Divided Court Affirms Large Upward Variance For Supervised Release Violation Eventhough Sentence was "Plain Error"

U.S. v. Collins, 2012 WL 1130640 (4/5/12) (N.M.) (unpub'd) - The majority assumes the d. ct. committed plain error in extending the defendant's prison term [41 months where the top of the range was 10 months] for a supervised release violation, in order to allow the defendant time to avail himself of sex offender treatment. But it finds the defendant did not show the d. ct. would have imposed a different sentence absent the error. The d. ct.'s "formulaic" reference to all the § 3553(a) factors, including the need for correctional treatment, did not matter. The d. ct. relied on the defendant's repeated failures to abide by his conditions and his danger to society.

Judge Holloway, importantly, explains why U.S. v. Tsosie, 376 F.3d 1210 (10th Cir. 2004), which held a d. ct. could lengthen a prison term to promote rehabilitation upon supervised release revocation, is no longer good law in light of Tapia. The logic of Tapia, in particular the point that district courts have no power to order rehabilitation in prison, undermined Tsosie. And, Judge Holloway determined, the d. ct. did rely on rehabilitation when it imposed the sentence, especially because the government sought the exact sentence imposed based on the need for the defendant to undergo sex offender treatment in prison. The 4th prong of the plain-error test was satisfied because allowing the sentence to stand suggests "courts may usurp Congress's authority to lay down the foundations of the sentencing process." Judge Holloway concluded he "respectfully but emphatically dissented."