                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-4295


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CASHMERE CAZEAU,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (4:10-cr-00101-F-1)


Argued:   March 22, 2013                  Decided:   March 27, 2013


Before WILKINSON and DAVIS, Circuit Judges, and Jackson L.
KISER, Senior United States District Judge for the Western
District of Virginia, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Bettina Kay Roberts, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C.
Gordon, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney,   Kristine L. Fritz, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Cashmere        Cazeau     appeals      his        thirty-month        sentence        for

violation of supervised release, a sentence significantly above

the    range    prescribed        by    the     applicable         Guidelines        Policy

Statement.      Cazeau        principally       argues      that       his    sentence        is

plainly unreasonable because the district court stated, among

its reasons for imposing the sentence, that the sentence would

enable Cazeau to participate in the Bureau of Prisons’ intensive

drug treatment program. For the reasons that follow, we vacate

the judgment and remand.

      Cazeau was convicted in the Eastern District of Virginia on

drug and firearm charges in 1994, as to which the district court

imposed an aggregate sentence of 324 months in prison, comprised

of    concurrent       264-month       terms     on       the    drug    counts      and      a

consecutive 60 months on the firearm count, to be followed by 60

months of supervised release. Cazeau’s sentence was subsequently

reduced to 264 months when his firearm conviction was vacated.

Later,    it    was     further     reduced         to    211    months      based      on    a

retroactive amendment to the Sentencing Guidelines. Supervised

release   commenced       on     October       6,     2009,      and    supervision          was

transferred      to     the     Eastern     District        of     North      Carolina       in

November 2010.

      Shortly      thereafter,         Cazeau’s           probation      officer        filed

reports notifying the district court that Cazeau had violated

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terms of supervised release. Specifically, Cazeau violated the

terms of his supervised release by using a controlled substance,

as disclosed by five positive urinalysis tests for marijuana,

and by failing to participate in a drug testing program.

     At    the    ensuing          supervised     release    revocation            hearing,

Cazeau    admitted          the    violations.    The     court     found      that     the

violations      had    been       established,    revoked     Cazeau’s         supervised

release, and sentenced him to thirty months’ imprisonment, well

above     the    three-to-nine-months             range     recommended            by   the

applicable      Policy       Statement.     In   explaining       its      decision,    the

district court began by stating that the sentence would enable

Cazeau to participate in an intensive drug treatment program.

Additionally,         the    court    explained    that     such       a    sentence    was

justified because: (1) Cazeau’s continued drug use and failure

to participate in the testing program increased the risk that he

would resume drug distribution activities and posed a threat to

society; (2) his original sentence had already been reduced due

to   vacatur     of     his       firearm   conviction      and    a       crack   cocaine

Guidelines amendment; (3) his criminal history did not fully

reflect the seriousness of his prior criminal conduct; and (4)

he exhibited disregard for the terms of supervised release from

the beginning by changing his residence. This appeal followed.

     A district court has broad discretion to impose a sentence

upon revoking a defendant’s term of supervised release. United

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States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Thus, we

will affirm a supervised release revocation sentence if it is

within     the    governing       statutory          range        and     not     plainly

unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th

Cir. 2006). In reviewing the sentence, “we follow generally the

procedural      and   substantive      considerations”            used    in    reviewing

original sentences. Id. at 438.

      A   revocation    sentence       is   procedurally          reasonable      if   the

district court has considered the Policy Statements contained in

Chapter Seven of the U.S. Sentencing Guidelines Manual and the

applicable 18 U.S.C. § 3553(a) sentencing factors, id. at 440,

and has adequately explained its sentence, though it need not

explain   the    sentence   in    as     much    detail      as    when    imposing     an

original sentence. Thompson, 595 F.3d at 547.

      Cazeau did not argue in the district court that his need

for   drug      treatment   was     an      inappropriate          ground       for    his

revocation      sentence.   Therefore,          we   review       his    challenge     for

plain error. See United States v. Bennett, 698 F.3d 194, 200

(4th Cir. 2012), cert. denied, 2013 WL 359745 (U.S. March 4,

2013) (No. 12-8489). Thus, to obtain relief on the basis of

plain error, Cazeau must show that (1) an error occurred; (2) it

was plain; (3) it affected his substantial rights; and (4) a

denial of relief would “result in a miscarriage of justice.” Id.

(citations omitted).

                                            5
       Applying the rule of Tapia v. United States, 131 S. Ct.

2382 (2011), we have held that a district court may not base a

revocation        sentence     of      incarceration        upon     a    defendant’s

rehabilitative needs. Bennett, 698 F.3d at 197-98 (“We thus hold

that   Tapia      applies    to     the   revocation       context   too.”).   Thus,

although Tapia was decided after the district court imposed a

sentence     in    this     case,      Cazeau    correctly      contends    that    the

district   court      erred       by   considering     a   prohibited      factor   in

imposing the revocation sentence and that the error is plain.

See Henderson v. United States, 133 S. Ct. 1121 (2013). The

government appropriately concedes that there was error and that

the error was plain, but argues that given the other factors to

which the court alluded in explaining its sentence, we should

decline to notice the error. We disagree and conclude that the

record amply supports Cazeau’s contention that his sentence of

incarceration was likely increased on the basis of the district

court’s clearly-expressed belief that he could benefit from drug

treatment while in prison. This rendered the district court’s

sentence procedurally          erroneous        and   plainly    unreasonable.      The

sentencing error here affected Cazeau’s substantial rights and

we are constrained to avoid the resulting injustice. Bennett,

698 F.3d at 200.

       Accordingly, we vacate the judgment and remand for further

proceedings       consistent       with   this    opinion.      Because    Cazeau   is

                                            6
nearing   the   end   of   a   thirty-month   sentence   we   conclude   is

plainly unreasonable, we direct the clerk to issue the mandate

forthwith. *

                                                   VACATED AND REMANDED;
                                              MANDATE TO ISSUE FORTHWITH




     *
        Cazeau also challenges his revocation sentence as infirm
on the ground that the district court impermissibly took into
account the fact that his original sentence had been reduced
based  on   an   amendment   to the  crack   cocaine  Sentencing
Guidelines. In light of our holding on his principal issue, we
need not address this claim.



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