     Case: 09-60798     Document: 00511134047          Page: 1    Date Filed: 06/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 7, 2010
                                     No. 09-60798
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MERLIN W. WINTERS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CR-60-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Merlin W. Winters appeals the 36-month sentence imposed by the district
court as unreasonable. Winters’s sole argument on appeal is that the sentence
was unreasonable in light of Winters’s need for treatment for drug addiction. As
he did not preserve his objection to the sentence, however, we review for plain
error. See United States v. Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir.
2007). Finding none, we affirm.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60798   Document: 00511134047 Page: 2        Date Filed: 06/07/2010
                                No. 09-60798

       The record demonstrated, and counsel argued, that Winters has a serious
drug addiction. The court concluded that a lengthy period of incarceration would
permit Winters to have access to the 500-hour drug rehabilitation program
available through the Bureau of Prisons. The court was motivated by a desire
to ensure that Winters had sufficient opportunity to overcome his addiction and
return from prison a productive member of society. This was an appropriate
factor to consider in assessing the sentence. See United States v. Pena, 125 F.3d
285, 288 (5th Cir. 1997); 18 U.S.C. § 3553(a). Further, the sentence was well
below the statutory maximum of five years, which “strongly counsels against its
being held reversible on plain error review.” Hernandez-Martinez, 485 F.3d at
274.
       AFFIRMED.




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