FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 18, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-4032 (D.C. No. 2:08-CR-00560-TC-1) CURTIS FARLEY, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges. _________________________________
Defendant-Appellant Curtis Farley appeals the United States District Court for
the District of Utah’s imposition of a one-year and one-day term of imprisonment for
violations of supervised release. Farley asserts that, under the Supreme Court’s
decision in Tapia v. United States, 564 U.S. 319 (2011), the district court erred when
it imposed a custodial sentence based, in part, on his rehabilitative needs. We
disagree. The district court’s custodial sentence reflected its concern that releasing
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Farley to homelessness would endanger the community; the district court only
considered rehabilitation in the context of Farley’s supervised release. Accordingly,
exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. Background
This case arises from Farley’s repeated violations of his supervised release,
imposed in case number 08-CR-560. In 2009, Farley was sentenced to a 120-month
term of imprisonment, followed by a 300-month term of supervised release, for
possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). See ROA,
Vol. I at 14, 20. In June 2017, Farley began his first term of supervised release.
During this time, Farley was homeless. Over the course of the following year, Farley
violated his supervised release on multiple occasions. In January 2018 and again in
July 2018, Farley possessed sexually explicit materials and unauthorized internet
devices. And in April 2018, Farley committed a new crime by failing to register as a
sex offender. Farley’s failure to register gave rise to a second criminal case against
him—18-CR-34. In February 2019, Farley’s supervised release in 08-CR-560 was
revoked and he was sentenced to an 18-month term of imprisonment. Suppl. ROA at
8. That sentence was to run concurrently with another 18-month term of
imprisonment imposed in 18-CR-34. Id.; see also Aple. Suppl. Mot., Att. B at 2.
In August 2019, Farley began a second term of supervised release. This time,
Farley was released to a halfway house. Farley violated his supervised release at
least twice during his time at the halfway house. In December 2019, he possessed
sexually explicit materials and an unauthorized internet device. And in February
2 2020, Farley had unapproved contact with an individual under 18 years of age. In
April 2020, Farley’s placement at the halfway house ended and he was released as
homeless. During this second period of homelessness, Farley stopped receiving
sex-offender treatment. And in May 2020, Farley again violated his supervised
release by possessing sexually explicit materials and an unauthorized internet device.
In February 2021, Farley admitted guilt to six violations of his supervised release and
the district court imposed a term of imprisonment of “12 months plus one day with
credit for all time served in federal custody.” ROA, Vol. I at 32.
At Farley’s revocation hearing, all parties agreed that the advisory guidelines
range was “six to 12 months.” ROA, Vol. II at 18. At the beginning of the hearing,
the district court indicated that it was “thinking of imposing a sentence of 12 months,
and then making sure that Mr. Farley can be perhaps at the Residential Treatment
Center, and from there he can be released to do work, doctors’ appointments, et
cetera . . . .” Id. Farley’s counsel responded that “[t]he problem here is Mr. Farley’s
lack of residence and basically he is going to be homeless right now . . . .” Id.
Farley’s counsel also stated that a previous district court “was of the opinion that [it]
was ready to release Mr. Farley if [Farley and his counsel] could find a suitable
residence.” Id. at 18–19. At the time of the revocation hearing no such residence
could yet be identified.
The parties also discussed the possibility of placing Farley at a halfway house.
Farley’s counsel acknowledged that “[i]f the halfway house were available tomorrow
. . . that would be a good option.” Id. at 20. The government also indicated hope
3 that, if Farley were released to a halfway house in the Salt Lake City area, there
would be “a lot more resources and opportunity for [Farley] to prove himself as far as
making progress in treatment . . . .” Id. at 23. The government maintained that
immediate release was inappropriate, however, in light of “the nature of the
conviction” and Farley’s post-release conduct. Id. at 21. Probation agreed with the
parties that “it would be beneficial for [Farley] to go to the halfway house.” Id. at 24.
Probation cautioned, however, that it could not “guarantee that [Farley] will get bed
space at the halfway house due to COVID-19,” id., and that the halfway house was
“looking at July, August before any bed space is perceived to be available.” Id. at
25. In response, the district court inquired whether “if [it] were to place Mr. Farley
in custody for a year, minus any time he has already served . . . that might allow him
a better chance at getting into the halfway house.” Id. at 25–26. Probation agreed
with the district court’s assessment.
In response, Farley’s counsel repeated that “fashioning a sentence at 12
months . . . to allow for halfway house placement is not appropriate.” Id. at 26.
Counsel also stated that “[t]o impose the high-end guideline range in this case sort of
for rehabilitative purposes I think misses the mark and I would ask the Court not to
do that.” Id. at 27.
The district court informed Farley: “I want you to get somewhere . . . where
you are warm1 and where you are off the streets and where you don’t run so much
1 We again note here that Farley was sentenced in Utah in February. 4 risk of COVID. I don’t think the [homeless] shelter is a good place for you.” Id. at
28. In imposing a 12-month term of imprisonment, the district court explained:
Well, I have thought about all the information that I have read and that I have seen, and considering the thoughts of [the previous district court], I am going to place you in custody, Mr. Farley, for 12 months with credit for all time served. I want to get you off the streets and I want to keep you warm and I want to make sure that the public is protected. Id. at 29.
Farley filed a timely notice of appeal.
II. The Government’s Motion to Supplement the Record
On appeal, the government filed a motion to supplement the record with
documents filed in (1) 08-CR-560, the supervised release at issue in this appeal; and
(2) 18-CR-34, a separate case arising from Farley’s failure to register as a sex
offender. Farley objected only to the documents related to 18-CR-34, because
“[d]ocuments from an unrelated case do not address, even tangentially,” whether the
district court committed a Tapia error. Aplt. Resp. Mot. Suppl. at 2.
Federal Rule of Appellate Procedure 10(e)(2) states that “[i]f anything material
to either party is omitted from or misstated in the record by error or accident, the
omission or misstatement may be corrected and a supplemental record may be
certified and forwarded[.]” Rule 10(e) “allows a party to supplement the record on
appeal but does not grant a license to build a new record.” United States v. Kennedy,
225 F.3d 1187, 1191 (10th Cir. 2000) (internal quotations omitted). Thus, we
generally deny motions to supplement the record where the supplemental material
was not available to or considered by the district court. See, e.g., Allen v. Minnstar,
5 Inc., 8 F.3d 1470, 1475 (10th Cir. 1993) (denying motion to supplement the record
with “[p]ortions of [an expert witness’s] deposition not filed below or presented to
the district court”).
We grant the government’s motion. Notably, the district courts in both 08-
CR-560 and 18-CR-34 imposed concurrent 18-month terms of imprisonment, with
each judgment referencing the other. See Suppl. ROA at 8; Aple. Suppl. Mot. Att. B
at 2. The violation report produced for the revocation at issue in this appeal also
stated that “[i]n relation to [Farley’s] previous violation, he was convicted of Failure
to Register as a Sex Offender and sentenced to 18 months custody followed by no
term of supervised release.” ROA, Vol. III at 26. Further, even if Farley’s two cases
were not expressly intertwined, the documents from 18-CR-34 were available to the
district court at the time of the revocation hearing in 08-CR-560. Farley does not
dispute that the district court could have considered the supplemental documents as a
practical matter. Farley’s objection that the supplemental documents are not relevant
to our Tapia analysis is a merits question—not an objection to the record itself.
Thus, we have no concern that granting the government’s motion would improperly
“grant a license to build a new record.” Kennedy, 225 F.3d at 1191.2
2 We also note that, even if the government’s motion were improper under Rule 10(e), we may still exercise our discretion to take judicial notice of the documents filed in 18-CR-34. See United States v. Castellanos-Barba, 648 F.3d 1130, 1133 (10th Cir. 2011) (“[W]e have the authority to take judicial notice of ‘publicly filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand.’”) (quoting United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007)). 6 III. The District Court Did Not Abuse Its Discretion
The parties dispute whether Farley preserved his Tapia objection, and thus
whether we should review for abuse of discretion or plain-error. We need not
address the preservation issues in this case because, even accepting Farley’s
preservation arguments, the district court did not abuse its discretion. We agree with
Farley that it appears the district court imposed a sentence designed to facilitate his
placement at a halfway house and to avoid his homelessness. We disagree, however,
that such placement was motivated, even in part, by rehabilitative goals. Rather, the
record shows that the district court was concerned that the alternative—releasing
Farley to homelessness—posed a danger to both Farley and the community.
“[W]e review sentences for reasonableness under a deferential abuse-of-
discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214
(10th Cir. 2008). A district court abuses its discretion when it procedurally errs “in
calculating or explaining the sentence.” Id. In calculating a term of imprisonment,
Congress has instructed courts to “recogniz[e] that imprisonment is not an
appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a);
see also 28 U.S.C. § 994(k) (instructing the Sentencing Commission to ensure “that
the [Sentencing] 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”). Thus, in Tapia, the Supreme Court held that “[s]ection
3582(a) precludes sentencing courts from imposing or lengthening a prison term to
7 promote an offender’s rehabilitation.” 564 U.S. at 332. Tapia applies to terms of
imprisonment imposed for violations of supervised release. United States v.
Mendiola, 696 F.3d 1033, 1041–42 (10th Cir. 2012). Tapia does not apply, however,
to non-custodial sentences, including “setting the terms of supervised release.”
United States v. Naramor, 726 F.3d 1160, 1170 (10th Cir. 2013) (quoting United
States v. Cordery, 656 F.3d 1103, 1106 (10th Cir. 2011)).
In United States v. Tidzump, we reversed under Tapia because the district
court imposed a 31-month term of imprisonment after finding 31 months was
“probably the bottom number” that would allow the defendant to participate in the
Bureau of Prison’s Residential Drug Abuse Program (“RDAP”). 841 F.3d 844, 846
(10th Cir. 2016). We acknowledged that the district court “could not know for sure”
whether the defendant would ultimately be eligible to participate in RDAP, and that
the district court “acknowledged some uncertainty.” Id. at 847. Nevertheless, we
concluded that imposing a 31-month sentence left the defendant with “precisely the
minimum [requirements] for entry into the RDAP” and such timing was not mere
“coincidence.” Id.
So too here. The district court asked probation whether imposing a 12-month
sentence “might allow [Farley] a better chance at getting into the halfway house,”
which probation affirmed. ROA, Vol. II at 25–26. Even crediting the government’s
assertion that the district court could not “guarantee” Farley’s placement in a halfway
house, Aple. Br. at 29, such uncertainty does not foreclose a Tapia error. Further, the
timing between the opening up of bed space at the halfway house and Farley’s
8 expected release date is likely more than “coincidence.” Tidzump, 841 F.3d at 847.
Here, probation informed the district court that “the halfway house is looking at July,
August before any bed space is perceived to be available,” id. at 25, and Farley’s
12-month sentence resulted in a projected release date of July 1. Aplt. Br. at 14 n.4.
Thus, it seems likely, if not apparent, that the district court deliberately crafted a term
of imprisonment to facilitate Farley’s placement at a halfway house.
Yet, unlike Tidzump, Farley’s sentence was not “likely the minimum to allow
entry into the RDAP,” 841 F.3d at 847, or any other rehabilitative program available
during imprisonment. Rather, Farley’s sentence was the minimum to prevent
Farley’s homelessness upon his release. Thus, Farley’s Tapia objection fails for two
reasons.
First, the record does not show the district court found that Farley’s
homelessness would impede his rehabilitation; rather, the district court only found
that Farley’s homelessness increased the risk of recidivism and the danger to the
community. Throughout the hearing, the district court repeated its concerns that
releasing Farley to homelessness would pose a danger to the community. See, e.g.,
ROA, Vol. II at 21 (“Given the nature of his offense, Congress has made it very
clear, and in my personal opinion it is too, that Mr. Farley poses a danger to the
community and child pornography is particularly dangerous for the community. So I
have got to be thinking about that as well.”). The government also indicated that, in
light of Farley’s prior release violations, releasing Farley to homelessness would be
“inappropriate” because Farley would not be able to fulfill his “obligations” to the
9 district court. Id. at 22; see also id. at 23 (requesting Farley be released to a halfway
house “to be able to at least fulfill the obligations that he has to the court”). And
Farley’s counsel acknowledged that Farley “failed to comply [with the conditions of
his supervised release] because he changed his residence . . . but he was homeless.”
Id. at 27.
For similar reasons, the district court did not commit a Tapia error by
imposing a sentence to “get [Farley] off the streets and . . . to keep [him] warm and
. . . to make sure that the public is protected.” Id. at 29. To be sure, the parties
discussed the obstacles to Farley’s treatment if he were released to homelessness.
Yet, as the Supreme Court cautioned in Tapia itself, a district court “commits no
error by discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs.” 564 U.S. at 334 (emphasis added). Here, in
imposing its sentence, the district court only indicated that it considered Farley’s
homelessness in the context of “mak[ing] sure that the public is protected.” ROA,
Vol. II at 29. The district court’s concern was reasonable in light of Farley’s
repeated violations, including those during periods of homelessness. Thus, the
discussion of Farley’s homelessness did not result in a Tapia error. See United States
v. Thornton, 846 F.3d 1110, 1117 (10th Cir. 2017) (“Tapia does not bar discussion of
the consequences of in-prison treatment on a possible aggravating factor (e.g.,
community safety) in denying a downward variance; instead, it only precludes
10 lengthening a prison sentence for the purpose of providing an offender with
perceived rehabilitative benefits.”) (emphasis in original).3
Second, even if Farley’s sentence was deliberately crafted to ensure his access
to treatment, doing so would not violate § 3582(a) or Tapia because his custodial
sentence only facilitated post-release rehabilitation. Section 3582(a) requires district
courts to “recogniz[e] that imprisonment is not an appropriate means of promoting
correction and rehabilitation.” 18 U.S.C. § 3582(a). Tapia and its progeny make
clear this instruction is limited to “imprisonment.” In Tapia, the Supreme Court
explained that Congress did not intend imprisonment to be used as a means of
rehabilitation because courts lack authority to order defendants to participate in
“prison correctional programs.” 564 U.S. at 331. Further, the legislative history
indicates Congress’s skepticism that “rehabilitation can be induced reliably in a
prison setting.” Id. at 331–32. Yet, the Supreme Court recognized a court’s
authority to order a defendant to treatment as a condition of probation or supervised
release. Id. at 330. And the legislative history indicated that the “purpose of
rehabilitation . . . is still important in determining whether a sanction other than a
3 We recognize the closeness of distinguishing the district court’s proper concerns regarding community safety and recidivism with an improper consideration of rehabilitation. As one of our colleagues has previously noted, “whether one views the problem as a need for rehabilitation or a need to protect against recidivism may well depend only on the lens one is looking through.” United States v. Story, 635 F.3d 1241, 1249 (10th Cir. 2011) (Hartz, J., concurring); see also id. (“If no rehabilitation program is available, the judge may think that a longer sentence is appropriate to protect the public.”). Suffice to say, in this case, we are confident that the district court did not apply an inappropriate “lens.” 11 term of imprisonment is appropriate in a particular case.” Id. at 332 (emphasis in
original) (internal quotation omitted). Accordingly, courts remain free to “pursue the
goal of rehabilitation in sentencing . . . in setting the terms of supervised release.
Naramor, 726 F.3d at 1170 (quoting Cordery, 656 F.3d at 1106).
Here, nothing in the district court’s colloquy indicates that it viewed
imprisonment itself, as opposed to post-release residency at a halfway house, as
promoting Farley’s rehabilitation. Unlike other cases where we have identified Tapia
errors, the treatment program at issue here was not a prison program. See, e.g.,
Thornton, 846 F.3d at 1114–15 (Tapia error committed where district court found the
defendant “need[ed] enough time in prison to get treatment and vocational benefits”);
Tidzump, 841 F.3d at 847 (Tapia error committed where custodial sentence facilitated
eligibility for RDAP). The district court did not indicate that the inherent nature of
imprisonment would further Farley’s “penitence and spiritual renewal.” Tapia, 564
U.S. at 332. Nor did the district court indicate that imprisonment itself would
“restor[e] [Farley] to [his] useful and constructive place in society.” Aplt. Reply Br.
at 8 n.3. Accordingly, the district court adhered to Congress’s instruction to “not
think about prison as a way to rehabilitate an offender.” Tapia, 564 U.S. at 330
(emphasis added). The district court only thought about post-release supervision as a
way of rehabilitating Farley, and how to best implement the terms of such
supervision. Doing so was consistent with § 3582(a) and Tapia.
Farley asserts that his “term of imprisonment” includes post-release residency
at a halfway house. Aplt. Reply Br. at 13. Farley’s assertion is without merit.
12 Farley’s time at a halfway house would only occur after his release. See ROA, Vol. I
at 35 (ordering residence at a halfway house as a special condition of supervised
release). The cases Farley cites in his Reply Brief are inapposite. In United States v.
Ko, we recognized that “BOP has the authority to ‘designate the place of the
prisoner’s imprisonment,’” including a halfway house. 739 F.3d 558, 561 (10th Cir.
2014) (quoting 18 U.S.C. § 3621(b)). But it does not follow, as Farley asserts, that
living at a halfway house is always a “term of imprisonment.” Indeed, in this case,
Farley would only reside at a halfway house after serving his term of imprisonment;
thus, his residency at the halfway house and his term of imprisonment are mutually
exclusive. And in United States v. Sack, we only addressed whether a person
residing at a halfway house is “in custody.” 379 F.3d 1177, 1179 (10th Cir. 2004).
We did not address whether such residency is a “term of imprisonment.”
In short, Farley appeared before the district court for violations of his
supervised release following a period of homelessness. A prior district court
indicated that imprisonment might not be necessary, but only if Farley established a
stable housing situation. Farley failed to do so. Accordingly, a subsequent district
court, considering the prior district court’s views, determined that releasing Farley to
homelessness would endanger both Farley and the community. The district court
considered Farley’s rehabilitation only in the context of his supervised release after
serving his term of imprisonment.
13 Accordingly, we AFFIRM the district court’s sentence. We GRANT the
government’s motion to supplement the record. We DENY Farley’s motion to
expedite as moot.
Entered for the Court
Mary Beck Briscoe Circuit Judge