NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30244

Plaintiff-Appellee, D.C. No. 4:11-cr-00027-TMB-1 v.

SYNDA L. COLLINS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding

Argued and Submitted December 9, 2020 Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges.

After Synda Collins violated the terms of her supervised release, the district

court initially sentenced her to 24 months in prison. This court vacated Collins’s

sentence and remanded for resentencing because the district court impermissibly

focused on the seriousness of Collins’s new offense when imposing her revocation

sentence. United States v. Collins, 773 F. App’x 992 (9th Cir. 2019). The district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. court on remand sentenced Collins to 18 months in prison. Because the district court

committed a different error on remand, we vacate and remand for resentencing.

1. In resentencing Collins on remand, the district court found that a

“critically important factor[]” in “determining an appropriate sentence in this matter”

was “the need for the sentence to provide the defendant with needed correctional

treatment.” The district court also stated that “a period of incarceration would . . .

provide for Ms. Collins’ continued treatment for substance abuse.” Collins argues

that the district court improperly relied on her need for rehabilitation in imposing a

sentence of incarceration. Because Collins did not object to the sentence on this

ground in the district court, we review for plain error. United States v. Waknine, 543

F.3d 546, 551 (9th Cir. 2008). In this case, however, the government concedes that

the district court erred in considering rehabilitation in the resentencing, and we

agree.

The Supreme Court has held that for an initial sentence, 18 U.S.C. § 3582(a)

prohibits a court from “impos[ing] or lengthen[ing] a prison sentence to enable an

offender to complete a treatment program or otherwise to promote rehabilitation.”

Tapia v. United States, 564 U.S. 319, 335 (2011). This court later held that

“Tapia applies to imprisonment regardless of whether imprisonment is imposed at

initial sentencing or on revocation.” United States v. Grant, 664 F.3d 276, 280 (9th

Cir. 2011). As a result, 18 U.S.C. § 3583(e)—the statutory provision for modifying

2 or revoking supervised release—precludes sentencing courts from imposing or

lengthening a prison term to promote an offender’s rehabilitation when the offender

violates the terms of her supervised release. Id. at 282. The district court therefore

erred in considering rehabilitation when imposing a sentence of incarceration on

Collins.

We grant relief under the plain error standard if the qualifying error “affects

the defendant’s substantial rights” and “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Green, 940 F.3d 1038,

1044–45 (9th Cir. 2019). In the sentencing context, these inquiries merge into the

general inquiry of whether “the defendant can demonstrate a reasonable probability

that [s]he would have received a different sentence if the district court had not erred.”

Id. at 1045 (alterations and quotations omitted).

The government argues that Collins has not met this standard, but we disagree.

In resentencing Collins, the district court treated Collins’s rehabilitative needs as one

of three “critically important factors.” The district court’s 18-month sentence

exceeded the 4–10 month recommended range in the Sentencing Guidelines, and

was about twice as long as the sentence the government, presentencing report, and

defense counsel jointly recommended. On this record, there is thus a reasonable

probability that, without erroneously considering Collins’s rehabilitative needs, “the

district court would have exercised its discretion and arrived at a lower overall

3 sentence.” United States v. Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013). We must

therefore vacate Collins’s sentence and remand for resentencing.1

2. We reject Collins’s argument that the district court committed

additional error on remand by failing to adhere to this court’s instructions that it not

“rely upon the seriousness of the new criminal offense underlying revocation of

supervised release as a primary justification for imposing a particular revocation

sentence.” Collins, 773 Fed. App’x at 993 (citing United States v. Simtob, 485 F.3d

1058, 1063 (9th Cir. 2007); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir.

2006)). Based on our careful review of the record, we conclude that the district court

complied with this court’s mandate and our decisions in Simtob and Miqbel in

resentencing Collins.

3. We decline Collins’s request that we reassign this case to a different

district court judge. Without evidence of bias, of which there is none, reassignment

is reserved for “unusual circumstances.” United States v. Paul, 561 F.3d 970, 975

(9th Cir. 2009) (per curiam). Here the district court complied with this court’s

mandate, and the new error it committed was wholly distinct from the one that

prompted this court’s initial remand for resentencing. In addition, and further

counseling against reassignment, neither party brought the rehabilitation issue to the

1 Because we are vacating and remanding for resentencing, we do not reach Collins’s argument that an 18-month sentence is substantively unreasonable.

4 district court’s attention during the resentencing, even though the government now

concedes that the district court erred in this regard. While it is unfortunate that this

case has required two remands for resentencing, we remain confident that the district

court will resentence Collins appropriately under the law. We therefore do not

believe that reassignment is warranted “to preserve the appearance of justice.” Id.

Although the district court complied with this court’s mandate, we

nevertheless express our concern about certain actions the district court took on

remand. In particular, the district court should not have ordered the parties to engage

in supplemental briefing and colloquy on the question of whether this court’s first

remand was justified. Although we acknowledge the district court’s stated desire to

avoid repeating the error that led to this court’s prior remand, the district court should

not have involved the parties in its effort to question whether the record adequately

supported this court’s prior decision.

VACATED and REMANDED for resentencing.

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