Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Carol Loupe Michel, U.S. Attorney's Office, Dorothy Manning Taylor, Esq., Assistant U.S. Attorney,
Liskow & Lewis, P.L.C., New Orleans, LA, for Plaintiff-Appellee.
Jordan Mark Siverd, Assistant Federal Public Defender, Gary V. Schwabe, Jr., Esq., Assistant Federal Public, Federal Public Defender's Office, New Orleans, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before DAVIS, GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Corey P. Wooley (" Wooley" ) was sentenced to thirty months of imprisonment, following the revocation of a prior probation sentence. During the revocation hearing, the sentencing court noted its belief that Wooley suffers from a cocaine problem, repeatedly referenced his need for treatment, and explicitly indicated that the sentence was imposed for the purpose of resolving Wooley's untreated drug problem. The district court committed clear error by violating the Supreme Court's mandate in Tapia v. United States, which prohibits a sentencing court from " imposing or lengthening a prison sentence to ... promote rehabilitation."
__ U.S. __, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). Accordingly, we VACATE the sentence and REMAND to the district court for resentencing in light of this opinion.
In November of 2009, Wooley pleaded guilty to the unlawful use of a United States Coast Guard Merchant Marine Officer License, in violation of 18 U.S.C. § 2197. Wooley was sentenced to five years of probation, with six months of home confinement. The probation order required Wooley to submit to random urinalysis drug testing by a probation officer, pay for his electronic monitoring system, and attend a " life skills" program.
In September of 2012, the government sought to revoke Wooley's probation based on various instances of noncompliance. Specifically, the government's petition alleged that Wooley had failed to pay his location-monitoring fee, submitted a diluted urine specimen, failed to report for urinalysis drug testing on eleven occasions, failed to submit several monthly supervision reports, missed two scheduled office visits, and, despite advance notice, was not present during scheduled home visits. The petition was subsequently amended to include an allegation that Wooley had failed to advise his probation officer that in January of 2012, he pleaded guilty to the misdemeanor offense of misrepresentation of name, age, and address.
On October 17, 2012, a probation-revocation hearing was held. Wooley, represented by counsel, declined to contest the allegations of noncompliance but asked the court to continue his probation, explaining that the violations were a result of communication problems with his probation officer. The district court noted that based on a criminal-history category of I, and the Grade C probation violations, the recommended sentence under the United States Sentencing Guidelines is three to nine months. See U.S.S.G. § 7B1.4. The court expressed its concern with " not necessarily each violation but the cumulative effect of so many violations" and questioned whether Wooley was suffering from a " drug illness ... that he is not getting treated for." Wooley denied any substance-abuse problems and insisted that the violations were a result of communication issues and misunderstandings, explaining that he was out of town for some of the missed appointments.
The district court reiterated its concern with the amount of violations and its belief that Wooley suffered from a drug problem, which the court reasoned could be resolved by the sentence:
I don't like punishing somebody for what I call a technical violation; that is, you know if you were away on work or whatever and they called you and there was a problem with that, I don't normally revoke for that. But you have had so many other instances where you missed without any excuse, either reporting issues, random testing issues, the home visit issues. I think something else is going on here. What I don't know. I know there is a specimen that was diluted, and some trace amounts of cocaine. Those seem to be some concerns that need addressing. I'm hoping that this particular matter will be put to rest as a result of whatever we do here ....
After briefly inquiring into Wooley's work history and family ties, the court then stated:
Sometimes when individuals don't report for ordered drug analysis or testing to then determine if they need treatment, when they are unable to do that on their own, then sometimes a confined setting might help to get that done. I thought I gave you a really good break when I sentenced you before to that probated sentence, including a home detention rather than straight jail. You have had an opportunity more than once now with probation to correct your actions with them. You let all of us down, Mr. Wooley. But it is not us that I am concerned about, it is you. You need help, and I think that help is something that maybe perhaps you are in some sort of denial on. I know you don't think you have a problem, but I tend to believe you may because of all those missed appointments for drug testing and that diluted specimen that I mentioned earlier. All of that are grounds for revocation; therefore, I am going to revoke.
I am considering in mitigation, which you have said, but again I think it is an evidence [sic] to me that you need help for I think a cocaine problem. So in that regard the Court is going to sentence you to 30 months imprisonment for purposes of getting you that help. And also to impress upon you the seriousness when you violate Court orders, particularly an order where I thought I gave you a pretty good break to handle whatever it is you need to handle on your own. Sometimes people need help, and you are of those I think need that sort of help.
The district court then " recommend[ed] highly" to the Bureau of Prisons (" BOP" ) that Wooley be provided counseling and testing for consideration of treatment for substance abuse issues, referring specifically to a boot-camp program and a 500-hour program. The district court advised Wooley that " [i]f it is offered to you take it. [These rehabilitative programs] not only give [ ] you help, but [they] also perhaps get you out of custody sooner than you otherwise would be out on." After this discussion, Wooley's counsel objected to the sentence, explaining that " in light of the fact that this is a significant variance from the guideline range that was applicable in this case ... we would object to the upward variance in this case on that basis. And as required by the current Fifth Circuit case law, we have to object on the grounds that it is an unreasonable application of 18 United States Code, Section 3553(a) and those sentencing factors." In response, the district court said:
I understand. And for the record, the Court has considered all of the 18, 3553(a) factors. And again I feel as if the variance that I have ordered is in
keeping with those factors, particularly the factors dealing with impressing upon someone like Mr. Wooley under the circumstances here the need to comply with orders and conditions of sentencing that ...