                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4832


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICO C. AERY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00376-RJC-2)


Submitted:   July 31, 2013                 Decided:   August 23, 2013


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Steven A. Feldman, FELDMAN & FELDMAN, Uniondale, New York, for
Appellant. Anne M. Tompkins, United States Attorney, William M.
Miller, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Rico   C.    Aery    appeals      the   district    court’s    judgment

revoking   his    supervised      release      and     sentencing   him    to    six

months’    imprisonment,       followed      by    a   new    two-year    term     of

supervised release.       Aery contends that his six-month revocation

sentence is unreasonable because the court failed to explain

adequately its reasons for imposing a sentence of that length.

He also argues that the court improperly extended the new term

of supervised release to accommodate his drug rehabilitation.

We affirm in part and dismiss in part.

           On February 19, 2013, while this appeal was pending,

Aery was released from incarceration and began serving his new

term of supervised release.             We may address sua sponte whether

an issue on appeal presents “a live case or controversy . . .

since mootness goes to the heart of the Article III jurisdiction

of the courts.”        Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 197

(4th Cir. 2002) (internal quotation marks omitted).                        Because

Aery has already served his term of imprisonment and has not

identified any collateral consequences of it, there is no longer

any live controversy regarding the length of his confinement.

Therefore, his challenge to the active prison sentence is moot.

See   United   States   v.     Hardy,   545    F.3d    280,   283-84     (4th    Cir.

2008).



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            However, because Aery is still serving a new term of

supervised       release,    we    retain   jurisdiction       to    review    the

district     court’s     decision     to    impose    a     two-year    term    of

supervised release.         Aery contends that the district court erred

by considering his efforts at drug rehabilitation to determine

that a two-year term of supervised release was appropriate. *                   We

will affirm a sentence imposed after revocation of supervised

release 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).            “When reviewing whether a revocation

sentence     is    plainly    unreasonable,     [the      Court]     must     first

determine whether it is unreasonable at all.”                 United States v.

Thompson, 595 F.3d 544, 546 (4th Cir. 2010); see United States

v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).                      Only if this

court    finds    the   sentence    unreasonable     must    the    court   decide

whether it is “plainly” so.          Moulden, 478 F.3d at 657.

            Aery asserts that the new term of supervised release

is unreasonable because the district court extended it to two

     *
       The government maintains that Aery did not preserve this
issue for appeal, while Aery argues that his question to the
court (“I’m getting 2 years probation after I do the 6 months
incarcerated?”) functioned as an objection that preserved for
appeal his challenge to the length of the new term of supervised
release.   We agree that Aery’s question did not amount to an
objection.   However, his claim fails under either the plain
error test, United States v. Olano, 507 U.S. 725, 732 (1993), or
the plainly unreasonable test set out above.



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years to accommodate his drug rehabilitation.                      He argues that

the sentencing court may not lengthen a sentence to promote the

defendant’s drug treatment or other rehabilitation, citing Tapia

v. United States, 131 S. Ct. 2382 (2011).                         His argument is

inapposite for the following reasons.

             Because Aery’s original offense was a Class C felony,

under   18    U.S.C.    § 3583(b)(2),      (h)       (2006),      the     court   was

authorized to impose a new term of supervised release of up to

thirty-six months less any term of imprisonment imposed upon

revocation of supervised release, which in Aery’s case meant a

term of up to thirty months was authorized by statute.                      Aery did

not   request   that    the   court   forego     a    new   term    of    supervised

release, impose a new term of less than two years, or address

that aspect of his sentence at all.

             Further,     the    rationale           used    in     Tapia,        that

imprisonment is not an appropriate way to promote a defendant’s

rehabilitation, does not appear to prohibit a district court

from relying on a defendant’s rehabilitative needs in choosing

to impose a supervised release term or in determining the length

or manner of supervision.

             We therefore affirm the district court’s judgment, but

dismiss the appeal as moot to the extent that Aery seeks to

challenge his expired sentence of incarceration.                         We dispense

with oral argument because the facts and legal contentions are

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adequately   presented   in   the   materials   before    this   court   and

argument would not aid the decisional process.

                                                         AFFIRMED IN PART;
                                                         DISMISSED IN PART




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