     Case: 10-10013     Document: 00511225563          Page: 1    Date Filed: 09/07/2010




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

                                                 FILED
                                                                         September 7, 2010
                                     No. 10-10013
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TERRY CRAIN, also known as Maurice Clayton,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:92-CR-38-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Terry Crain appeals the sentence imposed following the revocation of his
supervised release subsequent to his conviction for conspiracy to possess with
intent to distribute 50 grams or more of cocaine base and possession of 50 grams
or more of cocaine base with intent to distribute. The district court sentenced
Crain to 24 months of imprisonment, 13 months more than the high end of the
advisory guidelines range.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10013

      Crain argues that the district court abused its discretion procedurally by
sentencing him to 24 months of imprisonment so that he could participate in the
Bureau of Prisons’ (BOP’s) residential drug abuse program when his sentence
made him ineligible for participation in that program. A letter from the BOP
that Crain has filed indicates that Crain is ineligible for participation in the
residential drug abuse program because he has less than 24 months remaining
on his sentence. He maintains that the district court’s reliance upon its incorrect
belief that he would be eligible for the residential drug abuse program was
procedural error.
      Crain also argues that the sentence was substantively unreasonable. He
maintains that the district court did not account for, or give proper weight to, his
history and characteristics, specifically the evidence showing that he was a hard
worker and that he had made significant attempts at rehabilitation.                 He
contends that the district court did not account for, or give proper weight to, the
sentencing factor of providing deterrence and protecting the public.                He
maintains that his supervised release violations did not show he was dangerous
because they did not relate to his original offenses, because he served only one
day in state custody on the state offenses that led to his revocation, and because
the victim of his state offenses, his wife, remains committed to him.
      Because Crain did not object to the sentence in the district court, we
review for plain error only. See United States v. Jones, 484 F.3d 783, 792 (5th
Cir. 2007). To show plain error, Crain must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Assuming arguendo that the district court erred by basing the sentence on
its incorrect belief that Crain would be eligible for participation in the BOP’s
residential drug abuse program and that the error was clear or obvious, Crain

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                                 No. 10-10013

still has not shown plain error because he has not shown that the error affected
his substantial rights. The district court stated that the sentence it imposed
would allow Crain to participate in the BOP’s drug program, and Crain has
shown that he is not eligible to participate in the BOP’s residential drug abuse
program because his sentence is too short. Thus, if the district court did base
the sentence upon Crain’s eligibility for participation in the BOP’s residential
drug abuse program, the logical conclusion is that the district court would have
imposed a longer sentence if it knew that a longer sentence was required to
make Crain eligible for participation. Accordingly, at best for Crain, it is unclear
whether the error helped or harmed him, and Crain has not shown that the error
affected his substantial rights. See United States v. Mares, 402 F.3d 511, 521
(5th Cir. 2005).
      While the 24-month sentence exceeded the advisory guidelines range, it
was well within the statutory maximum sentence of 60 months of imprisonment.
See 18 U.S.C. § 3583(e)(3); U.S.S.G. 7B1.4(a). The district court considered
Crain’s argument for leniency and then imposed the sentence. Given these
circumstances, Crain has not shown that the sentence constituted plain error.
See Jones, 484 F.3d at 792-93; United States v. Whitelaw, 580 F.3d 256, 265 (5th
Cir. 2009).
      AFFIRMED.




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