                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4762


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

IVEA MOSLEY, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:10-cr-00011-RBS-DEM-1)


Submitted:   April 18, 2011                 Decided:   April 29, 2011


Before TRAXLER, Chief Judge, and WILKINSON and KING, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Arenda L. Wright
Allen, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard D. Cooke, Dee
M. Sterling, Assistant United States Attorneys, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ivea     Mosley,    Jr.    pled     guilty    to    driving      under     the

influence,    third     offense,      in    violation      of        the   Assimilative

Crimes Act, 18 U.S.C. §§ 7 & 13 (assimilating Va. Code Ann.

§§ 18.2-266, 270(C)(1) (2009)).                 The district court sentenced

him to eighteen months’ imprisonment.                 He appeals, arguing that

the    district    court    erred     by   imposing      this    sentence        for   the

primary purpose of rehabilitation.               Finding no reversible error,

we affirm.

            We review a district court’s imposition of a sentence

under a deferential abuse-of-discretion standard.                          See Gall v.

United    States,     552   U.S.    38,    51   (2007).         We    presume     that    a

sentence     within     a     properly-calculated         Guidelines         range       is

reasonable.       United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).     Mosley contends that the district court erred by relying

primarily on a perceived need for rehabilitation and treatment

in    determining     the   length    of   the    sentence       imposed.         In   the

proceedings below, Mosley did not mention 18 U.S.C. § 3582, the

statute upon which he now relies, nor did he otherwise object to

the    district     court’s    consideration       of    his     need      for   alcohol

rehabilitation when determining the length of Mosley’s sentence.

Because Mosley did not “sufficiently alert[] the district court”

to the issue, United States v. Lynn, 592 F.3d 572, 578 (4th Cir.

2010), we review his claim for plain error only.

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             Here, the district court sentenced Mosley to eighteen

months’    imprisonment         for    driving   under       the    influence.           The

statutory range for this offense was ninety days to five years.

The district court expressed its concern that this was Mosley’s

third conviction for this serious and dangerous offense, stated

the need to deter Mosley from continuing this behavior and the

need to protect the public from the dangers resulting from this

criminal     conduct.        The      district   court       also    emphasized       that

Mosley had completed out-patient substance abuse treatment on

two   occasions      and   yet     continued     to    experience      problems       with

alcohol      and    continued         to   operate     a     motor    vehicle        while

intoxicated.         The court therefore determined that residential

treatment     focusing     on    alcohol     abuse     was   needed,       and    that   an

eighteen-month term of imprisonment was necessary for Mosley to

receive    this     intensive      treatment,     to       deter    further       criminal

activity and to protect the public.

             While     the      district     court      clearly      emphasized          the

importance     of    rehabilitation         in   determining         the    appropriate

sentence, the court also considered the need for deterrence and

the need to protect the public as important factors.                             As Mosley

acknowledges, there is a split of authority as to the effect of

§ 3582(a).         Compare United States v. Hawk Wing, 433 F.3d 622,

630   (8th    Cir.     2006)     (“[A]fter       the    district      court        chooses

imprisonment as a proper punishment, it is not prohibited under

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§     3582     from    considering     correction      and    rehabilitation       in

determining the length of the imprisonment.”) with In re Sealed

Case,    573    F.3d    844,   849    (D.C.    Cir.   2009)   (“Given     the   plain

language of sections 3553(a) and 3582(a), we agree . . . that

sentencing courts may not treat rehabilitation as a reason for a

longer term of imprisonment.”).                Given this split of authority,

any error by the district court in considering rehabilitation

cannot amount to plain error.                  See United States v. Neal, 101

F.3d 993, 998 (4th Cir. 1996).                   Moreover, “look[ing] to ‘the

totality of the circumstances’ [we conclude that] the ultimate

sentence is reasonable.”             United States v. Evans, 526 F.3d 155,

165     (4th     Cir.    2008)       (quoting     Gall,    552     U.S.    at     51).

Accordingly, we find no plain error and no abuse of discretion

in    the    district    court’s     determination     that   an    eighteen-month

sentence is appropriate for Mosley’s offense.                    See United States

v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

               We affirm the district court’s judgment.                  We dispense

with oral argument because the facts and legal contentions are

adequately       presented     in    the   materials      before   the    court   and

argument would not aid the decisional process.

                                                                            AFFIRMED




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