     Case: 18-50693      Document: 00514818107        Page: 1     Date Filed: 01/31/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 18-50693                     United States Court of Appeals

                                 Conference Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                     January 31, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus


JOSEPH WAYNE EVANS,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 3:13-CR-630-1




Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

      The Federal Public Defender appointed to represent Joseph Evans has



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
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                                 No. 18-50693

moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Evans has not filed a response. We have reviewed counsel’s brief
and relevant portions of the record. We concur with counsel’s assessment that
the appeal presents no nonfrivolous issue for appellate review, with one
exception.

      Counsel’s brief and the record reveal the following nonfrivolous appellate
issue: whether the sentence is plainly unreasonable because the district court
imposed or lengthened the term of imprisonment for an improper reason, spe-
cifically Evans’s refusal to commit to entering a drug treatment program.
Accordingly, we DENY counsel’s motion to withdraw. See Anders, 386 U.S.
at 744.

      Given the pendency of Evans’s release from prison, we conclude that
additional briefing would create unnecessary delay, and it is also unnecessary,
as we can resolve the case on the record and briefing before us. We thus turn
to the merits.

      It is debatable whether the district court relied on an improper reason
when it imposed sentence. Specifically, it does not appear that the court com-
mitted a Tapia error. See Tapia v. United States, 564 U.S. 319 (2011). In
Tapia, the district court lengthened the sentence so that the defendant would
qualify for rehabilitation services at the prison while in prison. That approach
ran afoul of the statutory admonition that prison is not for rehabilitation. Id.
at 334−35. Here, by contrast, the district court may have been willing to forgo
an additional prison sentence if the defendant demonstrated that he was
obtaining rehabilitation outside of prison (in what appears to be a program
much longer than the prison term at issue), a situation quite different from
Tapia. Therefore, the reasonableness of the sentence is subject to reasonable


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                               No. 18-50693

dispute, and the sentence is not plainly unreasonable. See Puckett v. United
States, 556 U.S. 129, 135 (2009); United States v. Sanchez, 900 F.3d 678, 682
(5th Cir. 2018).

      AFFIRMED.




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