The Honorable Lee H. Rosenthal, of the United States District Court for the… v. Gilliard 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August…

* The Honorable Lee H. Rosenthal, of the United States
District Court for the Southern District of Texas, sitting by
designation.
11-1088-cr
United States v. Gilliard
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Submitted: February 8, 2012 Decided: February 17, 2012) 10
11
Docket No. 11-1088-cr 12
13
14
U NITED S TATES OF A MERICA , 15
16
Appellee, 17
18
–v.– 19
20
T ROY G ILLIARD , AKA T ROY, 21
22
Defendant-Appellant. 23
24
25
26
Before: 27
W ESLEY , L OHIER , Circuit Judges, and R OSENTHAL , District Judge. *
28
29
Appeal from a judgment of the United States District 30
Court for the Southern District of New York (Sullivan, J.), 31
following Defendant’s guilty plea to conspiring to 32
distribute and possess with the intent to distribute heroin. 33
The district court sentenced Defendant principally to a term 34
of 96 months’ imprisonment. Defendant contends that the 35
above-Guidelines sentence was procedurally unreasonable 36
because the district court impermissibly based the sentence 37
on his rehabilitative needs. Defendant also challenges the 38
sentence as substantively unreasonable. We hold that the 39
district court did not impose the prison term to promote 40

-- 1 of 16 --

2
Defendant’s rehabilitative needs and that the court’s 1
discussion of rehabilitation during the sentencing 2
proceeding was permissible. We conclude that the sentence 3
was neither procedurally nor substantively unreasonable. 4
5
AFFIRMED. 6
7
8
9
Steven M. Statsinger, Federal Defenders of New 10
York, Inc., Appeals Bureau, New York, NY, for 11
Defendant-Appellant. 12
13
Niketh Velamoor, Iris Lan, Assistant United States 14
Attorneys, for Preet Bharara, United States 15
Attorney for the Southern District of New 16
York, New York, NY, for Appellee. 17
18
19
20
W ESLEY , Circuit Judge: 21
Defendant-Appellant Troy Gilliard appeals from a March 22
9, 2011 judgment of the United States District Court for the 23
Southern District of New York (Sullivan, J.), following his 24
guilty plea to conspiring to distribute and possess with the 25
intent to distribute heroin, in violation of 21 U.S.C. 26
§§ 841(b)(1)(C) and 846. The district court sentenced 27
Gilliard principally to a term of 96 months’ imprisonment. 28
Gilliard contends that the above-Guidelines sentence was 29
procedurally unreasonable in light of Tapia v. United 30
States, 131 S. Ct. 2382 (2011), because the district court 31
impermissibly based the sentence, at least in part, on his 32

-- 2 of 16 --

3
rehabilitative needs. We disagree and conclude, based on 1
our review of the record, that the district court did not 2
impose the prison term to promote Gilliard’s rehabilitative 3
needs and that the court’s discussion of rehabilitation 4
during the sentencing proceeding was permissible. We also 5
disagree with Gilliard’s contention that the sentence was 6
substantively unreasonable. Accordingly, we affirm the 7
sentence imposed by the district court. 8
In July 2010, Gilliard was arrested after a series of 9
authorized communication intercepts confirmed that he was 10
involved in heroin trafficking. On November 12, 2010, 11
Gilliard pled guilty to conspiring to distribute and possess 12
with the intent to distribute heroin, in violation of 21 13
U.S.C. §§ 841(b)(1)(C) and 846. Under the plea agreement, 14
the parties stipulated that the calculated Sentencing 15
Guidelines range was 57 to 71 months’ imprisonment. 16
In Gilliard’s Presentence Report (“PSR”), the Probation 17
Office made the same calculation. In arriving at that 18
calculation, the PSR set forth Gilliard’s troubled past. He 19
had New York state convictions for grand larceny and bail 20
jumping, and a federal conviction for money laundering 21
(related to his involvement in distributing prescription 22

-- 3 of 16 --

4
drugs), for which he was sentenced to 100 months’ 1
imprisonment. Gilliard also had additional prior 2
convictions for escape, assault, and possession of a 3
controlled substance, each resulting in either a prison 4
sentence or fine. Moreover, Gilliard violated the terms of 5
his supervised release on multiple occasions. Most notably, 6
Gilliard committed the instant offense while on supervised 7
release. The Probation Office ultimately recommended a 8
sentence of 65 months’ imprisonment. 9
Gilliard argued in his sentencing submission that 57 10
months would be sufficient, asserting principally that his 11
involvement in narcotics trafficking stemmed from 12
debilitating medical issues that led him to self-medicate 13
and to sell narcotics. The government responded that a 14
sentence within the advisory Guidelines range of 57 to 71 15
months was appropriate, given that the instant offense 16
represented Gilliard’s eighth criminal conviction and second 17
narcotics-related federal conviction. 18
At the sentencing proceeding, the district court also 19
calculated the applicable Guidelines range to be 57 to 71 20
months and confirmed that neither party had any objections 21
to the calculation. In response to defense counsel’s 22

-- 4 of 16 --

5
confirmation that Gilliard was asking for a Guidelines 1
sentence, the district court explained that it could not 2
reconcile Gilliard’s health struggles stemming from a car 3
accident and his ensuing efforts to self-medicate with his 4
prior crimes which preceded and continued after the 5
accident. 6
After providing Gilliard an opportunity to address the 7
court, the district court focused on several sentencing 8
factors in turn. With respect to Gilliard’s “extensive 9
criminal history,” the district court took into account the 10
federal conviction for money laundering—which related to 11
drug dealing—and Gilliard’s failed attempts to comply with 12
the terms of supervised release. The district court again 13
was skeptical of the connection between Gilliard’s efforts 14
to self-medicate and the crime at issue, noting that many 15
people with pain do not resort to selling heroin. Turning 16
to “the facts and circumstances of the crime,” the district 17
court described the seriousness of the crime of conspiring 18
to sell heroin and suggested that the amount of drugs 19
attributed to Gilliard was relatively small compared to the 20
amount of drugs actually involved. The district court then 21
addressed the goal of specific deterrence, stating that it 22

-- 5 of 16 --

6
sought to impose an appropriate sentence to prevent Gilliard 1
from committing similar crimes in the future. 2
Finally, the district court addressed Gilliard’s own 3
needs while in custody by noting: 4
I think you obviously had a substance abuse problem. 5
You obviously also have medical issues that need to 6
be dealt with. You also have psychiatric issues 7
that need to be dealt with and have been dealt with 8
sort of sporadically over a number of years. But 9
those are important things. And it’s important, as 10
[defense counsel] has requested, that you be 11
sentenced in such a way that you are able to address 12
those problems; that you have access to facilities 13
and care that will enable you to deal with these 14
problems. So that’s something, obviously, I take 15
very, very seriously, and will, in fashioning my 16
sentence. 17
18
A 124. 19
Before imposing the sentence, the district court 20
explained that all the arguments made by defense counsel in 21
support of a lower sentence were “outweighed by what [the 22
court] consider[ed] to be the high, high likelihood of 23
recidivism and the serious nature of the crime committed and 24
the crimes committed in the past.” A 125. The district 25
court concluded that an above-Guidelines sentence was 26
warranted. Although it had contemplated a 10-year sentence, 27
the district court ultimately decided that an 8-year 28
sentence was appropriate “in light of everything [the court 29

-- 6 of 16 --

7
had] talked about.” A 125-26. After imposing a term of 96 1
months’ imprisonment, the district court stated its intent 2
to recommend to the Bureau of Prisons (“BOP”) that Gilliard 3
be placed close to family and in a facility with effective 4
drug treatment programs. 5
We review a district court’s sentence for 6
reasonableness. See, e.g., United States v. Booker, 543 7
U.S. 220, 261-62 (2005). Under this “deferential abuse-of- 8
discretion standard,” we first consider whether the district 9
court committed procedural error. United States v. Cavera, 10
550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal 11
quotation marks omitted). A district court “errs 12
procedurally if it does not consider the § 3553(a) factors, 13
or rests its sentence on a clearly erroneous finding of 14
fact.” Id. at 190. 15
Gilliard argues that the sentence was procedurally 16
unreasonable because the district court violated 18 U.S.C. 17
§ 3582(a) by imposing a term of imprisonment to promote his 18
rehabilitative needs. As a preliminary matter, we note that 19
Gilliard did not raise this argument before the district 20
court, and thus it would normally be subject to plain error 21
review. See United States v. Villafuerte, 502 F.3d 204, 208 22

-- 7 of 16 --

8
(2d Cir. 2007). In cases such as this one, however, where 1
the claim is based on an intervening Supreme Court decision, 2
this Circuit has previously applied a “modified” plain error 3
review, which requires the government to prove that the 4
error was harmless. United States v. Needham, 604 F.3d 673, 5
678 (2d Cir. 2010). Although it is unclear whether this 6
standard continues to apply, see id., we need not decide 7
between the two standards because under either, we conclude 8
that the district court committed no error in light of the 9
Supreme Court’s decision in Tapia. 10
In Tapia, the Supreme Court held that 18 U.S.C. 11
§ 3582(a) “precludes sentencing courts from imposing or 12
lengthening a prison term to promote an offender’s 13
rehabilitation,” but allows the court to discuss 14
“opportunities for rehabilitation within prison or the 15
benefits of specific treatment or training programs.” 131 16
S. Ct. at 2391-92. The Court relied on the text of 17
§ 3582(a), which provides: 18
The court, in determining whether to impose a term 19
of imprisonment, and, if a term of imprisonment is 20
to be imposed, in determining the length of the 21
term, shall consider the factors set forth in [18 22
U.S.C. § 3553(a)] to the extent that they are 23
applicable, recognizing that imprisonment is not an 24
appropriate means of promoting correction and 25
rehabilitation. In determining whether to make a 26

-- 8 of 16 --

9
recommendation concerning the type of prison 1
facility appropriate for the defendant, the court 2
shall consider any pertinent policy statements 3
issued by the Sentencing Commission pursuant to 28 4
U.S.C. 994(a)(2). 5
6
18 U.S.C. § 3582(a) (emphasis added). In light of the plain 7
language of the statute, the Court explained, “when 8
sentencing an offender to prison, the court shall consider 9
all the purposes of punishment except rehabilitation—because 10
imprisonment is not an appropriate means of pursuing that 11
goal.” Tapia, 131 S. Ct. at 2389. The Court also reasoned 12
that because § 3582(a) allows a court to make 13
recommendations concerning rehabilitation, the district 14
court “did nothing wrong . . . in trying to get [the 15
defendant] into an effective drug treatment program.” Id. 16
at 2392. 17
But the Court concluded, based on excerpts from the 18
sentencing transcript, that the district court may have 19
selected the length of the sentence to ensure that the 20
defendant could complete a 500-hour drug treatment program. 21
Id. at 2392-93. Most notably, the district court explained 22
that “[t]he sentence has to be sufficient to provide needed 23
correctional treatment,” and that the defendant should be 24
“in long enough to get the 500 Hour Drug Program.” Id. at 25

-- 9 of 16 --

1 Justice Sotomayor, joined by Justice Alito, concurred to
express her skepticism that the district court imposed or
lengthened the defendant’s sentence to promote rehabilitation.
Tapia, 131 S. Ct. at 2393-94 (Sotomayor, J., concurring). She
noted that the district court carefully reviewed the sentencing
factors set forth in § 3553(a) and offered two reasons for
choosing the sentence: the need for drug treatment and
deterrence. Id. at 2393. With respect to the latter reason, the
district court highlighted the defendant’s criminal history and
criminal conduct while released on bail. Id. at 2393-94.
Notwithstanding her skepticism, Justice Sotomayor concluded that
she could not be certain that the district court did not lengthen
the defendant’s sentence to promote rehabilitation in violation
of § 3582(a), and thus agreed with the Court’s disposition of the
case. Id. at 2394.
10
2385. These statements, according to the Court, suggested 1
that the district court did more than what was permissible 2
under § 3582(a). 1 Id. at 2393. 3
Gilliard contends that the district court erred in 4
considering Gilliard’s “own needs while in custody” in 5
imposing the sentence. Gilliard focuses on two statements 6
made by the district court to argue that the sentence was 7
unlawfully imposed in light of Tapia. First, the district 8
court explained that it was “important, as [defense counsel] 9
has requested, that [Gilliard] be sentenced in such a way 10
that [he is] able to address those [substance abuse, 11
medical, and psychiatric] problems.” A 124. Second, the 12
district court concluded that eight years “is the 13
appropriate sentence in light of everything [the judge had] 14
talked about.” A 125-26. 15

-- 10 of 16 --

11
Unlike in Tapia, the record here does not suggest that 1
the length of Gilliard’s sentence was based on the district 2
court’s consideration of his rehabilitative needs. 3
Instead, the district court permissibly applied the 4
applicable sentencing factors under § 3553(a), addressing 5
(1) Gilliard’s extensive criminal history and failures to 6
comply with the terms of his supervised release; (2) the 7
facts and circumstances of Gilliard’s drug-related crime; 8
and (3) the goal of deterrence and Gilliard’s high 9
likelihood of recidivism. 10
The sentencing in Tapia was improper because the 11
district court explicitly stated that the defendant needed a 12
sentence long enough so that she could participate in the 13
500-hour drug treatment program. Here, there is no 14
indication that the district court tied the length of the 15
sentence to any treatment Gilliard would receive. To the 16
contrary, whenever the district court discussed Gilliard’s 17
rehabilitative needs, it did so in the context of 18
recommending to the BOP appropriate treatment programs he 19
should receive while in custody—not with regard to whether 20
he should spend more time in prison for treatment purposes. 21
The district court’s recommendations—including that Gilliard 22

-- 11 of 16 --

12
have access to facilities and care that would enable him to 1
deal with his problems—were well within what the Supreme 2
Court deemed permissible in Tapia. See Tapia 131 S. Ct. at 3
2392. 4
Our conclusion is consistent with our recent 5
application of Tapia, as well as the decisions of several 6
other circuits finding that, notwithstanding discussion of 7
rehabilitation in the record, there was no error where the 8
sentence length was based on permissible considerations, 9
such as criminal history, deterrence, and public protection. 10
See United States v. Magner, No. 11-0751-cr, 2012 WL 206013, 11
at *2 (2d Cir. Jan. 25, 2012); see also United States v. 12
Tolbert, ---F.3d----, 2012 WL 413806, at *5 (6th Cir. 2012); 13
United States v. Blackmon, 662 F.3d 981, 987 (8th Cir. 14
2011); United States v. Cardenas-Mireles, No. 11-2138, 2011 15
WL 6394280, at *3 (10th Cir. Dec. 21, 2011); United States 16
v. Gregg, No. 11-12144, 2011 WL 5248165, at *1 (11th Cir. 17
Nov. 3, 2011). 18
To be sure, our sister circuits in several other recent 19
cases have found error where the record revealed that the 20
defendant’s rehabilitative needs influenced the length of 21
imprisonment. In United States v. Cordery, 656 F.3d 1103 22

-- 12 of 16 --

13
(10th Cir. 2011), the Tenth Circuit found error in the 1
sentence when the district court commented that, after 2
taking into account the time that the defendant had already 3
served, the defendant “need[ed] a sentence of at least 56 4
months to be able to successfully complete that [treatment] 5
program together with mental health counseling.” Id. at 6
1105. In United States v. Himes, 439 F. App’x 272 (4th Cir. 7
2011), the Fourth Circuit held that the district court 8
impermissibly considered the defendant’s need for 9
rehabilitation when the district court noted that an 10
increased sentence of 34 months would “provide enough time 11
for [the defendant] to be admitted to the [500-hour 12
residential drug] program and complete that program.” Id. 13
at 274-75. Finally, in United States v. Kubeczko, 660 F.3d 14
260 (7th Cir. 2011), the Seventh Circuit held that the 15
defendant was entitled to resentencing after the district 16
court explained that “[a] stay in the Bureau of Prisons of a 17
significant length [was] necessary in order for [the 18
defendant] to get the Bureau of Prisons’ inpatient treatment 19
program.” Id. at 261. 20
A common theme exists between Tapia and those cases in 21
which our sister circuits found error—in all four cases, the 22

-- 13 of 16 --

14
sentencing judge explicitly tied the need to impose a 1
sentence of particular length to the defendant’s ability to 2
participate in a drug treatment program. That connection is 3
missing here. Rather, the record indicates that Gilliard’s 4
sentence was based on, among other permissible reasons, his 5
extensive criminal history. The district court discussed 6
Gilliard’s rehabilitation only in the context of making its 7
recommendations to the BOP, and in so doing, did no more 8
than what was deemed permissible in Tapia. Accordingly, 9
Gilliard’s claim of procedural unreasonableness fails. 10
Gilliard also challenges the substantive 11
reasonableness of his sentence. In reviewing that claim, we 12
“take into account the totality of the circumstances, giving 13
due deference to the sentencing judge’s exercise of 14
discretion, and bearing in mind the institutional advantages 15
of district courts.” Cavera, 550 F.3d at 190. “[W]e will 16
not substitute our own judgment for the district court’s on 17
the question of what is sufficient to meet the § 3553(a) 18
considerations in any particular case.” Id. at 189. 19
Rather, we will “set aside a district court’s substantive 20
determination only in exceptional cases where the trial 21
court’s decision ‘cannot be located within the range of 22

-- 14 of 16 --

15
permissible decisions.’” Id. (quoting United States v. 1
Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). 2
Gilliard contends that his sentence was substantively 3
unreasonable because the district court gave too much weight 4
to his criminal history and the offense conduct itself. 5
Gilliard also argues that the district court undervalued his 6
poor mental and physical health and the relationship between 7
his substance abuse problem and his criminal conduct. We 8
disagree. 9
The district court properly considered, and was well 10
within its discretion to give great weight to, (1) 11
Gilliard’s extensive criminal history and failed attempts to 12
comply with terms of his supervised release; (2) the facts 13
and circumstances of his crime; and (3) his high likelihood 14
of recidivism and the need to deter him from committing 15
future crimes. Moreover, the district court thoroughly 16
considered Gilliard’s personal circumstances and adequately 17
explained why it could not reconcile them with his prior 18
crimes and the instant offense. We find no reason to second 19
guess the weight (or lack thereof) that the district court 20
accorded to these factors. See United States v. Fernandez, 21
443 F.3d 19, 34 (2d Cir. 2006); see also Cavera, 550 F.3d at 22

-- 15 of 16 --

16
191. The district court did not err in determining that 1
Gilliard’s personal circumstances were outweighed by the 2
high likelihood of recidivism and the serious nature of his 3
crimes. 4
Taking into account the totality of the circumstances, 5
the 96-month term of imprisonment was not “shockingly high 6
. . . or otherwise unsupportable as a matter of law.” 7
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 8
Thus, the sentence was substantively reasonable. 9
For the foregoing reasons, the judgment of the district 10
court is hereby AFFIRMED. 11

-- 16 of 16 --