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ROGERS, Circuit Judge. The defendant, Joseph Michael Krul, appeals his sentence on

the ground that the sentencing judge based the length of his sentence on rehabilitative goals,

contrary to the holding of Tapia v. United States, 131 S. Ct. 2382, 2392 (2011). That case,

however, requires reversal only where there is an identifiable basis for concluding that the

district court based the length of the sentence of incarceration in part on rehabilitation. In this

case there is no such basis.

In the summer of 2009, the then-felon Krul took a 9mm Glock handgun out of his

friend’s basement. Krul provided the firearm as collateral for a drug deal, but the dealer refused

to return it to Krul after the deal was completed. A chain of transfers eventually brought the

weapon into the hands of Roderic Dantzler, who used the weapon on a murderous spree. There

is no indication that Krul could have anticipated that Dantzler would ever come into possession

of the gun, or that the gun would be used to cause such havoc. Those involved in transferring the

firearm were targeted for prosecution. The one to whom Krul initially transferred the gun

cooperated with law enforcement authorities, and eventually Krul and the one that transferred the

weapon to Dantzler were indicted.

Krul pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). At sentencing, both the Government and Krul’s counsel agreed that the proper

Sentencing Guidelines range, based on the offense of conviction and Krul’s prior criminal

history, was 51 to 63 months. The court sentenced Krul to 63 months of imprisonment, to be

followed by three years of supervised release with various strict conditions.

Krul now appeals, arguing that some of the court’s statements during sentencing imply

that the court impermissibly factored rehabilitation into the length of his prison sentence.

Although rehabilitation is a main theme of the sentencing hearing, the transcript does not reveal

the particular improper purpose that Krul claims it does. Rather, the record demonstrates that the

No. 13-2451 United States v. Krul Page 3

district court carefully considered rehabilitation for other, permissible purposes and that Krul

invited the discussion of rehabilitation by emphasizing rehabilitation during his own statement.

During the hearing, the sentencing court discussed its reasons for imposing the sentence.

The court began by stating that “what really troubles [it] the most in this matter” was Krul’s

extensive criminal history, starting at the age of fourteen when he was charged with unarmed

robbery, passing through early adolescence with four drunk-driving convictions, numerous

assaults (including domestic), and other assorted charges, and finally arriving at the present

federal felony. After reciting the litany of Krul’s prior criminal offenses—over thirty—the court

discussed Krul’s mental health history, including a diagnosis of Oppositional Defiant Disorder

and a history of substance abuse. At this point, the district court made the following statements,

which contain everything relied upon by Krul to assert a Tapia violation:

So that brings us to today, and that brings us to the question of the sentence,

looking at the nature and circumstances of this offense in light of the history I

have just recited in conclusive form. I think this was a serious offense. It showed

part of a continuation of no respect for laws, no respect for orders that we all in a

community and a society have to follow. And I’m sure you have an explanation

for every one of them. Someone ticked you off, someone disrespected you, things

weren’t the way they should have been. But I have to afford — this sentence has

to afford an adequate deterrence to criminal conduct and certainly has to protect

the public and provide you with some educational, correctional, and medical

treatment at the same time. It’s a tough balance to follow in this matter.

I think it requires that you be taken out of the community for a while and you be

given some programmatic opportunities, some of which you’ve already started.

Forgotten Man Ministries and other such things you’ve already started as a way to

come to terms with who you are and how you’re going to behave for the rest of

your life.

You understand what I’m looking at as a 31-year-old is I’m looking at the rest of

your life. Where are you going to be when you’re 41? Where are you going to be

when you’re 51? Where are you going to be when you’re 61? That’s what

concerns me. I see where you’ve been when you were 21 and I now see where

you are at 31, and I don’t like the direction we’re heading. We’ve got to stop.

We’ve got to look at this a little differently.

The sentence of this Court will be 63 months in the custody of the Federal Bureau

of Prisons. That’s the high end of the sentence guideline range. I thought of

going higher. I think there’s plenty of reason for going higher, but that would

enmesh us in an appeal and a bunch of other things. But I think 61 months (sic)

should be able to give the Federal Bureau of Prisons an opportunity to provide

you with education, educational opportunity, and will give you a mental health

No. 13-2451 United States v. Krul Page 4

evaluation and placement and presumably some medication that will deal with

your emotions, that will deal with your ability to interact sociably with other

people, will give you the ability to hold your anger in check, and will give you an

understanding that laws must be obeyed.

The first two paragraphs clearly do not raise a Tapia concern, because they address the

overall sentence, and not just incarceration. When the district court stated that Krul’s “sentence

has to afford an adequate deterrence to criminal conduct and certainly has to protect the public

and provide you with some educational, correctional, and medical treatment at the same time,”

the court was discussing the overall sentence, which includes both the period of incarceration

and the conditions of supervised release. Supervised release is part of a sentence. Indeed, for

Krul’s three years of supervised release, the court imposed many behavioral and psychological

treatment regimens, including a mental health treatment program, a prohibition on alcohol and

drugs, an injunction against associating with other ex-felons, and mandatory participation in

cognitive behavioral therapy. These conditions of supervised release, designed to habituate Krul

away from his prior drug-motivated criminal tendencies, reflect valid and reasonable

rehabilitative goals.

Tapia is based on a sentence in the statute—the “recognizing” clause—that limits only

the length of imprisonment, not other parts of the sentence. Section 3582(a) states:

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). This language by its very terms constrains only “a

sentencing court’s decision both to impose and to lengthen a prison term.” Tapia, 131 S. Ct. at

2389–90. Section 3553(a)(2)(D)’s requirement that the sentencing judge consider “the need for

the sentence imposed . . . to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment” continues to apply to the judge’s

imposition of terms of punishment other than imprisonment, such as supervised release and

probation. See Tapia, 131 S. Ct. at 2387–88.

No. 13-2451 United States v. Krul Page 5

It is, therefore, perfectly consistent with the Tapia holding for the district court to rely on

providing rehabilitation in support of an overall sentence that includes supervision as well as

imprisonment. Indeed, even with respect to incarceration, the Tapia Court confirmed the basic

principle that “a court properly may address a person who is about to begin a prison term about

the[] important matters” of rehabilitation and the opportunity for specific treatment programs in

prison. Tapia, 131 S. Ct. at 2392.

Thus, it is only the final paragraph of the above quote that even arguably runs afoul of

Tapia. But the district court nowhere in that paragraph suggested that the imprisonment was

lengthened to permit participation in a rehabilitative program. The context shows that the court

was at pains to show why the term was shorter than what the government requested. In doing so,

the court wanted to assure the defendant that the types of programs he desired were still

available. Indeed, Krul invited this commentary on rehabilitation. Earlier during the hearing,

Krul professed, “I will use this time for rehabilitation to better myself and my role in society.”

He then assured the court that he would “enroll in any class, course or program . . . offered” to

him. After this promise, the court’s discussion of treatment options appears as assurance that

such programs will be available, not as a basis for lengthening incarceration.1 Moreover, the law

of this circuit, of which the court was doubtless aware, prohibited the extension of incarceration

terms for rehabilitative purposes. See, e.g., United States v. Walker, 649 F.3d 511, 513–14 (6th

Cir. 2011).

Tapia was much different. In Tapia, the district court pegged the length of the sentence

to accommodate a particular drug treatment program within the prison system, stating explicitly:

“[O]ne of the factors that affects [the sentence] is the need to provide treatment. In other words,

so she is in long enough to get the 500 Hour Drug Program, number one.” 131 S. Ct. at 2385.

The Supreme Court construed this statement as “indicat[ing] that Tapia should serve a prison

term long enough to qualify for and complete that program.” See id. Moreover, the Tapia Court

1

Because rehabilitative programs, such as the Residential Drug and Alcohol Program that was

central to Tapia, are located only at certain prisons, district court judges frequently provide treatment

program recommendations, along with a detailed discussion of why a defendant should be placed in such

a program, to help ensure that the Bureau of Prisons places the defendant in a better suited facility. The

Tapia Court commended the practice of a district court’s “trying to get [the defendant] into an effective

drug treatment program.” 131 S. Ct. at 2392.

No. 13-2451 United States v. Krul Page 6

was addressing a district court sentencing in the Ninth Circuit, which at that time clearly

permitted the ability to complete rehabilitative programs as a factor in determining the length of

imprisonment. See United States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994); see also Tapia, 131

S. Ct. at 2394 (Sotomayor, J., concurring).

It is true that Tapia contains language that might be read expansively to require a

resentencing whenever there is a “possibility” that permitting rehabilitation extended the length

of the sentence of imprisonment. The Court there reversed because “the sentencing transcript

suggests the possibility that Tapia’s sentence was based on her rehabilitative needs.” Tapia, 131

S. Ct. at 2392 (emphasis added). But this cannot mean that reversal is required whenever it is

merely possible that rehabilitation drove the length of imprisonment. Such an expansive reading

would effectively require district courts to disavow explicitly such a possibility to avoid reversal.

The Supreme Court did not require this. Instead, the Court went on to say that

the [sentencing] court may have done more— . . . it may have selected the length

of the sentence to ensure that Tapia could complete the 500 Hour Drug Program.

“The sentence has to be sufficient,” the court explained, “to provide needed

correctional treatment, and here I think the needed correctional treatment is the

500 Hour Drug Program.” . . . These statements suggest that the 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. As we have held,

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

complete a treatment program or otherwise to promote rehabilitation.

Id. at 2392–93 (emphasis added).

Here, the district court’s statement that a certain term of imprisonment will provide an

opportunity to rehabilitate Krul does not indicate that it did what the lower court in Tapia

impermissibly did, namely “suggest that the court may have calculated the length of Tapia’s

sentence to ensure that she receive certain rehabilitative services.” See id. at 2393.

The judgment of the district court is affirmed.

No. 13-2451 United States v. Krul Page 7

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CONCURRENCE IN THE JUDGMENT

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GRIFFIN, Circuit Judge, concurring in the judgment. In Tapia v. United States, 131 S.

Ct. 2382 (2011), the Supreme Court held that 18 U.S.C. § 3582(a) prohibits the federal courts

from “impos[ing]” any portion of a prison sentence or “lengthen[ing]” it in order to rehabilitate a

criminal defendant. Id. at 2393. The majority opinion limits Tapia to the latter portion of its

holding—that Tapia prohibits district courts only from “identifiabl[y]” lengthening a prison

sentence for rehabilitative purposes. I respectfully disagree. In my view, the majority opinion

confuses the question of whether there was a Tapia error with the question of whether the error

was prejudicial and therefore remediable upon appellate review. In so doing, it minimizes the

shift in penological attitudes enshrined in § 3582(a) and recognized in Tapia as binding on the

federal courts. Although I ultimately agree with the majority to affirm Krul’s within-Guidelines

sentence, the district court should be affirmed not because it did not err, but because Krul has

failed to demonstrate that the district court’s error affected his substantial rights. Therefore, I

concur in the judgment only.

I.

Under the majority’s approach, a federal prison sentence violates Tapia only if an

appellate court can isolate a discrete portion of the sentence as having been imposed solely for

impermissible rehabilitative reasons, regardless of whether the district court’s sentencing

colloquy reveals that rehabilitation was one of the factors that shaped its determination of

whether the defendant should be sent to prison and how long he should stay there. Admittedly,

this approach has the potential merit of being relatively simple to administer on appeal. But it

has the distinct disadvantage of being incompatible with what Tapia commands.

18 U.S.C. § 3553(a)(2)(D) generally advises sentencing courts that rehabilitation is one

possible consideration that may factor into its determination of an appropriate sentence. But the

statute that specifically governs which considerations may guide a district court when it imposes

a sentence of imprisonment (as opposed to supervised release, probation, or fines) provides that a

district court “shall consider the factors set forth in section 3553(a) to the extent that they are

No. 13-2451 United States v. Krul Page 8

applicable, recognizing that imprisonment is not an appropriate means of promoting correction

and rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). In Tapia, the Supreme Court

resolved this potentially conflicting statutory language by holding that § 3582(a) precludes a

district court from using a prison sentence to promote a defendant’s rehabilitation: “‘[W]hen

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.’”

United States v. Deen, 706 F.3d 760, 765 (6th Cir. 2013) (quoting Tapia, 131 S. Ct. at 2389);

United States v. Walker, 649 F.3d 511, 513 (6th Cir. 2011).

Tapia directs that no portion of a prison sentence may be imposed for the purpose of

rehabilitating the defendant, regardless of whether the prison sentence also serves other,

legitimate penological ends. As the Court put it, § 3582(a) contains a succinct command to

district courts: “Do not think about prison as a way to rehabilitate an offender.” Tapia, 131 S.

Ct. at 2390. A district court therefore commits a Tapia error where it “considers rehabilitation

when crafting a sentence of imprisonment.” United States v. Vandergrift, 754 F.3d 1303, 1310

(11th Cir. 2014); see also United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012) (“Tapia

. . . drew a line between the consideration of a defendant’s rehabilitative needs when determining

the fact or length of imprisonment—which is improper—and the consideration of the same when

recommending treatment options or the location of confinement—which is altogether sound.”).

This is not to say, however, that a sentencing court errs every time that it mentions a

defendant’s ability to be rehabilitated. Tapia itself recognized that it may be appropriate for a

sentencing court to observe that a prison sentence will have the beneficial side-effect of affording

an opportunity for a defendant to rehabilitate, so long as the court does not send the defendant to

prison or keep him there for the purpose of giving the defendant the opportunity to do so. See

id., 131 S. Ct. at 2392; United States v. Blackmon, 662 F.3d 981, 986 (8th Cir. 2011). Thus, the

“dividing line” separating impermissible from permissible conduct is “whether a sentencing

court’s reference to rehabilitative needs was causally related to the length of the sentence” or was

instead simply an observation about one of several “consequences and opportunities” attendant

upon the fact that the defendant would be going to prison. United States v. Del Valle-Rodriguez,

761 F.3d 171, 174 (1st Cir. 2014). The district court may hope that a defendant uses his time in

prison wisely in order to better integrate with society upon his release, but it cannot send him to

No. 13-2451 United States v. Krul Page 9

prison or prolong his stay there for the purpose of making it happen. See United States v. Grant,

664 F.3d 276, 282 (9th Cir. 2011) (“When a judge imposes prison, he may wisely believe that it

will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.”).

Thus, the majority opinion is incorrect that Tapia is violated only if an appellate court can

identify a discrete portion of the sentence that has been tacked on for rehabilitative purposes.

Tapia’s dictate that a district court may not consider rehabilitation either when “impos[ing]” any

portion of a prison sentence or when “lengthen[ing]” it is comprehensive: it means that

rehabilitative considerations may not factor into a prison sentence at all. See Tapia, 131 S. Ct. at

2390 (“Do not think about prison as a way to rehabilitate an offender.”). Under the majority’s

contrary approach, a district court is permitted to impose a sentence for rehabilitative purposes so

long as there are also other legitimate purposes driving the sentence. That may be perfectly

acceptable as a matter of policy, but it is incorrect as a matter of law. Congress has chosen to

preclude federal courts from considering rehabilitation when fashioning prison sentences, and

Tapia cannot be read as permitting district courts to flout its direction.

After all, although it is possible to draw quite a fine line between Tapia-compliant and

Tapia-violative practices, Tapia’s insistence that rehabilitation be taken off the table when

determining whether or how long to send a defendant to prison is not a mere technicality.

Instead, as Tapia recognized, § 3582(a)’s prohibition of using incarceration for rehabilitative

ends represents a fundamental shift in penological theory. Congress recalibrated its approach to

rehabilitation in part because of the unfairly disparate effects of using indeterminate prison

sentences as a behavioral tool to keep an offender in prison, see Tapia, 131 S. Ct. at 2387; in part

due to a growing consensus that efforts at rehabilitation had largely failed, see id.; and in part out

of a desire to punish offenders for what they had done rather than for who they were. Mistretta

v. United States, 488 U.S. 361, 363 (1989). By enacting the current version of § 3582(a),

Congress made the conscious decision to alter federal sentencing practices, choosing to allow

only the imposition of a set term of imprisonment based on the offender’s deeds instead of

consigning the offender’s release date to judicial officers with “very broad discretion” to

determine whether the offender was in their view worthy of reentry into society. Id. A federal

court may send a defendant to prison and keep him there in order to punish, deter, or incapacitate

No. 13-2451 United States v. Krul Page 10

him, see 18 U.S.C. § 3553(a)(2)(A)–(C), but it cannot use the blunt instrument of institutional

incarceration to try to mold him into a socially acceptable citizen.

Thus, although the majority downplays the importance of Tapia and narrowly reads the

sentencing transcript in this case in an attempt to avoid its implications, the statutory prohibition

against sending a federal defendant to prison in order for him to become a “better” person is not

simply a matter of semantics. It involves questions foundational to the federal penological

enterprise—issues that have been debated literally for centuries. See id. at 365–66; Jessica M.

Eaglin, Against Neorehabilitation, 66 SMU L. Rev. 189, 214–18 (2013) (discussing some

potentially disparate effects of rehabilitative emphases); Edward L. Rubin, The Inevitability of

Rehabilitation, 19 Law & Ineq. 343, 367–76 (2001) (noting disputes over rehabilitation theory);

Immanuel Kant, The Metaphysics of Morals 105 (Mary Gregor trans., Cambridge Univ. Press

1996) (“Punishment by a court . . . can never be inflicted merely as a means to promote some

other good for the criminal himself or for civil society. It must always be inflicted upon him

only because he has committed a crime. For a human being can never be treated merely as a

means . . . . He must previously have been found punishable before any thought can be given to

drawing from his punishment something of use for himself or his fellow citizens.”) (emphases

deleted).

II.

In the present case, the district court began the relevant discussion by observing, “So that

brings us to today, and that brings us to the question of the sentence . . . .” The district court

explained that “this sentence” needed to both deter Krul from future misconduct “and provide

you with some educational, correctional, and medical treatment at the same time.” According to

the district court, the appropriate sentence “requires that you be taken out of the community for a

while and you be given some programmatic opportunities . . . .” After explaining, “I don’t like

the direction” that Krul’s recidivist path was taking him, the district court announced that “[t]he

sentence of this Court will be 63 months in the custody of the Federal Bureau of Prisons,”

observing that “6[3] months should be able to give the Federal Bureau of Prisons an opportunity”

to provide Krul with rehabilitative programs “that will deal with your ability to interact sociably

No. 13-2451 United States v. Krul Page 11

with other people, will give you the ability to hold your anger in check, and will give you an

understanding that laws must be obeyed.”

The import of the district court’s statements is obvious: the district court believed that

the appropriate term of incarceration needed to provide Krul with rehabilitative programs “at

the same time” that it would function to deter him from wrongful conduct and concluded that a

63-month prison term was long enough to give the federal prison system an opportunity to do so.

Because the transcript reflects that the district court considered rehabilitative goals when

fashioning Krul’s prison sentence, its conduct fell afoul of Tapia. See Walker, 649 F.3d at 513

(although Tapia does not preclude a district court from observing that the length of the sentence

that it has imposed for other (legitimate) reasons may present an opportunity for rehabilitation, it

precludes a district court from using rehabilitation as a factor when determining how lengthy of a

sentence to impose in the first place).

The majority, however, interprets the district court’s initial use of the word “sentence” as

referring not only to the chosen period of incarceration but to the “overall sentence,” including

the subsequent period of supervised release—making the entire discussion Tapia-compliant.

This reading of the transcript does not withstand principled scrutiny. The district court itself

explained that “[t]he sentence of this Court will be 63 months” in prison. At that point,

obviously, the district court used the term “the sentence” to refer to the contemplated term of

incarceration, not to both the prison term and the following term of supervised release. It strains

credulity to assert that the district court used the same term—“the sentence”—a mere two-and-a-

half paragraphs (or roughly sixty seconds) earlier to mean something entirely different. The

majority’s position is that two nearly contemporaneous uses of the identical term “clearly” have

different meanings, but the far less strained interpretation is that the district court used the same

word twice to mean the same thing.

The district court’s post-prison-sentence discussion of supervised release is also

significant. It is difficult to conclude that the district court was speaking of supervised release

when it explained to Krul that his “sentence” required that “you be taken out of the community

for a while and you be given some programmatic opportunities.” A person on supervised

release, obviously, is in the community, not out of it. And, as examples of the “programmatic

No. 13-2451 United States v. Krul Page 12

opportunities” that the district court had in mind, the district court identified some specific

rehabilitation programs that Krul had already started while in prison. Which makes sense: the

district court had just indicated that Krul needed to receive rehabilitative programming “at the

same time” that he was serving the portion of the sentence that would function to deter future

wrongful conduct—i.e., the term of incarceration. In short, every indication suggests that the

district court fashioned Krul’s prison sentence, not just his supervised release, with rehabilitation

in mind. Indeed, as is typical in federal sentencing practice, the district court did not even

mention supervised release until after it had finished determining the requisite term of

incarceration.

Regardless of whether we disagree with Congress’s sentencing policy as expressed in

§ 3582(a), it is our duty to fairly enforce the law as written. After doing so, I conclude that at

sentencing the district court violated § 3582(a) as construed by Tapia.

III.

Nevertheless, I agree with my colleagues to affirm Krul’s sentence. After all, the

question whether there was an error at sentencing is different than whether defendant was

prejudiced by the error. In my view, the disposition of this case depends upon whether Krul can

demonstrate that the district court’s error affected his substantial rights.

Much of this portion of the analysis is controlled by the standard of review. As Krul

observes, this court has previously treated Tapia claims as a substantive reasonableness issue that

garners abuse-of-discretion review. See, e.g., Deen, 706 F.3d at 762. But the case upon which

Deen relied for the proposition that “[b]asing a sentence on impermissible factors is an example

of substantive reasonableness” is United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005),

which predated the Supreme Court’s subsequent elucidation in Gall v. United States, 552 U.S. 38

(2007), of the proper standards under which to review a federal sentence. See United States v.

Herrera-Zuniga, 571 F.3d 568, 579–80 (6th Cir. 2009) (observing that Gall undercuts the

language cited from Webb); United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)

(explaining sentencing review after Gall).

Gall clarified that procedural reasonableness review applies to the process by which the

district court arrives at its chosen sentence, whereas substantive reasonableness review requires a

No. 13-2451 United States v. Krul Page 13

bird’s-eye assessment of the reasonableness of the sentence’s length, based on “the totality of the

circumstances.” 552 U.S. at 51. Gall, in fact, identifies “failing to consider the § 3553(a)

factors” as an example of procedural—not substantive—unreasonableness, and it seems apparent

that an opposite error of exactly the same kind—namely, improperly considering an extra

§ 3553(a) factor (i.e., rehabilitation)—is likewise an error that implicates a sentence’s

procedural, rather than substantive, reasonableness. Id. This court suggested as much in United

States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc), where we noted that the defendant’s

challenge to “the reasonableness of the length of his sentence” was a substantive-reasonableness

challenge, whereas a challenge to a sentencing issue “that became apparent as soon as the court

finished announcing its proposed sentence and that counsel nonetheless declined the court’s

invitation to address” was an allegation of procedural error that garnered only plain-error review.

See id. at 386, 389. Cf. United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010)

(“The essence of a substantive-reasonableness claim is whether the length of the sentence is

greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” (internal

quotation marks omitted)); United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (defining

substantive-reasonableness review as “provid[ing] a backstop for those few cases that, although

procedurally correct, would nonetheless damage the administration of justice because the

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter

of law”).

A Tapia error likewise involves a claim that the district court’s sentencing process was

flawed, is obvious at the time of sentencing, and could be remediated with a contemporaneous

objection. See Vonner, 516 F.3d at 386. Gall and Vonner therefore strongly suggest that an

alleged Tapia error is a claim of procedural unreasonableness that, if unpreserved, is reviewed

only for plain error.

In Henderson v. United States, 133 S. Ct. 1121 (2013), which was decided soon after

Deen, the Supreme Court cast serious doubt on the continuing validity of this circuit’s

characterization of a Tapia error as implicating a sentence’s substantive reasonableness.

Henderson, after all, was predicated on the assumption that an unpreserved Tapia error garners

only plain-error review. There, the defendant had been sentenced before the Supreme Court

decided Tapia, and his counsel had not objected at sentencing to the district court’s consideration

No. 13-2451 United States v. Krul Page 14

of rehabilitation at sentencing. The Supreme Court observed that, “since Henderson’s counsel

had not objected [to the Tapia error] in the trial court, the Court of Appeals could not correct the

error unless [Federal Rule of Criminal Procedure] 52(b) applied. The Rule, however, applies

only if the error was ‘plain.’” Id. at 1125. Henderson went on to conclude that an error is

“plain” as long as it is plainly wrong at the time of appellate review, even if it was not plainly

incorrect at the time of the district court’s decision. Id. at 1124–25.1

Moreover, every other circuit that has decided the issue has chosen to review unpreserved

Tapia claims for plain error, consistent with Henderson. See, e.g., United States v. Del Valle-

Rodriguez, 761 F.3d 171, 174 (1st Cir. 2014); United States v. Vandergrift, 754 F.3d 1303, 1307

(11th Cir. 2014); United States v. Wooley, 740 F.3d 359, 368 (5th Cir. 2014); United States v.

Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013); United States v. Pickar, 666 F.3d 1167, 1169 (8th Cir.

2012); United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012); United States v. Grant, 664

F.3d 276, 279 (9th Cir. 2011); United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir. 2011).

See also United States v. Godoy, 706 F.3d 493, 496 (D.C. Cir. 2013) (declining to decide the

question); United States v. Gallagher, 526 F. App’x 658, 661 (7th Cir. 2013) (assuming, without

deciding, that plain error applied).

To the extent that Deen—relying upon this court’s pre-Gall and pre-Henderson

practice—suggested a result different than that reached by every other circuit that has considered

the issue, Henderson has placed its approach in serious peril. After all, if this court’s pre-

Henderson approach was correct, then Henderson was “a fool’s errand.” Cf. United States v.

Blewett, 746 F.3d 647, 658 (6th Cir. 2013) (en banc) (noting similar effects in the Fair

Sentencing Act context). This court’s pre-Henderson approach therefore enjoys the dubious

distinction of being both alone among the circuits and implicitly rejected by the Supreme Court.

Given this authority, I conclude that plain-error review should apply to Krul’s

unpreserved Tapia challenge. Beyond being mandated by pertinent case law, this approach

makes practical sense. The specter of plain-error review for an unpreserved Tapia challenge

incentivizes a criminal defendant to make a contemporaneous Tapia objection at sentencing,

1

Tapia itself also seems to have assumed that Rule 52(b)’s plain-error analysis would control the ability of

a defendant to rely upon an unpreserved allegation of Tapia error. See id., 131 S. Ct. at 2393.

No. 13-2451 United States v. Krul Page 15

thereby giving the district court an opportunity to ensure that impermissible rehabilitative goals

are not influencing its sentencing decision. See Vonner, 516 F.3d at 386.

On de novo review, a Tapia error results in a procedurally unreasonable sentence. But

where a defendant has not raised the Tapia issue to the sentencing court’s attention, plain-error

review requires him to show “(1) error (2) that was obvious or clear, (3) that affected [his]

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” Id. (internal quotation marks omitted). Because “[a] sentencing error affects a

defendant’s substantial rights when there is a reasonable probability that, but for the error, the

defendant would have received a more favorable sentence,” United States v. Ferguson, 681 F.3d

826, 833 (6th Cir. 2012) (internal alteration and citation omitted), subjecting unpreserved Tapia

claims to plain-error review means in practical terms that a defendant must identify some reason

to believe that the district court would have given him a different sentence if it had not

impermissibly considered rehabilitative goals.

Although the majority in this case affirms without reaching the issue of plain error, the

result would be the same even if it had. “[T]he burden of establishing entitlement to relief for

plain error is on the defendant claiming it,” United States v. Dominguez Benitez, 542 U.S. 74, 82

(2004), and Krul has failed to show a reasonable probability “that his sentence would have been

different but for the court’s consideration of rehabilitation.” Vandergrift, 754 F.3d at 1312. Krul

has only pointed to the district court’s statements and stated that they violated Tapia. He then

requests that, because there is no way of knowing what would have happened if the district court

had taken rehabilitation entirely off the table, his case should be remanded for resentencing.

But relying on an absence of evidence is not the same as demonstrating a “reasonable

probability” that the result at sentencing would have been different. “[B]ecause the district court

never expressed an intention to lengthen [Krul’s] sentence for rehabilitative purposes . . . we

would have to speculate whether he would have received a lighter sentence absent the court’s

comment[s] about the defendant’s [rehabilitative needs].” Pickar, 666 F.3d at 1169 (internal

quotation marks omitted). Krul has therefore failed to demonstrate that his substantial rights

were affected by the alleged error. Id. Cf. United States v. Tolbert, 668 F.3d 798, 803 (6th Cir.

2012) (“[T]he district court . . . appears to have selected a within-Guidelines sentence primarily

No. 13-2451 United States v. Krul Page 16

due to the seriousness of the crime, the need for deterrence, and the need to protect the public.”);

Vandergrift, 754 F.3d at 1312 (citation omitted) (Tapia error did not affect substantial rights

where rehabilitation concerns did not “dr[i]ve the district court’s sentencing decision”); Bennett,

698 F.3d at 201 (Tapia error did not affect defendant’s substantial rights where the sentencing

court stated that it “will impose a sentence that provides ample time for [intensive substance

abuse treatment]” and that the sentence was intended to both “reflect the serious nature of the

breach of trust” and “provide ample time for substance abuse treatment”). See also United States

v. Culbertson, 712 F.3d 235, 243–44 (5th Cir. 2013) (reversible Tapia error where the district

court repeatedly referred to the defendant’s rehabilitation needs in imposing a sentence three

times the Guideline range); Wooley, 740 F.3d at 365 (reversible Tapia error where sentence was

crafted explicitly for the “purpose[]” of affording the defendant rehabilitative treatment);

Cordery, 656 F.3d at 1105 (reversible Tapia error where district court expressly calculated the

length of the sentence to permit the defendant to participate in rehabilitation programs).

For these reasons, although I disagree with the majority’s holding that the district court

did not commit a Tapia error, I agree that Krul is not entitled to reversal of his within-Guidelines

sentence, having failed to satisfy his burden under plain-error review. I therefore concur in the

judgment only.