United States of America v. Rachel L. Kopp

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3172
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
R ACHEL L. KOPP,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 18‐cr‐00090 — James D. Peterson, Chief Judge.
____________________
A RGUED A PRIL 12, 2019 — D ECIDED A PRIL 23, 2019
____________________
Before FLAUM, EASTERBROOK , and S YKES , Circuit Judges.
FLAUM, Circuit Judge. Rachel L. Kopp has a history of sub‐
stance abuse and drug‐related convictions. During the sen‐
tencing hearing for the revocation of her supervised release,
the district court announced an 18‐month sentence; but then,
after learning from the probation officer that 18 months might
not allow sufficient time for Kopp to complete a residential
drug treatment program, the court increased the sentence to

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2 No. 18‐3172
20 months. Kopp appeals, arguing the district court improp‐
erly lengthened her sentence to promote rehabilitation in vio‐
lation of Tapia v. United States, 564 U.S. 319 (2011), and
18 U.S.C. § 3582(a). For the reasons below, we vacate the sen‐
tence and remand to the district court for resentencing.
I. Background
On May 23, 2018, the Bureau of Prisons (“BOP”) released
Kopp from prison in Waseca, Minnesota and ordered her to
report to the Rock Valley Community Program in Janesville,
Wisconsin for transitional services. Kopp disregarded that di‐
rective. Six days later, law enforcement arrested her. Ulti‐
mately, Kopp pleaded guilty to a one‐count indictment for es‐
caping the Attorney General’s custody in violation of
18 U.S.C. §§ 751(a) and 4082(a).
The district court held a sentencing hearing on September
27, 2018. After confirming that both sides had no objections to
the Presentence Investigation Report (“PSR”), the court
adopted the PSR’s factual findings and Guidelines applica‐
tion: Kopp’s total offense level was 7 and her criminal history
category was VI, so the range for the term of imprisonment
was 15 to 21 months. The government recommended a sen‐
tence within the Guidelines range. Kopp’s attorney requested
a 12‐month sentence.
To support the request for a shorter sentence, Kopp’s at‐
torney began by asserting that the bulk of Kopp’s criminal
history occurred when Kopp was in her teens and twenties—
Kopp was thirty years old at sentencing. The district court,
while describing Kopp’s criminal history as “low‐grade,” em‐
phasized that “there’s a ton of it.” Additionally, the court

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No. 18‐3172 3
opined that the “two fundamental drivers” of Kopp’s crimi‐
nal activity were trauma from her childhood and her drug ad‐
diction. This prompted Kopp’s attorney to transition to talk‐
ing about Kopp’s treatment history.
Kopp’s attorney noted that Kopp participated in the BOP’s
Residential Drug Abuse Program (“RDAP”) 1 in 2016, but
since that time, she had not had another opportunity for treat‐
ment. Again, the court offered a clarifying comment: “She
hasn’t had an opportunity for treatment because every time I
try to put her in a circumstance where she can get treatment,
unless she is, you know, in leg irons, she runs away….” The
court described its experience sentencing other offenders with
substance abuse disorders—how treatment does not always
work the first time, but some offenders have success after the
second cycle of treatment. Despite Kopp’s previous experi‐
ence with RDAP, the court hoped Kopp could still benefit
1 The BOP must make treatment available to prisoners who it deter‐
mines have “a treatable condition of substance addiction or abuse.”
18 U.S.C. § 3621(b). Accordingly, the BOP established the RDAP. See
28 C.F.R. § 550.53; U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program
Statement 5330.11: Psychology Treatment Programs (2009),
https://www.bop.gov/policy/progstat/5330_011.pdf [hereinafter Program
Statement 5330.11]. To gain admission into RDAP, an inmate must
(1) “have a verifiable substance use disorder”; (2) “sign an agreement ac‐
knowledging program responsibility”; and (3) be able to complete each of
the program’s components at the time he or she starts the program. 28
C.F.R. § 550.53(b). The program’s three components are: (1) the “[u]nit‐
based component”—“a course of activities … set apart from the general
prison population”; (2) “[f]ollow‐up services,” if time allows; and
(3) “Community Treatment Services.” Id. § 550.53(a). According to the
BOP’s Program Statement, an inmate typically needs 24 months to com‐
plete the entire RDAP program before his or her release from BOP cus‐
tody. Program Statement 5330.11, § 2.5.5.

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4 No. 18‐3172
from treatment. It remarked: “We’ve got to get her some more
treatment, and I’m going to try again.”
Next, the court asked Kopp’s attorney to talk about Kopp’s
plans after incarceration, sharing its concern that Kopp was in
a “vicious cycle.” Kopp’s attorney told the court that Kopp
had contacted a transitional living program, a sponsor
through Narcotics Anonymous, and an organization that of‐
fers addiction treatment. Then Kopp addressed the court di‐
rectly: She took responsibility for her actions, asked for “the
least amount of incarceration” possible, and said she was
“prepared to do things differently.” She recognized that she
needed to address the issues underlying her addiction and
stated that she intended to participate in counseling as part of
her recovery.
The court recalled similar statements Kopp made at a pre‐
vious revocation of supervised release hearing, observed that
her statements at the present hearing seemed like a “broken
record,” and asked Kopp what would be different this time
around. Kopp said she finally accepted that she has a drug
addiction, and she planned to stay away from her old com‐
munity and focus on getting treatment. The court encouraged
Kopp to work through her underlying issues, stay away from
drugs and people who use them, and use her intelligence to
build a better future.
Then, the court began discussing Kopp’s sentence. It ex‐
plained that the Guidelines range was “narrow,” but that
Kopp’s 12‐month request was “a little short.” After asking
Kopp about the sentence she was currently serving and learn‐
ing that Kopp was to receive a month of credit toward the sen‐
tence it was to impose that day, the court announced: “The
sentence that I’m going to impose is 18 months. It’s kind of in

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No. 18‐3172 5
the middle of the guideline, and I want to make sure with an
18‐month sentence, does that give Ms. Kopp time to partici‐
pate in an RDAP program?” The probation officer who pre‐
pared the PSR responded: “I think that’s probably, like, the
lowest end she could be at to participate.” Immediately after
that comment, the court said: “Okay. I’m going to make it 20
months then.” Kopp interjected: ”Can I just—RDAP is only
nine months.” The court responded: ”You have to get into it.
You’ve got to find a spot for it and everything like that, and I
do think it’s important for you, and so I’m going to make it 20
months….” The court also said that it “could be persuaded
that a sentence longer would be appropriate,” but reaffirmed
that “[Kopp’s] sentence will be 20 months.” Shortly thereafter,
the court imposed the conditions of supervised release and
asked if further justification of those conditions was neces‐
sary. Kopp’s attorney responded in the negative. After
“cover[ing] all the other formalities of the sentence,” the court
adjourned the hearing. The clerk entered the written judg‐
ment on September 28, 2018.
II. Discussion
The Sentencing Reform Act of 1984 enacted “sweeping re‐
forms” to federal criminal sentencing. Mistretta v. United
States, 488 U.S. 361, 365–66 (1989). Under the Act, a judge must
sentence a federal offender to either a fine, a term of proba‐
tion, or a term of imprisonment. 18 U.S.C. § 3551(b). In select‐
ing one of those options, the judge must “impose a sentence
sufficient, but not greater than necessary” to reflect the four
general purposes of sentencing: retribution, deterrence, inca‐
pacitation, and rehabilitation. Id. § 3553(a); Tapia, 564 U.S. at
325. But the Act requires judges to disregard certain purposes
depending on which type of sentence the judge is imposing.

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6 No. 18‐3172
Tapia, 564 U.S. at 325–26. For example, a judge may not con‐
sider retribution when imposing a term of supervised release.
18 U.S.C. § 3583(c); Tapia, 564 U.S. at 326. And, as relevant to
this appeal, a judge may not consider rehabilitation when im‐
posing a term of imprisonment. 18 U.S.C. § 3582(a); see also
Mistretta, 488 U.S. at 367 (explaining that the Act “reject[ed]
imprisonment as a means of promoting rehabilitation”); 28
U.S.C. § 994(k) (“The [Sentencing] Commission shall insure
that the guidelines reflect the inappropriateness of imposing
a sentence to a term of imprisonment for the purpose of reha‐
bilitating the defendant or providing the defendant with
needed educational or vocational training, medical care, or
other correctional treatment.”).
In Tapia v. United States, the Supreme Court considered
whether the Act prevented judges from considering the time
required to complete RDAP in deciding how long an of‐
fender’s term of imprisonment should be. 564 U.S. 319. After
reviewing the statutory background and language, the Court
held: “Section 3582(a) precludes sentencing courts from im‐
posing or lengthening a prison term to promote an offender’s
rehabilitation.” Id. at 332.
Kopp argues that the district court’s judgment runs afoul
of Tapia because the court added two months to her imprison‐
ment term to allow her to complete RDAP. The government
disagrees and further argues that Kopp should not be permit‐
ted to raise a Tapia objection for the first time on appeal.
A. Standard of Review
“Generally speaking, we review a district court’s applica‐
tion of the Sentencing Guidelines de novo and any underlying
factual findings for clear error.” United States v. Seals, 813 F.3d

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No. 18‐3172 7
1038, 1044 (7th Cir. 2016). Here, the government argues that
Kopp did not properly raise a Tapia claim below, so our re‐
view turns on whether Kopp waived or forfeited that issue.
“Waived issues cannot be reviewed, while forfeited ones are
reviewed for plain error.” Id. at 1045. A party waives an issue
when it “‘intentionally relinquishes or abandons a known
right,’” and a party forfeits an issue when it “fails to raise an
argument due to accident or neglect.” Id. at 1044–45 (quoting
United States v. Walton, 255 F.3d 437, 441 (7th Cir. 2001)).
The government contends that Kopp advocated for a term
of imprisonment long enough to allow her to complete RDAP
as part of her overall sentencing strategy to convince the court
that she was finally willing to confront her addiction. As such,
the government asserts that Kopp either intentionally relin‐
quished her right to bring a Tapia claim or invited the court to
make a Tapia error. We disagree.
Kopp expressed a desire to complete RDAP, but she also
sought to limit the amount of time she would have to spend
in prison. At the sentencing hearing, Kopp explicitly stated:
“Of course I’m hoping for the least amount of incarceration.”
And when the court proposed increasing her sentence from
18 to 20 months to ensure she could complete RDAP, Kopp
interrupted the court to make clear that she believed 9 months
would be sufficient. Although Kopp did not make a formal
Tapia objection, her comments to the court indicate that she
opposed the proposed increase of her sentence. Therefore,
there is no support for the government’s argument that Kopp
waived her right to challenge the district court’s decision to

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8 No. 18‐3172
lengthen her sentence for rehabilitation, much less that she in‐
vited the court to make a Tapia error.
It was, however, a mistake for Kopp’s attorney not to raise
a Tapia objection during the sentencing hearing. Due to this
forfeiture, we review for plain error.2 Under plain‐error re‐
view, Kopp must show that (1) there was error, (2) it was
plain, (3) it affected her substantial rights, and (4) it seriously
affected the fairness, integrity, or public reputation of the ju‐
dicial proceedings. Seals, 813 F.3d at 1045.
B. Sentencing Decision
The government maintains that the district court’s sen‐
tence was not plainly erroneous. In support of this position,
the government argues that the court discussed the appropri‐
ate § 3553(a) factors, only discussed treatment in light of
2 In her reply, Kopp characterizes the moment she interrupted the
court as her taking “exception” to the sentencing decision pursuant to Fed‐
eral Rule of Criminal Procedure 51. She argues that she did not have an
opportunity to object before the court imposed the sentence and therefore,
she is entitled to raise this issue on appeal. See United States v. Pennington,
908 F.3d 234, 238 (7th Cir. 2018) (“Federal Rule of Criminal Procedure 51(a)
provides that a party need not state an ‘exception’ to a ruling the court has
already made … to preserve her appellate rights.” (citation omitted)). We
disagree. After switching the sentence from 18 to 20 months, the court con‐
tinued to discuss the need for Kopp’s sentence and paused to accept con‐
cerns or comments before finalizing the sentence. There was ample oppor‐
tunity for Kopp or her attorney to raise an objection. Based on this record,
the absence of a formal Tapia objection leads us to review for plain error.
See United States v. Holman, 840 F.3d 347, 352–53 (7th Cir. 2016); see also
United States v. Lewis, 823 F.3d 1075, 1083–84 (7th Cir. 2016) (when a judge
announces a definitive sentencing decision, a defendant need not make an
objection to preserve the issue for appeal, but where a judge announces a
tentative sentencing decision and invites objections, a defendant’s failure
to object can amount to waiver or forfeiture).

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No. 18‐3172 9
Kopp’s request for it, and based the sentence on the need to
protect the public given that Kopp’s addiction might limit her
ability to refrain from criminal activity upon release. Viewed
that way, the government sees an analogy between this case
and our recent decision in United States v. Burrows, 905 F.3d
1061 (7th Cir. 2018).
But Burrows is easily distinguishable. There, we held the
district court did not commit a Tapia error because the court
only discussed the opportunities for rehabilitative programs
in prison; there was no indication that the court chose the
length of the defendant’s sentence to promote rehabilitation.
Id. at 1067. Rather, the district court “determined the length of
[the offender’s] sentence, in its words, ‘to address the serious‐
ness of the offense and also [the] concerns about [the of‐
fender’s] risk to recidivate and the need for general deter‐
rence.’” Id. at 1067–68 (second alteration in original) (quoting
the district court).
Here, by contrast, the court initially intended to give Kopp
an 18‐month sentence: “The sentence that I’m going to impose
is 18 months.” But before making that official, the court asked
if an 18‐month sentence would “give Ms. Kopp time to partic‐
ipate in an RDAP program?” When the probation officer ex‐
plained that 18 months was probably “the lowest end” of the
requisite amount of time to complete RDAP, the district court
immediately responded by adding two months to Kopp’s sen‐
tence: “Okay. I’m going to make it 20 months then.” The only
fact that changed between the moment the district court an‐
nounced an 18‐month sentence and the moment the district
court announced a 20‐month sentence was the court’s receipt
of the probation officer’s estimate as to the amount of time

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10 No. 18‐3172
necessary to allow RDAP participation. Such a shift in sen‐
tencing is precisely what Tapia and 18 U.S.C. § 3582(a) pro‐
hibit.
We are not persuaded by the government’s argument that
the court’s dismissal of Kopp’s interjection that RDAP only
takes 9 months, the court’s musing that it could have been
persuaded to make the sentence longer, or the court’s after‐
the‐fact recitation of reasons for the sentence were tailored to
its decision to impose a 20‐month—as opposed to an 18‐
month—sentence. The district court never explained why two
additional months were necessary. Comparing the infor‐
mation the court had while announcing an 18‐month sentence
with the information it had while announcing a 20‐month
sentence leads to the conclusion that the court imposed a 20‐
month sentence in order to guarantee Kopp’s ability to com‐
plete RDAP. That was plain error.
The government insists, nevertheless, that we should not
remand for resentencing because Kopp has not made any
showing that but for the error, the sentence would have been
different. The transcript of the sentencing hearing belies this
argument. If the district court had not made a Tapia error, it
would have imposed an 18‐month sentence. Consequently,
the district court must resentence Kopp.
III. Conclusion
For the foregoing reasons, we VACATE the sentence and
R EMAND for resentencing.

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