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376 F.3d 1210

(Cite as: 376 F.3d 1210)


United States Court of Appeals,

Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.

Vernon TSOSIE, Defendant-Appellant.

No. 03-2209.

Aug. 2, 2004.

Background: After defendant was convicted of assault resulting in serious bodily
injury, and sentenced to term of imprisonment and supervised release, the United
States District Court for the District of New Mexico, William P. Johnson, J.,
revoked his supervised release and imposed prison term. Defendant appealed.

Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:

(1) District Court could consider defendant's need for rehabilitation in deciding
length of prison term, and

(2) District Court's decision to extend defendant's time in prison to provide him
with opportunity to participate in substance abuse treatment program was reasoned
and reasonable.


Affirmed.



O'Brien, Circuit Judge, dissented and filed opinion.

West Headnotes

[1] Criminal Law 110 k 1030(1)

110 Criminal Law

110XXIV Review

110XXIV(E) Presentation and Reservation in Lower Court of Grounds of
Review

110XXIV(E)1 In General

110k1030 Necessity of Objections in General

110k1030(1) k. In General. Most Cited Cases

(Formerly 110k1028)

Generally, failure to raise an issue below results in a review for plain error
only.

[2] Criminal Law 110 k 1028



© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


110 Criminal Law

110XXIV Review

110XXIV(E) Presentation and Reservation in Lower Court of Grounds of
Review

110XXIV(E)1 In General

110k1028 k. Presentation of Questions in General. Most Cited
Cases

Criminal Law 110 k 1134.27

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)4 Scope of Inquiry

110k1134.27 k. In General. Most Cited Cases

(Formerly 110k1134(3))

When the district court sua sponte raises and explicitly resolves an issue of law
on the merits, the appellant may challenge that ruling on appeal on the ground
addressed by the district court even if he failed to raise the issue in district
court; in such a case, review on appeal is not for plain error, but is subject to
the same standard of appellate review that would be applicable if the appellant
had properly raised the issue.

[3] Criminal Law 110 k 1042.3(4)

110 Criminal Law

110XXIV Review

110XXIV(E) Presentation and Reservation in Lower Court of Grounds of
Review

110XXIV(E)1 In General

110k1042.3 Sentencing and Punishment

110k1042.3(4) k. Probation and Related Dispositions. Most
Cited Cases

(Formerly 110k1042)

District court questioned whether it could enlarge defendant's sentence solely for
purpose of rehabilitation sua sponte, and decided such question explicitly on
merits, such that review was appropriate despite defendant's failure to raise
question below, where court cited case holding that rehabilitative needs could be
considered when imposing specific incarceration term following revocation of
supervised release. 18 U.S.C.A. s 3582(a); 28 U.S.C.A. s 994(k).

[4] Sentencing and Punishment 350H k 45

350H Sentencing and Punishment

350HI Punishment in General

350HI(C) Factors or Purposes in General

350Hk45 k. Rehabilitation and Reform. Most Cited Cases

Sentencing and Punishment 350H k 1833

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(B) Grounds and Considerations in General

350Hk1833 k. Rehabilitation and Reformation of Offender. Most Cited
Cases

Sentencing and Punishment 350H k 2033

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2033 k. Matters Considered. Most Cited Cases

Statute requiring district court, when "determining whether to impose a term of
imprisonment," to recognize "that imprisonment is not an appropriate means of
promoting correction and rehabilitation," and statute instructing Sentencing
Commission to insure that Sentencing Guidelines reflect inappropriateness of
imposing a term of imprisonment for purpose of rehabilitation, apply only when a
court is initially imposing a sentence of imprisonment for the crime committed,
not when the court is revoking a term of supervised release. 18 U.S.C.A. s
3582(a); 28 U.S.C.A. s 994(k).

[5] Statutes 361 k 206

361 Statutes

361VI Construction and Operation

361VI(A) General Rules of Construction

361k204 Statute as a Whole, and Intrinsic Aids to Construction

361k206 k. Giving Effect to Entire Statute. Most Cited Cases

Courts should avoid statutory interpretations which render provisions superfluous.

[6] Sentencing and Punishment 350H k 2033

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2033 k. Matters Considered. Most Cited Cases

A district court is to consider the medical and correctional needs of an offender
in determining how much time that offender should be required to serve in prison
after it becomes clear he will not abide by the conditions of his supervised
release if he is not confined. 18 U.S.C.A. s 3582(a); 28 U.S.C.A. s 994(k).


[7] Sentencing and Punishment 350H k 2033

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2033 k. Matters Considered. Most Cited Cases

District court could consider assault defendant's need for rehabilitation, through
imposing sentence of sufficient length to provide him with opportunity to
participate in voluntary 500-hour substance abuse treatment program, upon revoking
his supervised release. 18 U.S.C.A. s 3582(a); 28 U.S.C.A. s 994(k).

[8] Sentencing and Punishment 350H k 2036

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2036 k. Imposition of Increased Sentence. Most Cited
Cases

District court's decision, upon revoking assault defendant's supervised release,
to extend his time in prison to provide him with opportunity to participate in
voluntary 500-hour substance abuse treatment program, was reasoned and reasonable,
notwithstanding defendant's claim that he would not participate in such program,
where court cited severity of defendant's alcohol problem and danger to society if
he continued to drink and drive. U.S.S.G. s 7B1.4, p.s., 18 U.S.C.A.

[9] Criminal Law 110 k 1139

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)13 Review De Novo

110k1139 k. In General. Most Cited Cases

The Court of Appeals reviews de novo legal questions regarding the application of
the Sentencing Guidelines. U.S.S.G. s 1B1.1 et seq., 18 U.S.C.A.

[10] Criminal Law 110 k 1158.34

110 Criminal Law

110XXIV Review

110XXIV(O) Questions of Fact and Findings

110k1158.34 k. Sentencing. Most Cited Cases

(Formerly 110k1158(1))

The Court of Appeals reviews the district court's factual findings for clear
error, giving due deference to the district court's application of the Sentencing
Guidelines to the facts. U.S.S.G. s 1B1.1 et seq., 18 U.S.C.A.


[11] Sentencing and Punishment 350H k 2033

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2033 k. Matters Considered. Most Cited Cases

Although the Sentencing Guidelines' policy statements regarding revocation of
supervised release are advisory rather than mandatory in nature, they must be
considered by the trial court in its deliberations concerning punishment for
violation of conditions of supervised release. U.S.S.G. s 1B1.1 et seq., 18
U.S.C.A.

[12] Sentencing and Punishment 350H k 2038

350H Sentencing and Punishment

350HIX Probation and Related Dispositions

350HIX(I) Revocation

350HIX(I)4 Disposition of Offender

350Hk2038 k. Sentence Within Statutory or Other Limitation for
Offense of Conviction. Most Cited Cases

If the district court imposes a sentence in excess of that recommended in the
Sentencing Guidelines chapter governing violations of supervised release, the
Court of Appeals will not reverse if it can be determined from the record to have
been reasoned and reasonable. U.S.S.G. s 7B1.1, p.s., 18 U.S.C.A.

*1212 Norman Cairns, Assistant United States Attorney, (David C. Iglesias, United
States Attorney with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Stephen P. McCue, Federal Public Defender (Roger A. Finzel, Assistant Federal
Public Defender with him on the briefs), Albuquerque, NM, for Defendant-Appellant.


Before SEYMOUR, LUCERO and O'BRIEN, Circuit Judges.


SEYMOUR, Circuit Judge.

Vernon Tsosie challenges the district court's decision to revoke his term of
supervised release and require him instead to serve eighteen months in prison for
the remainder of an enlarged supervised release term. He claims the district
court erroneously based the length of his prison sentence solely on his need for
rehabilitation and that the sentence was neither reasoned nor reasonable. We
exercise jurisdiction under 28 U.S.C. s 1291 and affirm.


I

Mr. Tsosie had been drinking on the morning of December 16, 1998, when he stabbed
two men at a party on the Fort Hall Indian Reservation in Idaho. He pled guilty
to two Class C felony counts of assault resulting in serious bodily injury and was
sentenced to forty-two months imprisonment followed by three years of supervised
release.FN1 Among the conditions of Mr. Tsosie's supervised release was that he
refrain from using illegal drugs, he refrain from excessive use of alcohol, and
that he not commit any federal, state or local crime. Mr. Tsosie's supervised
release began in Idaho on May 1, 2002, and his case was transferred to the
district court in New Mexico on October 23, 2002. He violated the conditions of
his release on April 19, 2003, when he was arrested for fighting with his wife
after drinking alcohol, and again on April 27, 2003, when he was arrested for
aggravated driving under the influence of alcohol. The probation office filed a
petition to revoke Mr. Tsosie's supervised release. Following his arrest on the
revocation petition, Mr. Tsosie was released to a halfway house but absconded from
the facility shortly thereafter. Eventually, he turned himself in.

FN1. A Class C felony is one in which the statutory maximum sentence is less
than twenty-five years but more than ten years. 18 U.S.C. s 3559(a)(3).
Mr. Tsosie was charged and pled guilty, in part, to 18 U.S.C. s 113(a)(6),
which calls for a fine or imprisonment up to ten years, or both. 18 U.S.C.
s 113(a)(6).

At the initial revocation hearing, in consideration of Mr. Tsosie's admitted
serious substance abuse problem, the district court stated it was contemplating
sentencing him above the three- to nine-month range indicated by the United States
Sentencing Guidelines to allow him to participate in the Bureau of Prisons'
500-hour substance abuse treatment program. See U.S. SENTENCING GUIDELINES
MANUAL ss 7B1.1(a)(3) and 7B1.4(a). Mr. Tsosie objected and requested a
continuance so he could respond to the district court's concerns in writing. In
his subsequent Sentencing Memorandum, Mr. Tsosie maintained he would not
participate in the 500-hour voluntary program but would participate in a
thirty-day in-patient treatment program. When the revocation hearing reconvened,
Mr. Tsosie admitted to the violations of his supervised release but reiterated he
would not participate in the voluntary treatment program offered by the Bureau of
Prisons.

The district court found Mr. Tsosie had a severe alcohol problem that endangered
him and the public and further found a thirty-day treatment program insufficient
to deal with his problem. The court sentenced him to eighteen months in prison
*1213 with a strong recommendation he be enrolled in the Bureau of Prisons'
treatment program. Mr. Tsosie again objected, pointing to the fact the program
was strictly voluntary and he would not participate. The court noted his
objections for the record but affirmed the sentence "notwithstanding the
defendant's stated intentions." Rec., vol. IV, Tr. of Proceedings 8/25/03, at
15.



II

Mr. Tsosie raises two issues on appeal. He maintains the district court erred
when it lengthened his sentence for the sole purpose of rehabilitation and asserts
his sentence is neither reasoned nor reasonable. We will address the
rehabilitation issue before turning to the validity of the sentence.


A. Rehabilitation as factor relevant to requiring defendant to serve time in
prison upon revocation of supervised release

[1][2] Mr. Tsosie failed to raise the rehabilitation issue below. Generally,
such failure results in a review for plain error only. See United States v.
Tisdale, 248 F.3d 964, 975 (10th Cir.2001) (failure to lodge specific objection to
district court's legal interpretation or application of sentencing guidelines
precludes appellate review, except for plain error), cert. denied, 534 U.S. 1153,
122 S.Ct. 1120, 151 L.Ed.2d 1013 (2002). However, we recently recognized an
exception to this general rule.

[W]hen the district court sua sponte raises and explicitly resolves an issue of
law on the merits, the appellant may challenge that ruling on appeal on the
ground addressed by the district court even if he failed to raise the issue in
district court. In such a case, review on appeal is not for "plain error," but
is subject to the same standard of appellate review that would be applicable if
the appellant had properly raised the issue.

United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir.2003).

[3] Mr. Tsosie argues the district court questioned whether it could enlarge his
sentence solely for the purpose of rehabilitation sua sponte and decided the
question explicitly on the merits. The district court premised its sentencing
decision with the statement:

In the United States versus Brown, 224 F.3d 1237, an Eleventh Circuit opinion at
Pages 1239 to 1240, the court affirmed the maximum sentence of two years for
rehabilitation purposes where the guideline maximum was 11 months. The court
held that, "A court may consider a defendant's rehabilitative needs when
imposing a specific incarceration term following revocation of supervised
release."

Rec., vol. IV, Tr. of Proceedings 08/25/03, at 10. We agree the district court
directly decided this issue of law. Thus, we review de novo the district court's
decision to impose an enlarged sentence on Mr. Tsosie upon revocation of his
supervised release for the sole purpose of his rehabilitation.

Mr. Tsosie contends 28 U.S.C. s 994(k) and 18 U.S.C. s 3582(a) prohibit the
promotion of rehabilitation as a significant factor when a court determines the
length of a prison sentence after revocation of supervised release. 28 U.S.C. s
994(k) instructs the Sentencing Commission to "insure that the guidelines reflect
the inappropriateness of imposing a sentence to a term of imprisonment for the
purpose of rehabilitating the defendant or providing the defendant with needed
educational or vocational training, medical care, or other correctional
treatment." 28 U.S.C. s 994(k). Likewise, 18 U.S.C. s 3582, in addressing
"factors to be considered in *1214 imposing a term of imprisonment," states in
relevant part:

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. s 3582(a). Although our court has not yet had reason to comment on the
specific import of this language, the other circuits have recognized its clear
mandate-when imposing an original sentence to a term of imprisonment, it is
inappropriate for the district court to consider rehabilitation of the defendant
as the sole purpose for imprisonment. See United States v. Brown, 224 F.3d
1237, 1240 (11th Cir.2000); United States v. Jackson, 70 F.3d 874, 879 (6th
Cir.1995).

Other circuits have also uniformly ruled, however, that district courts may give
weight to a defendant's rehabilitative needs when revoking a term of supervised
release and then subsequently requiring a defendant to serve part or all of his
new and potentially extended term of supervised release in prison. See Brown,
224 F.3d at 1242 (affirming imprisonment upon revocation of supervised release to
allow defendant to complete a comprehensive substance abuse treatment); United
States v. Thornell, 128 F.3d 687, 688 (8th Cir.1997) (affirming district court's
consideration of defendant's rehabilitative needs when imposing imprisonment in
excess of sentencing guidelines policy statement range after revocation of
supervised release); Jackson, 70 F.3d at 879-80 (affirming district court's
consideration of defendant's rehabilitative needs after mandatory revocation of
supervised release); United States v. Giddings, 37 F.3d 1091, 1094-95, 1097 (5th
Cir.1994) (same); United States v. Anderson, 15 F.3d 278, 282-83 (2d Cir.1994)
(affirming district court's consideration of defendant's correctional needs when
imposing sentence of imprisonment after revoking supervised release).

The distinction made between the factors appropriate for determining an initial
term of imprisonment and those appropriate for sentencing upon revocation of
supervised release is based on the statutes specifically relevant to supervised
release. In the original sentencing process, the district court contemplates
both the term of imprisonment and the following period, if any, of supervised
release. But the initial term of imprisonment is always limited by 18 U.S.C. s
3582(a) and 28 U.S.C. s 994(k). Conversely, when determining the imposition and
length of supervised release, a court is required pursuant to 18 U.S.C. s 3583(c),
to look to the factors in various subsections of 18 U.S.C. s 3553(a), including
"the need for the sentence [of supervised release] imposed ... to provide the
defendant with needed ... medical care, or other correctional treatment in the
most effective manner...." 18 U.S.C. s 3553(a)(2)(D).

When a defendant violates the conditions of supervised release under circumstances
allowing the court discretionary revocation of that release, s 3583(e) affords the
court several alternatives. No matter which alternative is chosen, the statute
requires the court to consider the s 3553(a) factors before deciding an
appropriate course of action with regard to a particular defendant.FN2 After
considering the s 3553(a) factors, the district court may terminate or extend the
term of supervised release under certain conditions. *1215 See 18 U.S.C. s
3583(e)(1), (2). The court may also choose to:

FN2. Mandatory revocation, governed by s 3583(g) and requiring imprisonment
upon revocation, does not expressly require consideration of the s 3553(a)
factors, but neither does it prohibit the sentencing court from doing so.

revoke a term of supervised release, and require the defendant to serve in prison
all or part of the term of supervised release authorized by statute for the
offense that resulted in such term of supervised release ... except that a
defendant whose term is revoked under this paragraph may not be required to
serve on any such revocation ... more than 2 years in prison if such offense is
a class C or D felony....

18 U.S.C. s 3583(e)(3) (emphasis added).

[4] Our reading of the various statutes in question leads us to conclude Congress
intended the limitations imposed by 18 U.S.C. s 3582(a) and 28 U.S.C. s 994(k) to
apply only when a court is initially "imposing a sentence to a term of
imprisonment" for the crime committed. Section 3582(a) of title eighteen, and s
994(k) of title twenty-eight clarify that it is inappropriate to impose a sentence
to a term of imprisonment solely for rehabilitative purposes or correctional
treatment. However, the same cautionary tone is not present in the statute
governing supervised release or the revocation thereof. In s 3583(c), Congress
identified the factors, including medical and correctional treatment, that a court
should consider when setting a "term of supervised release," s 3583(c), and when
terminating, extending or revoking a "term of supervised release," s 3583(e)(1),
(2), (3). In the instance of revocation, Congress used the phrase "require the
defendant to serve in prison all or part of the term of supervised release," s
3583(e)(3), rather than the phrase "impose a term of imprisonment," s 3582(a).
Cf. s 994(k) ("The Commission shall insure the guidelines reflect the
inappropriateness of imposing a sentence to a term of imprisonment for the purpose
of rehabilitating the defendant or providing the defendant with needed educational
or vocational training, medical care, or other correctional treatment.") (emphasis
added). The difference in language between 18 U.S.C. s 3583(c), (e) ("term of
supervised release") and 18 U.S.C. s 3582(a) and 28 U.S.C. s 994(k) ("term of
imprisonment") reinforces the argument that Congress did not intend the
limitations applicable to an initial sentence of imprisonment to be applicable in
redetermining a sentence of supervised release to include prison time upon the
revocation of the prior term of supervised release.FN3

FN3. As the dissent notes, Congress used the phrase "term of imprisonment"
in s 3583(h) instead of "serve in prison all or part of a term of supervised
release," which it utilized in s 3583(e)(3). Dissent at 1222. This
inconsistency, while unfortunate, is not fatal to our conclusion because
both subsections can be read in conjunction with one another so as not to
render either superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122
S.Ct. 441, 151 L.Ed.2d 339 (2001) ("It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that,
if it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.") (quotations and citation omitted). As we read
subsection (h), after the court revokes a defendant's supervised release and
then requires him pursuant to subsection (e)(3) "to serve in prison ... part
of the term of supervised release authorized by statute ... without credit
for time previously served on post-release supervision", the court may
require the defendant to serve the rest of this new term of supervised
release upon release from prison. If, after revocation, the court requires
the defendant to serve in prison all, rather than part, of the new term of
supervised release, subsection (h) is not implicated because any supervised
release following revocation cannot exceed the duration of the original term
of supervised release. The only way to read subsections (e)(3) and (h)
together is that the time in prison post release is time that is part of a
new "term of supervised release."

We find it noteworthy that the dissent accuses us of "judicial revision"
while making an argument that revises Congress's language. Dissent at
1223. Substituting its own phrase ("two year term") for the phrase
Congress actually used in s 3583(e)(3) ("require the defendant to serve in
prison all or part of the term of supervised release"), the dissent
judicially revises the statute so it is "incapable of supporting [our]
anomalous interpretation." Id. at 1222. Likewise, we could make our
argument stronger by judicially revising subsection (h) so it contained
the language of subsection (e)(3). These potential revisions, however,
are not the law and we are not Congress. Therefore, rather than
judicially revising the statutes to suit our position, we believe the best
course is to interpret them in a manner giving meaning to each while
eclipsing none.

*1216 The rationale for allowing courts to consider rehabilitation when
incarcerating a defendant upon violation of the conditions of his supervised
release is "especially compelling," Giddings, 37 F.3d at 1096, because the judge
is merely altering the location of the defendant's supervised release from outside
prison to inside prison.

When revoking supervised release the district judge is not resentencing the
defendant. The type and the term of the sentence has already been determined
by the sentencing judge. The supervising district judge is bound by the
sentence previously imposed, and at revocation is merely converting all or a
portion of the supervised release period into a term of imprisonment. Given
the limited discretion available to the supervising district judge, and the fact
that the sentencing range is fixed by statute, consideration of the s 3553(a)
factors may be appropriate to fashion a sentence conforming to the purpose and
intent of the original sentence, and that is within the boundaries established
by the sentencing judge.

Id. Because the court is not imposing a "term of imprisonment" after revocation,
but rather converting a term of supervised release, the court is merely requiring
the defendant "to serve in prison all or part of the term of supervised release"
as contemplated by the plain language of s 3583(e)(3).

Because [medical and correctional needs] may be considered in determining the
length of the period of supervised release and because a district court may
require a person to serve in prison the period of supervised release, the
statute contemplates that the medical and correctional needs of the offender
will bear on the length of time an offender serves in prison following
revocation of supervised release.

Anderson, 15 F.3d at 282 (citation omitted).

The legislative history for s 3583 makes clear that the terms of a defendant's
supervised release should be considered separately from those of his term of
imprisonment and requires a court's consideration of rehabilitation factors. The
history explicitly states that "[t]he term of supervised release would be a
separate part of the defendant's sentence, rather than being the end of the term
of imprisonment." S.REP. NO. 225, 98th Cong., 2d Sess. 123 (1983), reprinted in
1984 U.S.C.C.A.N. 3182, 3306. It goes on to note that

[s]ubsection (c) [of 18 U.S.C. s 3583] specifies the factors that the judge is
required to consider in determining whether to include a term of supervised
release as a part of the defendant's sentence, and, if a term of supervised
release is included, the length of the term. The judge is required to consider
the history and characteristics of the defendant, the nature and circumstances
of the offense, the need for the sentence to protect the public from further
crimes of the defendant and to provide the defendant with needed educational or
vocational training, medical care, or other *1217 correctional treatment in the
most effective manner....

Id. at 3307. By logical extension, post-revocation supervised release served
within a prison should not trigger the limiting language of 18 U.S.C. s 3582(a)
and 28 U.S.C. 994(k) because the defendant is not being sentenced to a term of
imprisonment for the original crime. Instead, he is serving his term of
supervised release in prison because he failed to abide by the conditions for
serving supervised release outside of prison.FN4

FN4. Our interpretation does not undermine 28 U.S.C. s 994(k) because that
section retains its full force in the context of a court imposing an
original sentence to a term of imprisonment. As the Second Circuit has
noted,

the same reasons that render 18 U.S.C. s 3582 inapplicable, render 28
U.S.C. s 994(k) inapplicable to a court requiring an offender to serve
time in prison following the revocation of supervised release: (1) 18
U.S.C. s 3583 does not explicitly refer to any such limitation; (2) 18
U.S.C. s 3583 does explicitly refer to factors including the offender's
medical and correctional needs; (3) 18 U.S.C. s 3583 avoids language
similar to the "imposition of a sentence of imprisonment" language of 28
U.S.C. s 994(k); (4) 18 U.S.C. s 3583 expressly contemplates requiring an
offender to serve time in prison equal to his or her period of supervised
release, and a court may consider the medical and correctional needs of an
offender in determining the length of the period of supervised release.

United States v. Anderson, 15 F.3d 278, 283 (2d Cir.1994).

[5] In reaching this conclusion, we are also guided by the traditional canon of
statutory construction that courts should avoid statutory interpretations which
render provisions superfluous. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31,
122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ("It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.") (quotations and citation omitted). Were we to adopt Mr.
Tsosie's approach, those portions of 18 U.S.C. s 3583(e) referring to 18 U.S.C. s
3553(a)(2)(D), would be rendered superfluous.

[6][7] In sum, we hold that Congress intended a district court to consider the
medical and correctional needs of an offender in determining how much time that
offender should be required to serve in prison after it becomes clear he will not
abide by the conditions of his supervised release if he is not confined. Here,
the district court found Mr. Tsosie had violated the conditions of his supervised
release, considered the relevant factors, including the need for the sentence to
"provide the defendant with needed ... medical care, or other correctional
treatment in the most effective manner," see 18 U.S.C. s 3553(a)(2)(D), revoked
the initial term of supervised release, and required Mr. Tsosie to "serve in
prison ... part of the [new] term of supervised release." 18 U.S.C. s 3583(e)(3).
The court's actions were in accord with s 3583(e). Likewise, because Mr.
Tsosie's sentence did not exceed the two-year statutory maximum for a Class C
felony, see id., the court's sentencing determination was not erroneous.


B. Reasonableness of sentence

[8][9][10] We turn to the separate question of the reasonableness of the court's
decision to extend Mr. Tsosie's time in prison after revocation to provide him the
opportunity to participate in a voluntary program in which Mr. Tsosie claimed he
would not participate. We review de novo legal questions regarding the
application of the sentencing guidelines. See United States v. Brown, 314 F.3d
1216, 1222 (10th Cir.2003). We review the district court's factual findings for
clear error, "giving due *1218 deference to the district court's application of
the guidelines to the facts." Id.

[11][12] The range of imprisonment applicable upon revocation is set forth at
section 7B1.4(a) of the sentencing guidelines. We have held that section 7B1.4
is not a sentencing guideline per se but merely a "policy statement." See, e.g.,
United States v. Hurst, 78 F.3d 482, 483 (10th Cir.1996) (citing United States v.
Boling, 947 F.2d 1461, 1462 (10th Cir.1991) ("In dealing with violations of
supervised release the Sentencing Commission chose to issue policy statements
rather than guidelines, in order to permit evaluation after experience with the
new supervised release concept.")); see also United States v. Headrick, 963
F.2d 777, 782 (5th Cir.1992) ("The Sentencing Commission, cognizant of Congress's
differential treatment of guidelines and policy statements, chose to issue only
'advisory policy statements....' "). Although the policy statements regarding
revocation of supervised release are advisory rather than mandatory in nature,
they must be "considered by the trial court in its deliberations concerning
punishment for violation of conditions of supervised release." United States v.
Lee, 957 F.2d 770, 774 (10th Cir.1992). If the district court imposes a sentence
in excess of that recommended in Chapter 7, "we will not reverse if it can be
determined from the record to have been reasoned and reasonable." Id. See also
Hurst, 78 F.3d at 483. The district court sentenced Mr. Tsosie to serve eighteen
months in prison, a duration shorter than the two-year statutory maximum set out
in s 3583(e)(3) for a Class C felony, but longer than the three- to nine-month
range suggested in guideline section 7B1.4.

There can be no real dispute that the district court's decision was reasoned.
The court articulated its legal justification for departing from section 7B1.4 by
citing Brown and Thornell, see Rec., vol. IV, Tr. of Proceedings 08/25/03, at 10,
as well as by specifically stating that the section 7B1.4 range was three to nine
months and was merely advisory. Id. at 12. The court gave specific reasons for
exceeding the range, including the severity of Mr. Tsosie's alcohol problem, the
danger he would pose to himself and society if he continued to drink and drive,
the likely ineffectiveness of a thirty-day alcohol treatment program, the fact
that he had repeatedly violated the conditions of his supervised release, prior
leniency he had received from the courts, his failure to participate in counseling
or take advantage of placement at a halfway house, his continued association with
other felons, and his unresponsiveness to community supervision efforts. Id. at
10-13. The court then made a "strong[ ] recommend[ation]" that he be enrolled in
the voluntary 500-hour drug program because of Mr. Tsosie's "clear need" of such
extensive services. Id. at 13-14.

Mr. Tsosie argues the district court's decision was plainly unreasonable because
Mr. Tsosie had adamantly stated his intention not to participate in the voluntary
500-hour rehabilitation program. We are not persuaded. Courts have
consistently upheld the reasonableness of decisions based on reasons similar to
those articulated by the district court here. See Brown, 224 F.3d at 1242, 1243
(finding imposition of two-year sentence not abuse of court's discretion because
defendant "seriously needed the comprehensive [drug abuse treatment program]" and
"[a] longer prison term would probably enable [defendant] to obtain necessary drug
rehabilitation without posing a danger to himself or society"); Thornell, 128
F.3d at 688 (upholding a fourteen-month sentence as "judicious and carefully
tailored to the needs of this particular case and this particular offender" when
based on unlikelihood defendant would receive treatment she needed at *1219
half-way house and fact that her best chance of retaining parental rights and
being reunited with her children was through participating in a 500-hour drug
treatment program); Jackson, 70 F.3d at 879 (upholding reasonableness of
sixteen-month imprisonment term based on "the need to protect the public from
further crimes of the defendant, the need to protect defendant from himself, and
the need to facilitate defendant's participation in an intensive drug
rehabilitation program" in light of defendant's past violations of supervised
release, continuing drug use, crimes against property, and apparent drug
addiction, while noting it was "likely that a longer term of imprisonment will
insure that defendant has the opportunity to receive intensive drug rehabilitation
while not posing a threat to himself or the public"); Giddings, 37 F.3d at 1094
n. 7, 1097 (upholding two-year sentence imposed on basis that drug rehabilitation
program would be more readily available with a longer sentence); Anderson, 15
F.3d at 284 (upholding seventeen-month sentence because court considered s 3553
factors and made findings that defendant failed to adjust to supervision, failed
to fulfill her probation obligations and needed "intensive substance abuse and
psychological treatment in a structured environment"). While Mr. Tsosie cannot
be forced to participate in the drug rehabilitation program offered in prison,
that does not make it unreasonable for the district court to determine that Mr.
Tsosie is more likely to successfully address his alcoholism in a prison setting
given his failure to address it outside of prison.

Accordingly, we AFFIRM.

O'BRIEN, Circuit Judge, dissenting.

Aggravated facts (recited in the majority opinion) cry out for revocation of
Tsosie's supervised release. His recalcitrant behavior, along with all it
portends, fully justifies ignoring policy guidance, which suggests
re-incarceration for a term between three and nine months. USSG s 7B1.4(a). On
these facts imprisonment for eighteen months is well within elastic limits. FN1
However, the enlarged term of imprisonment was imposed, not because of Tsosie's
flagrant and repeated disregard of the terms of supervised release, but, in the
judge's words, "only " because of his need for intensive (long term) alcohol
treatment. That approach is not lawful. Accordingly, but with utmost respect
for my colleagues, I dissent.

FN1. "In the case of a Grade C violation that is associated with a high risk
of new felonious conduct ... an upward departure may be warranted." USSG s
7B1.4, comment. (n.3).

In the "evolving" FN2 area of supervised release the guidelines provide "policy
statements only." USSG, Ch.7, Pt. A(1). They are not binding on a district
judge, whose decision we accord great deference, requiring, quite generally, that
it be "reasoned and reasonable," United States v. White, 244 F.3d 1199, 1204
(10th Cir.2001). It must also be lawful. 18 U.S.C. s 3742(e). To my lights
the statutes and guidelines clearly prohibit an enlargement of a term of
imprisonment merely to accommodate a defendant's need for rehabilitation.

FN2. Now in the second decade of study.

Congressional intent is more than evident; it is nearly palpable. In addressing
a sentence of imprisonment, 18 U.S.C. s 3582(a) states in relevant part:

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 *1220 section 3553(a) to the extent that they
are applicable, recognizing that imprisonment is not an appropriate means of
promoting correction and rehabilitation.

(Emphasis added.) 28 U.S.C. s 994(k) continues the theme by instructing the
United States Sentencing Commission to "insure that the guidelines reflect the
inappropriateness of imposing a sentence to a term of imprisonment for the purpose
of rehabilitating the defendant or providing the defendant with needed educational
or vocational training, medical care, or other correctional treatment." Even a
tin ear can discern the leitmotif-defendant rehabilitation, treatment or care
cannot drive the incarceration decision either at the threshold or as to length.

The majority acknowledges the statutory limit on judicial discretion when an
original sentence of imprisonment is imposed. Majority Op. at 1214. See also,
e.g., United States v. Brown, 224 F.3d 1237, 1240 (11th Cir.2000); United
States v. Jackson, 70 F.3d 874, 879 (6th Cir.1995). But, for reasons I cannot
follow or fathom, it abandons this acknowledged limit for revocations of
supervised release. In doing so it ignores overarching congressional policy,
forcefully and repeatedly stated.FN3


FN3. The majority approach is not unlike that of United States v. Giddings,
37 F.3d 1091 (5th Cir.1994), upon which it relies and quotes. Majority Op.
at 1214, 1216, 1216, 1217 & 1219. That court said: "The legislative
history of the Comprehensive Crime Control Act of 1984 also indicates that
the prohibition against considering rehabilitative needs relates to the
decision of whether to impose imprisonment, not to the length of the term of
imprisonment. [FN 17]." Giddings, 37 F.3d at 1096. The Giddings court
was simply wrong in its analysis of legislative history and the impact of
that history on the relevant statutes. The full text of footnote 17, as
quoted in Giddings, follows:

See S.Rep. No. 225, 98th Cong., 2d Sess. 119 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3302, Subsection (a) specifies, in light of current
knowledge, that the judge should recognize, in determining whether to
impose a term of imprisonment, "that imprisonment is not an appropriate
means of promoting correction and rehabilitation." This caution
concerning the use of rehabilitation as a factor to be considered in
imposing sentence is to discourage the employment of a term of
imprisonment on the sole ground that a prison has a program that might be
of benefit to the prisoner. This does not mean, of course, that if a
defendant is to be sentenced to imprisonment for other purposes, the
availability of rehabilitative programs should not be an appropriate
consideration, for example, in recommending a particular facility. (
[E]mphasis supplied.)

The Giddings court erred in two respects. First, legislative history
cannot change the plain language of a statute and 18 U.S.C. s 3582(a)
speaks not only to the decision to impose incarceration but also to the
length of any incarceration imposed. It requires, in either instance,
that the sentencing judge recognize "that imprisonment is not an
appropriate means of promoting correction and rehabilitation." Second,
the court mis-read the language it quotes in footnote 17. The
legislative history merely provides that after the incarceration decision
is made (and any decision to incarcerate would necessarily include a term)
rehabilitative factors can be considered "for example, in recommending a
particular facility." A post-sentencing facility recommendation hardly
equates with a determination of the length of the sentence, particularly
so in light of clear and contrary statutory language.

The tipping point is whether incarceration is appropriate, not when it is ordered.
In authorizing, sometimes requiring, supervised release after imprisonment, 18
U.S.C. s 3583(c) instructs the sentencing judge to consider 18 U.S.C. s 3553(a)
factors. Among those factors is "the need for the sentence imposed ... to
provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner...." 18 U.S.C.
s 3553(a)(2)(D). But supervised release is not, by definition or in effect,
incarceration; a fortiori, the incarceration limits of 18 U.S.C. s 3582(a) *1221
and 28 U.S.C. s 994(k) are not implicated. But those limits may be implicated
when a defendant fails to take advantage of the rehabilitative features of
supervised release.

A decision to terminate, modify, extend, or revoke supervised release is also
tempered by a consideration of some of the s 3553(a) sentencing factors, but in a
much more structured manner than the majority suggests. 18 U.S.C. s 3583(e)
provides: "Modification of conditions or revocation.-The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7), ..." address supervised release.
Depending upon circumstances it can: (1) terminate supervised release, (2) extend
the term of supervised release, (3) revoke a term of supervised release, or (4)
impose house arrest and require electronic monitoring. 18 U.S.C. ss 3583(e)(1)
-(4). The court must consider the enumerated s 3553(a) factors before, and as a
guide to, choosing among the four possible consequences, three of which do not
involve incarceration. The tipping point does not change; it remains a choice
between incarceration (punishment model) and some kind of release (rehabilitation
model).

If, in spite of a defendant's failure to avail himself of the benefits of
supervised release, facts suggest a rehabilitation model is still appropriate, one
of the sentencing options not involving incarceration would be the choice. On
the other hand, if re-incarceration is necessary, the strictures of 18 U.S.C. s
3582(a) and 28 U.S.C. s 994(k) apply-the availability of prison programs cannot
drive the decision to incarcerate or its length.

I see nothing in any of the statutes even remotely suggesting that the
incarceration limits contained in s 3582 and s 994 are not global in application.
More specifically, there is nothing in the structure or text of 18 U.S.C. s 3583,
or in logic, to suggest revocations of supervised release are somehow exempt from
those global restrictions. The majority opinion does not square the box.

It tells us: "The rationale for allowing courts to consider rehabilitation when
incarcerating a defendant upon violation of the conditions of his supervised
release is 'especially compelling,' Giddings, 37 F.3d at 1096, because the judge
is merely altering the location of the defendant's supervised release from outside
prison to inside prison." Majority Op. at 1216. Relating and explaining that
rationale to a client could be a challenge for defense counsel. The conversation
might go something like this: "There is good news; your supervised release has
been continued. But there is bad news; you will be serving your supervised
release in prison." In puzzling over the logic, a defendant might well ask what
kind of device one must look through to conclude that a supervised release must be
served behind prison walls.FN4 The logical disconnect is repeated at Page 1217 of
the Majority Opinion: "he is serving his term of supervised release in prison
because he failed to abide by the conditions for serving supervised release
outside of prison." Contrary to the majority's holding-that supervised release
is the same whether served inside or outside prison walls-a revocation of
supervised release, perhaps resulting in months or years behind bars, is a
sentence of imprisonment. Logic compels. So do the statutes, fairly read.

FN4. "Would you tell me, please," said Alice, "what that means?" Lewis
Carroll, Through the Looking Glass, 186 (Penguin Books 1998).

Clumsy statutory language may contribute to the problem, but it is exacerbated by
the majority's selective emphasis. Indeed,*1222 as the majority notes, 18
U.S.C. s 3583(e)(3) permits the court to:

[r]evoke a term of supervised release, and require the defendant to serve in
prison all or part of the term of supervised release authorized by statute for
the offense that resulted in such term of supervised release ... except that a
defendant whose term is revoked under this paragraph may not be required to
serve on any such revocation ... more than 2 years in prison if such offense is
a class C or D felony....

Majority Op. at 1215 (emphasis in Majority Opinion). The operative phrase is
"the term of supervised release authorized by statute for the offense that
resulted in such term of supervised release " (emphasis supplied), not the subset
of those words emphasized by the majority. Read in context the phrase, while
cumbersome, simply means the maximum amount of time a defendant could be placed on
supervised release-in this case a two-year term because the offense that
originally resulted in his supervised release was a Class C felony. 18 U.S.C. s
3583(e)(3). Substituting "a two-year term" for the arcane language of the
statute does not change its meaning, but makes it easier to read and demonstrates
that it is incapable of supporting the anomalous interpretation forced by the
majority's reading. It would permit the court to:

[r]evoke a term of supervised release, and require the defendant to serve in
prison all or part of [a two-year term] without credit for time previously
served on postrelease supervision, if the court ... finds by a preponderance of
the evidence that the defendant violated a condition of supervised release....

18 U.S.C. s 3583(e)(3). And there is more. Subsection (h) of the statute
refers to the revocation of supervisory release language of subsection (e) [quoted
above], calling it a "term of imprisonment," not a means of "serving his term of
supervised release in prison."

When a term of supervised release is revoked and the defendant is required to
serve a term of imprisonment, the court may include a requirement that the
defendant be placed on a term of supervised release after imprisonment. The
length of such a term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release.


18 U.S.C. s 3583(h) (emphasis added). When his supervised release was-quite
properly-terminated, Tsosie was subjected to a "term of imprisonment" and that
"term of imprisonment" was extended solely for alcohol treatment. The sentence
was contrary to law. 18 U.S.C. s 3582(a); 28 U.S.C. s 994(k).

The sentence imposed not only ignored the statutes, but the policy statements of
the sentencing guidelines as well. The United States Sentencing Commission
deliberately chose to treat a violation resulting from a defendant's failure to
follow the court-imposed conditions of probation or supervised release as a
separate wrong-"a breach of trust." USSG Ch. 7, Pt. A(3)(b). "[T]he sentence
imposed upon revocation [is] intended to sanction the violator for failing to
abide by the conditions of the court-ordered supervision, leaving the punishment
for any new criminal conduct to the court responsible for imposing the sentence
for that offense." Id. The purpose of a sentence of imprisonment imposed upon the
revocation of supervised release is no different than the purpose of imprisonment
imposed by an original sentence-to punish inappropriate behavior. The court is
not "converting" the location of a term of supervised release *1223 (Majority Op.
at 1216), it is revoking supervised release and "impos[ing] a term of imprisonment
" for breach of trust. USSG Ch. 7, Pt. A(2)(b) (emphasis added).

The different purposes served by imprisonment and supervised release are also
relevant to the analysis.FN5 "[I]mprisonment is not an appropriate means of
promoting correction or rehabilitation." 18 U.S.C. s 3582(a). On the other
hand, as the Supreme Court has noted, "Congress intended supervised release to
assist individuals in their transition to community life. Supervised release
fulfills rehabilitative ends, distinct from those served by incarceration."
United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000).
Each aspect of a sentence-imprisonment, probation, supervised release,
restitution, fine-serves a distinct purpose. This is not to say there can be no
overlap in addressing more than one purpose at the same time. However, to allow
the enlargement of a sentence of imprisonment solely FN6 for the purpose of
rehabilitation results in a judicial revision of congressional purpose found in 18
U.S.C. s 3582(a) and 28 U.S.C. s 994(k).

FN5. Policy Statement s 7B1.4 instructs on an imprisonment after revocation.
Application Notes 2 and 3 of the Commentary are the only provisions to
address circumstances where a departure may be appropriate. Neither
provision refers to rehabilitation as a basis for the enlargement of a
sentence of imprisonment upon revocation. Although the policy statement is
advisory rather than mandatory, the omission of rehabilitative
considerations for an upward departure is telling.

FN6. I read the statutes to prohibit the incarceration decision or the
length of sentence to be substantially influenced by rehabilitative or
treatment considerations, but we need not reach that issue since the
decision here was made solely for those reasons.


I would reverse and remand for re-sentencing consistent with the statutes.

C.A.10 (N.M.),2004.

U.S. v. Tsosie

376 F.3d 1210

END OF DOCUMENT