     Case: 13-20085       Document: 00512336612         Page: 1     Date Filed: 08/09/2013




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

                                                                            FILED
                                                                           August 9, 2013

                                       No. 13-20085                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee

v.

BRANDI GORHAM ROBLES,

                                                         Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-668-1


Before JONES, SMITH and GARZA, Circuit Judges.
PER CURIAM:*
       Brandi Robles appeals the reasonableness of her sentence resulting from
a probation violation. Finding no error, we AFFIRM.
       While on probation for a drug conviction, Appellant pled true to three
charges of drug usage/possession and one violation for failure to report for drug
testing. Revoking her probation, the district court gave an above-Guideline
sentence of one year to allow time for participation in a drug rehabilitation
program. Counsel objected because of the sentence’s length and the court’s drug

       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-20085       Document: 00512336612         Page: 2    Date Filed: 08/09/2013



                                      No. 13-20085

treatment consideration. The judge responded that he could give Robles a
“straight sentence . . . [w]ith no mention of drug treatment” and also noted the
statutory maximum in the case (5 years) was under consideration. After the
government concurred that lengthening the sentence for treatment purposes
would violate Tapia v. United States, 131 S. Ct. 2382, 2393 (2011), the district
court cited the sentencing factors in 18 U.S.C. § 3553(c) and restated that the
sentence would be one year. The court acknowledged it could not and, in fact,
was not sentencing primarily on the need for Robles to complete a drug program.
Treatment was mentioned again as a “strong recommendation,” but not an order.
       The sentence here is reviewed under the “plainly unreasonable” standard.
United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011). We first assess
whether the district court committed procedural error and then consider the
sentence’s substantive reasonableness under an abuse-of-discretion standard.
       Appellant contends that the sentence still violates Tapia and that it is
unnecessarily long; both arguments rely on Robles’s belief that the treatment
program was the primary consideration of the court. The government responds
that no error took place because the court substituted proper reasons in response
to the objection and stated the drug program was only a secondary justification.
       We hold there was neither procedural nor substantive error here.1 After
recognizing its initial mistake, the court explicitly focused on punishment,
incapacitation, and deterrence.          Reasonable considerations—the repetitive
nature of the crimes and Robles’s implicit rejection of leniency previously shown
her—provide a valid foundation for the court’s decision and references to
treatment as an additional factor do not constitute error. See Tapia, 131 S. Ct.
at 2392. While Appellant’s Guidelines range was 3–9 months, the one year



       1
       Even if this were not the case, it is clear from the hearing record that the error was
harmless. See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008).

                                             2
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                                 No. 13-20085

sentence was well under the statutory maximum and, given the number of
offenses at issue, we cannot say it was plainly unreasonable.     AFFIRMED.




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