United States of America v. Melissa Gallagher

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 4, 2013
Submitted May 14, 2013
Before
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3270
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MELISSA GALLAGHER,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 11 CR 910
Virginia Kendall, Judge.
O R D E R
After Melissa Gallagher violated several conditions of her supervised release, the
district court revoked her supervised release and sentenced her to twelve months in prison
to be followed by three years of supervised release. Gallagher appeals her sentence
contending that the district court violated Tapia v. United States, 131 S. Ct. 2382 (2011), by
lengthening her prison sentence to allow her to receive drug treatment during her
incarceration. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 9 --

No. 12-3270 Page 2
I. Factual Background
Gallagher pleaded guilty to producing false identification cards and was sentenced
to fifteen months in prison followed by thirty‐six months of supervised release. After
completing her prison term, Gallagher repeatedly violated the conditions of her supervised
release. She tested positive for an array of illegal drugs on numerous occasions. She also
failed to report for a number of her drug testing appointments and for daily methadone
medication to assist with her heroin addiction. Finally, she failed to attend various
counseling sessions. In a Special Report, her probation officer recommended that
Gallagher’s supervised release be revoked and that she be sentenced to twenty‐four months
in prison.
On June 30, 2012, the district court held a revocation hearing. The government
sought revocation and noted that Gallagher had displayed aggressive behavior towards her
probation officer. However, there was also extensive discussion regarding inpatient drug
and mental health treatment as an alternative to imprisonment. Ultimately, the district court
continued the revocation hearing so that Gallagher and her attorney could determine
whether she wished to contest or admit to the violations. Gallagher cites a remark made by
the district court to her that “this is a really serious addiction, and you’ve got some
obligations to people other than yourself.” The district court also repeatedly expressed
“significant concern” that Gallagher posed a safety risk to her young son.
On August 20, 2012, Gallagher appeared before the district court for the continued
revocation hearing. Her probation officer reported that Gallagher had been admitted to the
Abraxas Southwood treatment clinic. Initially, she participated in the clinic’s medical‐detox
program, but she was later transferred to the facility’s residential drug‐treatment program.
At one point, Gallagher tested positive for opiates. Her probation officer expressed concerns
that Gallagher might be obtaining drugs from her husband, and sought to move Gallagher
to the Salvation Army Community Confinement Center. Because Gallagher and the
government (albeit grudgingly) agreed to the probation officer’s proposal, 1 the district court
declined to send Gallagher to prison and instead modified the conditions of her supervised
release to require her “to serve 120 days at the Salvation Army Community Confinement
Center.” Gallagher cites the district court’s remark that she should appreciate what her
probation officer was doing for her because her probation officer could simply ask the court
to send Gallagher to prison where she would not have access to any drugs. The district
1 Gallagher agreed to the modification of her supervised release, but did not
formally admit to any of the violations at the August 20 hearing.

-- 2 of 9 --

No. 12-3270 Page 3
court also reiterated its concern about Gallagher’s son and informed her that this was her
last chance. At the request of Gallagher’s probation officer, the district court set a status
hearing for September 19, 2012.
At that status hearing, Gallagher’s probation officer informed the district court that
Gallagher had tested positive for PCP and had left the treatment center against medical
advice. Subsequently, she was admitted to a hospital and then transported to the Salvation
Army. But she was not permitted to stay because she tested positive for tuberculosis. After
she was released, Gallagher failed to show up for an intake appointment and two drug
tests. But she did meet with her probation officer and agreed to enter the Salvation Army
program. However, she again failed to enter the program on the agreed date because she
fell and injured herself. As of the status‐hearing date, Gallagher was not in any treatment
program.
The government sought revocation of Gallagher’s supervised release. Because she
now conceded that she had committed the violations alleged in the Petition to Revoke, the
Sentencing Guidelines called for a sentencing range of six to twelve months. Both the
government and Gallagher’s probation officer recommended a sentence of twenty‐four
months. The government explained that Gallagher needs “both treatment and incarceration,
to keep her away from the influences that have been getting at her for an extended period of
time.” Her probation officer explained that Gallagher would likely only be able to
participate in the Bureau of Prisons’ Residential Drug Treatment Program if her sentence
were at least twenty‐four months. In contrast, Gallagher’s counsel argued that a sentence in
the guideline range, preferably six months, would be sufficient. Her counsel contended that
such a sentence would allow her to remain clean, and that the Bureau of Prisons has drug
treatment programs for offenders serving sentences shorter than twenty‐four months.
Before announcing the sentence, the district court observed that “[u]nder the 3553
factors, I find that the history and characteristics of [Gallagher] are the most significant ones
to look at here.” Then, as Gallagher notes, the district court stated that Gallagher has “a
very, very serious drug addiction.” Next, the district court recounted Gallagher’s many
parole violations, and then said:
As far as the history and characteristics of the defendant, I’ll take into account
the most recent information for just information thatʹs relevant to the
revocation. You’re spiraling out of control. And you have a 5‐year‐old child at
home. . . . [W]hen we talked about the risk to the community, we have two
drug‐addicted parents with a 5‐year‐old child. And a mom who has had to be

-- 3 of 9 --

No. 12-3270 Page 4
involuntarily committed for mental health reasons. We have to get this
situation under control for that child. And we have to get your life out of —
under control. You are not admitting the problem, so you need to admit it.
The district court then sentenced Gallagher to twelve months in prison to be followed by
three years of supervised release. Gallagher draws our attention to the district court’s
subsequent remark:
And the whole time, I’m going to order treatment. I hope you will get it when
you’re in prison. But if anything, it will keep you away from the drugs and
from your husband, who seems to be a drug influence on you for the past
year, according to what I’ve been hearing. This is a serious problem, and you
need to get it under control to be a mom to that child. 2
After the district court announced Gallagher’s sentence and explained its rationale for
imposing the sentence, Gallagher’s counsel requested that the court recommend that the
Bureau of Prisons place Gallagher in a facility with a drug treatment program. Gallagher
points out that the district court stated, in response, “I’m going to recommend the drug
program to be the highest priority because that is what this woman needs.”
II. Discussion
On appeal, Gallagher contends that her sentence violates the rule announced in Tapia
v. United States, 131 S. Ct. 2382 (2011). Tapia holds that “a court may not impose or lengthen
a prison sentence to enable an offender to complete a treatment program or otherwise to
promote rehabilitation.” 3 131 S. Ct. at 2393. Although Tapia did not involve the revocation of
an offender’s supervised release, the government concedes that the rule announced in Tapia
extends to resentencings based on violations of supervised release. 4 Therefore, we assume
2 As the district court clarified shortly after making this statement, the
treatment order applied to both the prison sentence and the supervised release.
3 At oral argument, counsel for the government conceded that the government’s request for
a twenty-four-month sentence was improper and invited a Tapia sentencing error.
4 The government cites decisions from other circuits holding that Tapia applies to prison
sentences imposed for violations of supervised release. See United States v. Deen, 706 F.3d 760, 765–67
(6th Cir. 2013); United States v. Garza, 706 F.3d 655, 657–59 (5th Cir. 2013); United States v. Mendiola,
696 F.3d 1033, 1037–42 (10th Cir. 2012); United States v. Taylor, 679 F.3d 1005, 1006 (8th Cir. 2012);

-- 4 of 9 --

No. 12-3270 Page 5
without deciding that Tapia applies in the revocation context. The parties also agree that our
review is for plain error because Gallagher did not assert a Tapia objection at her
resentencing. 5 Therefore, we also assume without deciding that our review is for plain error.
“For there to be plain error, there must be error, the error must be clear or obvious, and the
error must affect the defendant’s substantial rights.” United States v. Winters, 695 F.3d 686,
689 (7th Cir. 2012).
Because any finding of plain error must be predicated on a finding of error, we must
determine whether the district court imposed or lengthened Gallagher’s sentence to enable
her to participate in a treatment program. In support of her position that her sentence
violates Tapia, Gallagher first points to two statements about her addiction and treatment
opportunities made by the district court at the June 30 and August 20 hearings, at which she
did not receive a prison sentence. Second, she contends that her sentence must be based on
an impermissible reason because (according to Gallagher) the district court did not address
any legitimate sentencing factors from 18 U.S.C. § 3553(a) when sentencing her to prison.
Third, she identifies three statements, made by the district court at her September 19
sentencing hearing, which she contends demonstrate that her sentence was lengthened to
enable her to receive treatment while in prison.
A. The District Court’s Statements at the June 30 and August 20 Hearings
As noted, Gallagher identifies two statements, made by the district court at the June
30 and August 20 hearings, which she believes tend to establish a Tapia error. First, at the
June 30 hearing, the district court admonished Gallagher that “this is a really serious
addiction, and you’ve got some obligations to people other than yourself.” Second, at the
August 20 hearing, the district court told Gallagher to appreciate her probation officer’s
efforts on her behalf because the court could just send her to prison “to make sure” that she
would not have access to drugs.
United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011); United States v. Molignaro, 649 F.3d 1, 5 (1st
Cir. 2011).
5 Again, the government cites decisions from other circuits holding that review is limited to
plain error where an offender fails to preserve a Tapia objection. See Garza, 706 F.3d at 662; United
States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012); Mendiola, 696 F.3d at 1036; United States v.
Lopez-Alfaro, No. 11-3743, 2012 WL 4513298, at *1 (3d Cir. Oct. 3, 2012); Taylor, 679 F.3d at 1007;
Grant, 664 F.3d at 279; see also Henderson v. United States, 133 S. Ct. 1121, 1125 (2013) (indicating that
Rule 52(b) applies where a Tapia objection is not preserved); Molignaro, 649 F.3d at 2 (implying that
plain error review would apply were the Tapia objection not preserved).

-- 5 of 9 --

No. 12-3270 Page 6
Because the district court elected not to imprison Gallagher at the June 30 or August
20 hearings, any statements made at these hearings likely would not reveal the court’s
reasons for subsequently imposing a prison sentence. But even if the statements Gallagher
identifies are treated as indicative of the district court’s rationale for ultimately imprisoning
her, we still perceive no Tapia error. The context of the first statement shows that the district
court was concerned that Gallagher’s addiction might result in harm to her young child. At
all three hearings, the district court repeatedly voiced its concern about the risk Gallagher
posed to her son. Incapacitating an offender in order to protect others is certainly a valid
basis for imposing a prison sentence. See 18 U.S.C. § 3553(a)(2)(C). Similarly, regarding the
second statement, incapacitating a criminal in order to keep her from committing further
crimes (such as using illegal drugs) is permissible. See United States v. Kubeczko, 660 F.3d 260,
262 (7th Cir. 2011) (“Nothing in the statute, or in the language or reasoning of Tapia,
suggests that there is any impropriety in lengthening a sentence because of
concern—whether based on mental illness, addiction, or anything else that may weaken a
person’s inhibitions against committing crimes—that the defendant is likely to commit
further crimes upon release . . . .”). Neither statement demonstrates that Gallagher’s prison
sentence was imposed in violation of Tapia.
Moreover, at the June 30 hearing, the district court focused on the possibility that
Gallagher could receive treatment as an alternative to a sentence of imprisonment. And at the
August 20 hearing, the district court elected not to imprison Gallagher, but decided instead
to modify the terms of her supervised released to require her to receive treatment at the
Salvation Army Community Confinement Center. Treatment and rehabilitation are
legitimate considerations in the context of imposing supervised release or modifying the
terms thereof. See Tapia, 131 S. Ct. at 2390 (“Thus, the [Sentencing Reform Act of 1984]
instructs courts, in deciding whether to impose probation or supervised release, to consider
whether an offender could benefit from training and treatment programs.”). Therefore, to
the extent the district court focused on Gallagher’s addiction or need for treatment at the
June 30 and August 20 hearings, it did nothing unusual or improper.
B. The Section 3553(a) Sentencing Factors
Gallagher also contends that the district court did not address any legitimate
sentencing factors from 18 U.S.C. § 3553(a), and that this failure shows that Gallagher’s
prison sentence was based solely on her need for drug treatment. But Gallagher’s claim that
the district court did not consider any of the statutory sentencing factors is contradicted by
the record. At the September 19 hearing, the district court cited Section 3553, and stated that
it thought Gallagher’s history and characteristics “are the most significant ones to look at

-- 6 of 9 --

No. 12-3270 Page 7
here.” 6 See 18 U.S.C. § 3553(a)(1). The district court also stated that Gallagher presented a
risk to the community because she was a risk to her young son. See id. at § 3553(a)(2)(C).
Similarly, the district court remarked that the sentence would keep Gallagher away from
drugs and from her husband, who appeared to be a bad drug influence on her. That is, the
sentence would prevent her from committing further drug crimes. Finally, the district court
stated that Gallagher was “not admitting the problem;” and a prison sentence does not
violate Tapia where it is imposed because the offender has “not demonstrated that he [is]
interested in rehabilitation.” Kubeczko, 660 F.3d at 262–63 (discussing United States v.
Lawrence, 402 F. App’x 699, 701 (3d Cir. 2010)); see also United States v. Perez, 858 F.2d 1272,
1275 (7th Cir. 1988) (“It is appropriate for the trial court to consider such factors as remorse,
a lack thereof, and future potential danger to society.”). Gallagher’s contention that the
district court did not consider any of the statutory sentencing factors is without merit.
Therefore, her argument that the alleged failure to consider these factors tends to establish a
Tapia error is not persuasive. See United States v. Blackmon, 662 F.3d 981, 986–88 (8th Cir.
2011) (finding no plain Tapia error although the district court did not cite Section 3553(a)
and only alluded to the statutory sentencing factors by discussed offender’s lengthy
criminal history and failure to cease violating the law).
C. The District Court’s Statements at the September 19 Hearing
Finally, Gallagher identifies three statements, made by the district court at the
September 19 hearing, which Gallagher contends demonstrate that her prison sentence runs
afoul of Tapia. First, Gallagher cites the remark made to her by the district court, shortly
before announcing the sentence, “Miss Gallagher, you have a very, very serious drug
addiction.” When read in context, we do not think this reference to Gallagher’s drug
addiction shows that the district court calculated her sentence in order to ensure that she
receive treatment while in prison. The district court’s statement was made as a prelude to
listing Gallagher’s many and repeated violations of her supervised release. And the district
court recounted these violations (which stemmed from her drug addiction) to substantiate
its finding that Gallagher was “spiraling out of control.” The record demonstrates that the
district court was concerned about Gallagher’s lack of control because of the risk of harmed
she posed to her young child. The context of the district court’s reference to Gallagher’s
drug addiction demonstrates that it was imposing a prison sentence in order to incapacitate
6 The district court did not recite each and every statutory sentencing factor. But such a
recitation is generally not required. See United States v. Reyes-Medina, 683 F.3d 837, 840 (7th Cir. 2012)
(“‘The district court need not explicitly discuss all of the factors in § 3553(a) . . . .’” (quoting United
States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006))).

-- 7 of 9 --

No. 12-3270 Page 8
Gallagher and, thereby, eliminate this risk. As noted above, this is a valid basis for imposing
a prison sentence. See 18 U.S.C. § 3553(a)(2)(C).
Second, Gallagher points to the district court’s remark, made immediately after the
sentence was announced:
And the whole time, I’m going to order treatment. I hope you will get it when
you’re in prison. But if anything, it will keep you away from the drugs and
from your husband, who seems to be a drug influence on you for the past
year, according to what I’ve been hearing. This is a serious problem, and you
need to get it under control to be a mom to that child.
Initially, we observe that the order for drug treatment covered both Gallagher’s prison
sentence and following term of supervised release. As explained above, there is nothing
improper about imposing a term of supervised release based on an offender’s need for
rehabilitation. And while the district court’s statement demonstrates that it sincerely hopes
that Gallagher receives treatment while in prison, the statement does not establish that the
district court imposed or lengthened Gallagher’s prison sentence in order to ensure that she
received treatment. 7 Rather, as with the district court’s prior remark, the context of this
statement shows that the court imposed a prison sentence in order to incapacitate Gallagher
both to keep her from committing further drug offenses and to protect her young child.
Indeed, even Gallagher’s counsel recognized that a prison sentence could afford Gallagher
an opportunity to “stay clean.”
Third, Gallagher relies upon the district court’s statement, made in response to her
counsel’s request that the court recommend that the Bureau of Prisons place Gallagher in a
facility with a drug treatment program: “I’m going to recommend the drug program to be
7 The government argues that Gallagher’s sentence could not possibly violate Tapia because
the district court declined to give a twenty-four-month sentence—which, according to Gallagher’s
probation officer, is the minimum sentence required for an offender to enter the Bureau of Prisons’
Residential Drug Treatment Program. By imposing a twelve-month sentence, the district court
clearly rejected the government and probation officer’s requests to impose a sentence which would
render Gallagher eligible for this drug treatment program. But this does not entirely resolve the
Tapia issue because Gallagher’s counsel represented to the district court that other treatment
programs were available for offenders serving shorter sentences. Counsel’s statements were not
contradicted by either the government or the probation officer. And the district court’s expression
of hope that Gallagher would receive treatment in prison indicates that it accepted her counsel’s
claim about the availability of prison treatment programs for offenders serving shorter sentences.

-- 8 of 9 --

No. 12-3270 Page 9
the highest priority because that is what this woman needs.” Statements that an offender
“needs” drug treatment, made by a sentencing court in the context of imposing a prison
sentence, can be problematic. See Tapia, 131 S. Ct. at 2392–93 (finding problematic the
sentencing court’s remarks that “[t]he sentence has to be sufficient . . . to provide needed
correctional treatment, and here I think the needed correctional treatment is the 500 Hour
Drug Program”). But Tapia does not categorically bar comments at sentencing about an
offender’s need for treatment. Id. at 2392 (“A court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits of specific treatment or training
programs. To the contrary, a court properly may address a person who is about to begin a
prison term about these important matters.”). Here, the district court’s statement that
Gallagher needs treatment was not made when the court was announcing or explaining the
rationale for her sentence. Rather, the statement was made after the sentence had been
announced and in response to Gallagher’s counsel’s request that the court recommend that
the Bureau of Prisons place Gallagher in a facility with a drug treatment program. Tapia
explicitly sanctions a sentencing court’s recommendation to “the [Bureau of Prisons] to
place an offender in a prison treatment program.” Id. at 2390–91, 2392. Therefore, we
conclude that the district court’s statements at the September 19 hearing do not implicate
Tapia.
III. Conclusion
Because the record demonstrates that the district court did not sentence Gallagher to
prison so that she could receive drug treatment or other rehabilitation, there is no error and,
consequently, there can be no plain error. Therefore, Gallagher’s sentence is AFFIRMED.

-- 9 of 9 --