Waiver of Tapia-Based Sentencing Claims Through Invited Error in United States v. Allante R. Brown

Introduction

In United States v. Allante Ramone Brown, 6th Cir. No. 23-6029/6034 (May 5, 2025), the Sixth Circuit considered whether a district court’s references to rehabilitation in announcing consecutive prison terms violated the Sentencing Reform Act as interpreted in Tapia v. United States, 564 U.S. 319 (2011). Allante Brown, on supervised release after a prior felony firearms conviction, was stopped in 2021 on suspicion of drug possession. A search produced fentanyl, leading to a supervised-release revocation and a new federal indictment for possession with intent to distribute a heroin/fentanyl mixture. At a joint hearing, the district judge revoked Brown’s supervised release, imposed a 24-month revocation sentence, and then imposed a consecutive 75-month term for the new conviction. Brown appealed, claiming “procedural error” under Tapia because the court allegedly lengthened his term to promote rehabilitation. The Sixth Circuit affirmed, holding that any Tapia infraction was invited error—defense counsel had expressly asked for consecutive sentences to ensure Brown’s access to Bureau of Prisons programs and treatment.

Summary of the Judgment

The Sixth Circuit affirmed the district court’s consecutive sentences. It assumed arguendo that referencing rehabilitation as a sentencing rationale could breach Tapia’s ban on imposing or extending imprisonment to promote post-incarceration reform. However, because Brown’s own counsel had repeatedly urged the judge to impose consecutive terms so that Brown “can have served out the time” and “take advantage of the resources” and treatment programs, any Tapia error was invited and therefore waived. The court declined to review the claim for plain error (and found no manifest injustice), and it also declined to address Brown’s ineffective-assistance claim on direct appeal, leaving that avenue to a possible § 2255 motion.

Analysis

Precedents Cited

• Tapia v. United States, 564 U.S. 319 (2011): Held that the Sentencing Reform Act precludes a court from imposing or lengthening a prison term for the purpose of rehabilitation, though courts may discuss in-prison rehabilitative programs.
• United States v. Deen, 706 F.3d 760 (6th Cir. 2013): Clarified that mere discussion of rehabilitative opportunities does not automatically trigger reversal under Tapia.
• United States v. Krul, 774 F.3d 371 (6th Cir. 2014): Held that reversal requires an identifiable basis that rehabilitation “imposed or lengthened” the sentence.
• United States v. Adams, 873 F.3d 512 (6th Cir. 2017): Defined when a Tapia error is “identifiable,” distinguishing permissible comments from impermissible ones.
• United States v. Parrish, 915 F.3d 1043 (6th Cir. 2019) & United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018): Set out standards for procedural reasonableness under § 3553(a).
• United States v. Carter, 89 F.4th 565 (6th Cir. 2023): Applied invited-error doctrine to sentencing, holding that a party may not complain on appeal of an error it invited at trial.
• United States v. Montgomery, 998 F.3d 693 (6th Cir. 2021): Considered manifest injustice exception to invited-error waiver when government and defendant are equally at fault.
• Massaro v. United States, 538 U.S. 500 (2003) & Ledbetter, 929 F.3d 338 (6th Cir. 2019): Discussed the propriety of raising ineffective-assistance claims on direct appeal versus § 2255 motions.

Legal Reasoning

1. Tapia Error Framework: A sentencing court may not impose or lengthen a prison term to facilitate rehabilitation. But it may mention rehabilitative programs and treatment. Reversal requires an identifiable indication that rehabilitation drove the sentence.

2. Plain-Error vs. Invited-Error: Brown did not object below, so appellate review is for plain error: (1) error, (2) clear or obvious, (3) affects substantial rights, and (4) seriously affects fairness, integrity, or public reputation of judicial proceedings. However, the invited-error doctrine bars review if the defendant “contributed in some way” to the district court’s error without intentionally relinquishing a right.

3. Defense Counsel’s Role: At sentencing, Brown’s lawyer explicitly requested consecutive sentences to ensure that Brown’s supervised-release revocation term would not jeopardize his eligibility for BOP treatment programs on the new conviction. Counsel emphasized Brown’s need for mental-health, vocational, and educational resources, and asked the court to “fashion a sentence…that will get [him] some help.” The district judge complied, and also recommended specific BOP programs.

4. Invited‐Error Holding: Because Brown’s own attorney invited the precise conduct now challenged as Tapia error, the Sixth Circuit held that Brown waived the claim. The government, by contrast, had not sought rehabilitation as the basis for consecutive sentences. The court declined to invoke the “manifest injustice” exception, noting that Brown cannot cast the result he advocated for as unfair error.

5. Ineffective Assistance Claim: Brown also argued deficient performance for failing to object. The court refused to entertain this on direct appeal, consistent with its practice of reserving such claims for collateral review under 28 U.S.C. § 2255.

Impact

United States v. Brown crystallizes the interplay between Tapia’s rehabilitation restriction and the invited‐error doctrine at sentencing:

• Defense counsel must take care when advocating for sentencing features that may implicate statutory or constitutional limits. Inviting a prohibited rationale—such as lengthening a term for rehabilitative ends—will generally waive appellate review of any resulting error.
• Tapia challenges on appeal require close scrutiny of the record to determine if the court independently relied on impermissible factors, or merely responded to the parties’ combined sentencing recommendations.
• Strategies that hinge on securing BOP resources by structuring consecutive terms may backfire if they run afoul of Tapia and trigger an invited‐error waiver, limiting defendants’ appellate remedies.
• Sentencing advocacy should carefully distinguish between permissible references to rehabilitation (e.g., recommending programs) and direct requests to “lengthen” or “impose” prison for rehabilitative purposes.
• The decision reinforces the Sixth Circuit’s general reluctance to resolve ineffective‐assistance claims on direct appeal, steering such challenges to § 2255 proceedings.

Complex Concepts Simplified

• Tapia v. United States (2011): A Supreme Court ruling that prohibits judges from imposing or extending prison terms to help an offender’s rehabilitation, but allows mentioning rehabilitative programs.
• Invited Error: A defendant cannot complain on appeal about an error that his own lawyer asked the trial court to commit. It is a waiver of the right to challenge that error later.
• Plain Error Review: If a defendant fails to object below, an appellate court will only reverse for a clear and prejudicial mistake that undermines the fairness or integrity of proceedings.
• Procedural Reasonableness (§ 3553(a)): A sentencing court must calculate the Guidelines, treat them as advisory, consider statutory factors (seriousness, deterrence, protection of the public, rehabilitation, etc.), avoid impermissible factors, and explain its decision.
• Ineffective Assistance of Counsel: A claim that a lawyer’s performance fell below professional standards. Such claims are often resolved in collateral review rather than on direct appeal.

Conclusion

United States v. Brown reaffirms that a defendant’s sentencing arguments can preclude later appellate review under Tapia when those arguments “invite” the very error claimed. By expressly asking for consecutive sentences to facilitate access to BOP programs, Brown’s counsel waived any complaining about the district court’s references to rehabilitation. The decision thus warns defense attorneys to avoid advocacy that conflicts with statutory sentencing limits and underscores the importance of preserving objections when a court appears to rely on impermissible factors. In the broader legal landscape, Brown strengthens the invited‐error doctrine at sentencing and delineates the narrow path for challenging Tapia infractions on appeal.