U.S. v. Grant, No. 10-10245 (12-5-11) (Kleinfeld with Beezer and Graber).

The Supreme Court in Tapia held that rehabilitation, and specifically an opportunity for rehabilitation, cannot be considered in imposing imprisonment at the initial sentencing. This falls outside of 3553. What about at supervised release revocation? This case considers whether Tapia applies to imposing imprisonment upon a supervised release revocation. The 9th holds that it does. Upon a SR revocation, a court cannot consider rehabilitation in imposing imprisonment. This case involves a defendant who had several chances on SR and kept violating for drug violations. One of the last instances involved the defendant encountering his supervising officer at a California sushi restaurant (!). The officer probably thought something was fishy and asked the defendant if he had been drinking. The defendant, for goodness sake, said he had not had a drink. On a tip, the waiter confirmed that the defendant had ordered a sake. The defendant then failed a breathalyzer test. A violation was filed. At the SR disposition hearing, the court said he needed 24 months to afford the defendant an extended chance at rehabilitation. This consideration, concluded the 9th, is contrary to Tapia and the Supreme Court analysis that rehabilitation is not part of the statutory imprisonment calculus. The 9th recognizes that this may be difficult for the court, but the court cannot consider what imprisonment will do for rehab prospects. This is a BOP concern. This decision adds to a circuit conflict between the 1st and 9th versus the 5th.