Saturday, December 10, 2011

Case o' The Week: Grant Deeds -- Rehabilitation, Custody, and Supervised Release, United States v. Grant

"We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars. Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement." United States v. Grant, 2011 WL 6016182, *5 (9th Cir. Dec. 5, 2011), decision available here.

Just don't give that BOP "time-out" to "rehabilitate" a defendant on supervised release. . . Id.
Players: Good decision by Judge Kleinfeld, joined by Judges Beezer and Graber.

Facts: Grant got a pretty good sentence for relatively minor bank fraud. Id. Mistakes were made, on supervised release: drug and alcohol dirties and some mental health issues earned Grant three months of custody and a (second) roughly five-year stint of supervised release. Id.

Another round of violations came several months after his second release, but Grant’s violation sentence was held in abeyance. Id.

A few months later Grant ran into his Probation Officer in a sushi bar. Grant denied drinking, but a waiter snitched him out and reported Grant had bought a large glass of sake (Grant also blew a dirty test for alcohol). Id. The defendant skipped his drug test the next day. Id. Back on another Form 12 with a violation guideline range of 3-9 months, the court departed upwards to 24 months of custody. Id. The district court explained that it felt “under the unique and rather unusual circumstances here that a variance from the guidelines is warranted because it is imperative that he receive a significant enough term of incarceration that he is able to actually receive meaningful treatment and also to . . . help him break his cycle of abuse of substances.” Id. at *2. “The court sentenced Grant to more time in prison than he otherwise would have, not only to protect society while Grant was in jail, but also to protect both society and Grant after his release. The judge’s express purpose was to improve Grant’s ability to deal with the drug and alcohol problems that contributed to his recurrent criminal conduct.” Id. at *3.
Issue(s): “We address whether rehabilitation can be considered for purposes of imposing imprisonment upon revocation of supervised release.” Id. at *1. “The question before us is whether Tapia is limited to imprisonment at initial sentencing, or if it extends to imprisonment on revocation of supervised release.” Id. at *3.

Held: “We conclude that Tapia applies to imprisonment regardless of whether imprisonment is imposed at initial sentencing or on revocation.” Id. at *3.

Of Note: Grant is an interesting opinion. It is an important defense win, and puts the Ninth on the right side of a growing circuit split on whether rehabilitation can be the basis for custody on a supervised release violation. Id. at *5.

Judge Kleinfeld, however, is clearly sensitive to what the district judge was trying to do in this case – a fair reading of the facts suggests that Mr. Grant does have some real some dual diagnosis needs (though Reentry Court would be a far better solution than the BOP).

Moreover, Judge Kleinfeld candidly observes that a district judge may thinking about rehabilitation when imposing a sentence – but instructs judges not to say that’s the reason for a custodial term. Id. at *5 (“When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.”) Grant is an potent little illustration of a big problem with appellate sentencing review: while the Ninth can try to instruct a district court what not to do at sentencing, there’s a danger that district judges often simply learn what not to say, when a court reporter is around.

How to Use: Give Grant to your favorite probation officer, who views a custodial sentence for supervised release violations as an “opportunity” for your client to “dry out” and “get on track.” After Tapia and Grant, those tired “for the good of the defendant” chestnuts are not valid bases for custody on a Form 12 violation.

For Further Reading: Imagine this: after the Ninth Circuit holds for the government on a sentencing appeal, the Supreme Court takes cert. and reverses, chiding the Ninth to cut the defendant a break.

(Hey, it can happen. Tapia v. United States, 131 S.Ct. 2382 (2011)).
Last week Judge Reinhardt took up the Tapia case on remand from the Supreme Court, in a very good opinion that finds plain error and sends the case back for resentencing. Tapia, 2011 WL 6091308 (9th Cir. Dec. 8, 2011).

Tapia II is a welcome decision for plain error review, and a big win for San Diego Deputy Federal Defenders Michelle Betancourt and Doug Keller.

Image of child in time out from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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