Wednesday, October 17, 2012

Revocation Sentence Improperly Enhanced For Rehabilitation Purposes

U.S. v. Mendiola, 2012 WL 4841278 (10/12/12) (N.M.) (Published) - This case holds that Tapia applies to sentencing following revocation of supervised release, overturning U.S. v. Tsosie, 376 F.3d 1210 (10th Cir. 2004). The 10th held the logic of Tapia---in particular the reliance on the fact that Congress did not give d. ct.s the power to order rehabilitation in prison---applied equally in the revocation context. Interestingly, the 10th found support in Judge Holloway's dissent in U.S. v. Collins, 461 Fed. App'x 807 (10th Cir. 2012), and in Judge O'Brien's dissent in Tsosie. The error was plain, given Judge Brack's repeated references to the defendant's need for a 24-month sentence for rehabilitation purposes and the fact that 3 other circuits have held Tapia applies to revocations. In light of the 6-12-month guideline range, there was a reasonable probability the judge would have given a lower sentence had he known of Tapia's application and the error seriously affected the fairness, integrity and public reputation of the proceedings. Judge Gorsuch concurred, emphasizing the language of ยง 3582(a) clearly prohibits what the judge did, concluding by saying: "Few things should give us more pause than the possibility of mistakenly sending to prison a man Congress has said should not be there."