     Case: 12-10531         Document: 00512191523        Page: 1    Date Filed: 03/29/2013




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

                                                                            FILED
                                                                          March 29, 2013
                                      No. 12-10531
                                    Summary Calendar                       Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEVIN DEANTHONY TERRY, also known as Detroit, also known as Darrell,
also known as KD,

                                                   Defendant-Appellant


                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 5:11-CR-52-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.1
PER CURIAM:**
       Kevin Deanthony Terry appeals the sentence imposed after revocation of
his supervised release. Terry argues that his 18-month sentence is unreasonable
because the district court relied on a prohibited sentencing factor, his need for
a support system and a place to live, to impose or lengthen the sentence.



       1
           Graves, Circuit Judge, concurs in the judgment only.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10531    Document: 00512191523     Page: 2   Date Filed: 03/29/2013

                                 No. 12-10531

      Because Terry did not object to the reasonableness of his sentence based
upon the district court’s reference to his homelessness/rehabilitative needs, our
review of that issue is limited to plain error. See United States v. Garza, ___
F.3d ___, No. 11-10543, 2013 WL 398760 at *4 (5th Cir.Feb. 1, 2013). In Tapia
v. United States, 131 S. Ct. 2382, 2393 (2011), the Supreme Court held in the
context of an appeal from an initial sentencing that a district court “may not
impose or lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation.” We have now
concluded that the holding in Tapia applies with equal force in the context of a
revocation sentencing. Garza, 2013 WL 398760 at **2-3.
      The district court in this case stated that an 18-month sentence was
proper because it would afford adequate deterrence, protect the public, and give
Terry, who was homeless, a support system and a place to live. This statement
was the district court’s sole remark regarding Terry’s particular needs. As the
record does not indicate that the district court imposed or lengthened Terry’s
prison term for the purpose of making him eligible for any rehabilitative
program, no Tapia error occurred. See United States v. Receskey, 699 F.3d 807,
811-12 (5th Cir. 2012). Even if the district court’s mention of Terry’s need for
a support system and a place to live could be construed as a reliance on his
rehabilitative needs in imposing sentence, there is no error. In light of the
district court’s statement that it imposed the sentence to provide adequate
deterrence and to protect the public, the record does not indicate that Terry’s
need for treatment was a dominant factor in the court’s sentencing analysis. See
Garza, 2013 WL 398760 at **3-4; Receskey, 699 F.3d at 812. Accordingly, the
judgment of the district court is AFFIRMED.




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