United States of America v. River Dean Walsh

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RIVER DEAN WALSH,
Defendant - Appellant.
No. 20-8074
(D.C. No. 2:20-CR-00017-ABJ-1)
(D. Wyo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
River Dean Walsh challenges the district court’s ruling that his federal sentence be
served consecutively to an unrelated existing state sentence. Though he agrees that
federal courts have general authority to impose their sentences consecutively to still-
active state sentences on unrelated charges, he argues that the district court did so here to
serve an impermissible purpose—to promote his correction and rehabilitation. Walsh
didn’t raise this objection in the district court, so we review under the plain-error
standard. Because Walsh fails to meet that standard’s stringent requirements, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 1, 2021
Christopher M. Wolpert
Clerk of Court
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BACKGROUND
In June 2020, a Wyoming state court sentenced Walsh to 30–60 months of
imprisonment on automobile-theft charges. Months later, after the federal court obtained
custody of Walsh to face a federal felon-in-possession-of-a-firearm charge, he pleaded
guilty and received a 27-month term of imprisonment.
Before Walsh’s federal sentencing, his counsel filed a sentencing memorandum.1
At the sentencing hearing, the court briefly reviewed the nature and timing of the state
and federal prosecutions. The court then mentioned that the pandemic had kept Walsh
from any opportunity to “participate meaningfully in any programming,” apparently
referencing treatment programs. R. Vol. 3 at 16.
Next, the parties agreed that Walsh had a total offense level of 12 and a criminal-
history category of V, which resulted in an advisory guideline range of 27–33 months of
imprisonment. Next, the court noted two disputed issues needing resolved: (1) whether to
grant Walsh’s motion for a downward variance, and (2) whether to run the federal
sentence consecutively or concurrently to the already-imposed state sentence. The court
asked for the parties’ respective positions.
Walsh’s attorney requested a two-level downward variance to an advisory range of
21–27 months of imprisonment to run concurrently to the existing state sentence. In
support, she emphasized that Walsh had been unable to “do any programming.” Id. at 22.
She stated that when Walsh “gets to the Bureau of Prisons, hopefully, he will be allowed
1 Walsh has not included this document in the record on appeal.
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to do some programming there.” Id. at 23. Later, she noted that “[h]e needs drug
treatment; he needs mental-health treatment, and right now he is not getting it.” Id.
Several times, she reiterated this to justify the requested downward variance.
The government agreed that “Mr. Walsh needs drug treatment.” Id. at 26. Despite
that need, the government noted that Walsh’s federal sentence wouldn’t be long enough
to qualify him for the Residential Drug Abuse Program (RDAP). The government stated
that “unfortunately, he will not have that ability to do that intense residential treatment in
prison, which is unfortunate because that is clearly what he needs[.]” Id. No one argued
for an upward variance that would enable Walsh to qualify for RDAP.
After hearing the arguments, the court “agreed with counsel that this defendant
needs programs to address his past use of controlled substances.” Id. at 31. Here, the
court was responding to Walsh’s view that “he can be released without treatment and
remain sober on his own as long as he releases to a different community.” Id. at 34. But
the court believed that “[h]e needs programming and support in any community where he
lives that he can go to immediately whenever there is a craving or a temptation to
use . . . .” Id. After reviewing Walsh’s continued criminal behavior, the court reiterated
that “this defendant would benefit from programming within the Federal Bureau of
Prisons.” Id.
Along this line, the court spoke these words: “I feel that this man’s life is so
important and that he will continue to benefit from programming that he can receive
within the Bureau of Prisons and the follow-on programming that he will receive through
supervised release, and, hopefully, he will develop a lifetime support system that will
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carry him on.” Id. at 35. Walsh reads this as the court saying that it would impose a
consecutive federal sentence to the existing state sentence so that he would receive
treatment in federal custody (the treatment while on supervised release obviously would
not require incarceration).
The court sentenced Walsh “to a term of 27 months in custody at the Bureau of
Prisons to be served consecutive to the [state sentence].” Id. Neither party objected
despite being given an opportunity to do so.2
DISCUSSION
On appeal, Walsh contends that the district court improperly imposed a
consecutive sentence as a “means of promoting correction and rehabilitation.” See 18
U.S.C. § 3582(a).3 Because Walsh didn’t raise this issue in the district court, we review
2 Apart from the consecutive-versus-concurrent question, the court as mentioned
imposed a low-end, 27-month sentence. It referenced the factors under 18 U.S.C.
§ 3553(a). Walsh never objected to this term of imprisonment or to the court’s
explanation of the sentence. On appeal, he argues that the district court needed to better
explain its reasoning for the term of imprisonment. The district court’s explanation
suffices. See United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008) (“In
sentencing [the defendant] within the advisory guidelines range, the district court
explained, ‘the sentence I am about to impose is the most reasonable sentence upon
consideration of all factors enumerated in 18 United States Code 3553.’ [This] one-
sentence explanation accompanying a within-guideline sentence—in the absence of the
need to address specific § 3553(a) arguments brought to the district court’s attention—
satisfies the district court’s duty to impose a procedurally reasonable sentence.” (citation
omitted)).
3 Along the same lines, the Act also instructs the Sentencing Commission to
“insure that the guidelines reflect the inappropriateness of imposing a sentence to a term
of imprisonment for the purpose of rehabilitating the defendant or providing the
defendant with needed educational or vocational training, medical care, or other
correctional treatment.” See 28 U.S.C. § 994(k).
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for plain error. See United States v. Thornton, 846 F.3d 1110, 1114 (10th Cir. 2017). To
prevail under this standard of review, Walsh has the burden to show (1) the district court
erred, (2) the error was plain, (3) the error prejudiced his substantial rights, and (4) the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Id.
Walsh agrees that a federal court may typically impose a consecutive sentence.
See 18 U.S.C. § 3854(a) (“Multiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run concurrently.”). But he
disputes that a court may do so for the disallowed purpose of achieving rehabilitation.
In Tapia v. United States, 564 U.S. 319 (2011), a district court imposed a high-
end, 51-month sentence on a defendant convicted of “smuggling unauthorized aliens into
the United States.” Id. at 321. The Supreme Court noted that the district court had
imposed the high-end sentence after “refer[ring] several times to Tapia’s need for drug
treatment, citing in particular the Bureau of Prison’s Residential Drug Abuse Program
(known as RDAP or the 500 Hour Drug Program).” Id. at 321–22. The Supreme Court
found that “the sentencing transcript suggests the possibility that Tapia’s sentence was
based on her rehabilitative needs.” Id. at 334. More specifically, it found that the record
showed that the district court “may have selected the length of the sentence to ensure that
Tapia could complete the 500 Hour Drug Program.” Id. Though a court may “discuss[]
the opportunities for rehabilitation within prison or the benefits of specific treatment or
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training programs,” the Supreme Court concluded that the district court had gone further.4
Id.
In Thornton, 846 F.3d 1110, we addressed whether a district court had “committed
procedural error by basing the length of Thornton’s sentence, in part, on the treatment
and vocational services he would receive in jail.” Id. at 1112. There, the district court
denied a downward variance partly because the defendant “needs enough time in prison
to get treatment and vocational benefits.” Id. (citation omitted). In fact, the district court
described this as the “overriding reason” for denying a downward variance. Id. at 1114.
We announced several principles that now govern our post-Tapia cases: (1) that any
imprisonment beyond what a defendant would have gotten absent rehabilitative reasons
violates Tapia, even imprisonment resulting from the denial of a downward variance, id.
at 1115; (2) that any alternative and permissible reasons for the sentence would not
validate any sentence partially based on rehabilitation, id. at 1115–16; (3) that Tapia
errors can occur even if the court makes no “specific link between the length of the
sentence and specific treatment programs or services in prison,” id. at 1116; and (4) that a
district court errs in imposing a prison sentence if “motivated, in part, by a desire to give
4 It wasn’t dispositive that the 36-month mandatory-minimum statutory sentence
would have qualified Tapia for the RDAP. Tapia, 564 U.S. at 337 (Sotomayor, J.,
concurring) (expressing skepticism that the “thoughtful District Judge imposed or
lengthened Tapia’s sentence to promote rehabilitation,” but acknowledging that his
“comments at sentencing were not perfectly clear.”).
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[a defendant] the benefits of treatment in prison,” even if the defendant himself or herself
raises the prospect of rehabilitation, id. at 1117.5
In United States v. Kelley, 757 F. App’x 684 (10th Cir. 2018), a defendant
appealed “the district court’s decision to run his 63-month federal sentence consecutively
to sentences in state prison for unrelated offenses.” Id. at 685. The issue was whether the
district court had imposed a consecutive sentence, at least in part, to promote the
defendant’s rehabilitation. Id. Kelley had failed to argue this point in the district court,
leaving us to plain-error review. Id. So in important respects, Walsh’s case tracks Kelley.
In explaining why it would impose the federal imprisonment consecutively to the
existing state sentences, the court gave two reasons: (1) that concurrent federal prison
time would likely expire before Kelley’s release from state prison, which would leave no
“punishment at all for the new criminal conduct,” id. at 686–87, and (2) that “[y]ou need
the programs that the Federal Bureau of Prisons can offer you. You need residential drug
abuse treatment [RDAP],” id. at 687.
We held that “even if the district court’s reference to rehabilitation was error,”
Kelley had “not shown a reasonable probability that his sentence was thereby increased.”
Id. at 685–86. In short, he failed to show that “compliance with Tapia would likely have
led to a shorter sentence.” Id. at 687 (quoting United States v. Tidzump, 841 F.3d 844,
847 (10th Cir. 2016)). We contrasted the sentence with those imposed in other cases in
5 Ultimately, we affirmed the sentence after concluding that the Tapia error was
not plain, because no binding case had then held that “Tapia does not require such a
direct connection between a treatment program and the length of the prison sentence[.]”
Thornton, 846 F.3d. at 1118.
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which the court “had indicated that it was tailoring the sentence to make the defendant
eligible for rehabilitative services. Kelley, 757 Fed. App’x at 688 (citing Tidzump, 841
F.3d at 847 (imposing a 31-month sentence so defendant would qualify for RDAP));
United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir. 2012) (imposing a sentence
double the top of the advisory range to qualify the defendant for RDAP); United States v.
Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011) (imposing the minimum sentence to
qualify the defendant for RDAP)).
In contrast, we noted that the court had sentenced Kelley to “the shortest term
recommended by the guidelines and followed the guidelines recommendation that the
sentence be consecutive to his state sentences.” Id. at 688. The same is true here. Walsh
fails plain error’s third prong requiring substantial prejudice for the same reason.6 See
United States v. Blackmon, 662 F.3d 981, 987 (10th Cir. 2011) (ruling that the defendant
failed to meet his burden show substantial prejudice, because the court would have to
speculate that he would have received a lesser sentence except for the alleged Tapia
error).
6 Further, we note that Walsh has failed to cite a Supreme Court or Tenth Circuit
case holding that imposing consecutive time as here would lengthen his sentence within
the meaning of Tapia, even if the court’s purpose were to secure federal treatment for the
defendant. We do not rule on that prong-two issue.
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CONCLUSION
The district court’s imposition of a consecutive sentence wasn’t plainly erroneous.
Accordingly, we AFFIRM the sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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