     Case: 14-40323      Document: 00512872597         Page: 1    Date Filed: 12/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-40323                                 FILED
                                  Summary Calendar                       December 16, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

REYMUNDO OVALLE-SANDOVAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-1283


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Reymundo Ovalle-Sanchez (Ovalle) appeals from his conviction of illegal
reentry following deportation.         He contends solely that the district court
impermissibly based his 51-month within-range sentence on his need for drug
rehabilitation in prison. Because Ovalle did not object to his sentence in the
district court, our review is for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40323

      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      A district court may not impose or lengthen a sentence based on the
defendant’s need for rehabilitation. Tapia v. United States, 131 S. Ct. 2382,
2391 (2011). A sentencing court, however, is not precluded from referencing
the rehabilitative opportunities available to a defendant during incarceration.
See Tapia, 131 S. Ct. at 2392; United States v. Garza, 706 F.3d 655, 659 (5th
Cir. 2013). Moreover, a district court may discuss the need for rehabilitation
as a secondary concern or an additional reason when formulating a sentence.
Garza, 706 F.3d at 660.
      In Ovalle’s case, the district court focused on Ovalle’s drug habit,
indicating its concern about his drug addiction and its belief that his drug habit
motivated much of his criminal activity. The district court admonished Ovalle
about the damage that future drug use might cause. The district court also
noted Ovalle’s criminal history, his pending charges, and his history of illegal
entries. The district court concluded that Ovalle’s drug use made him a danger
to himself and to others and that this danger was sufficient justification to
deny a sentence below the guideline sentencing range. The court stated: “I
think you’re accurately scored there and I think a sentence in this range is – is
appropriate in your case.” The court sentenced Ovalle to 51 months in custody,
a within-range sentence. The district court said nothing about the need to seek
drug treatment in prison or about Ovalle’s prospects for rehabilitation. To the



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                                 No. 14-40323

extent that the district court’s admonishments about the dangers of continued
drug use could be construed as indirectly suggesting that Ovalle might wish to
seek treatment in prison, the district court’s remarks were appropriate
commentary on Ovalle’s personal history and characteristics, see 18 U.S.C.
§ 3553(a)(1) (allowing district courts to consider, inter alia, “the history and
characteristics of the defendant”), and did not indicate that the need for drug
rehabilitation was a dominant factor in the sentencing analysis, see United
States v. Walker, 742 F.3d 614, 617 (5th Cir. 2014); United States v. Receskey,
699 F.3d 807, 812 (5th Cir. 2012). The sentence did not violate Tapia, and
Ovalle has failed to rebut the presumption of reasonableness given to his
sentence. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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