           Case: 17-11488    Date Filed: 11/28/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11488
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:14-cr-00173-BJD-JBT-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

LARRY HALLAM,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (November 28, 2017)

Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.

PER CURIAM:
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      Larry Hallam challenges his two-year prison sentence imposed for using

controlled substances in violation of his supervised release conditions. Hallam is

an opioid addict and lifelong drug abuser, and he contends that the district court

plainly erred by considering rehabilitation as a factor in imposing his two-year

sentence.

      Hallam served a year in prison for stealing government property and then

began serving a three-year term of supervised release. The conditions of his

supervised release included the standard prohibition on the use of controlled

substances. About a year into his term of supervised release, Hallam’s probation

officer filed a petition alleging four violations for unlawful opioid use. Hallam

was arrested and incarcerated, and he admitted to the violations.

      At Hallam’s revocation hearing the district court calculated his guidelines

range as three to nine months imprisonment with a maximum of two years.

Hallam agreed with the government’s recommendation of three to six months in

prison and no supervised release following imprisonment, stating that he was now

clean, that he needed to handle his addiction without supervision, and that he could

find services on his own if he needed help. He also stated that if he remained on

supervised release, he would get a prescription for pain pills so that he could take

them legally to help him with his back pain.




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      The court then questioned Hallam about a traffic infraction that occurred

right before he was arrested for his supervised release violations. A police officer

stopped Hallam after he crossed over a fog line several times, and the court

expressed concern that Hallam could not stay in his lane because he was under the

influence. Hallam denied that he crossed over the line because he was under the

influence, but he admitted that the last time he was sober was when he was in

prison. The court raised the possibility of placing Hallam in a residential drug

treatment program if he remained on supervised release, but Hallam stated that he

would prefer a jail sentence, even one at the top of the guidelines range, and then

release from supervision.

      The court found that Hallam violated his conditions of supervised release,

noting that the four opioid violations “evince[d] an inability to control [his]

consumption of controlled substances.” It sentenced Hallam to two years in

prison, after which he would be discharged from supervised release. The court

justified the variance based on Hallam’s “lack of success on supervised release,”

his “unwillingness to undergo inpatient treatment,” the “risk inherent in continual

drug abuse,” and the fact that prison was the “exclusive means of securing [his]

sobriety.”

      Hallam contends that the district court impermissibly lengthened his

sentence to promote his rehabilitation from drug use, in violation of the Supreme


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Court’s holding in Tapia v. United States, 564 U.S. 319, 335, 131 S. Ct. 2382,

2393 (2011), that “a court may not impose or lengthen a prison sentence to enable

an offender to complete a treatment program or otherwise to promote

rehabilitation.” We extended that holding to prison terms imposed for supervised

release violations in United States v. Vandergrift, 754 F.3d 1303, 1306, 1310 (11th

Cir. 2014). Hallam did not raise his Tapia objection at the revocation hearing, and

as a result we review only for plain error. Id. Under plain error review an

appellate court “may not correct an error the defendant failed to raise in the district

court unless there is: (1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(quotation marks omitted). If all of those conditions are satisfied, we “may then

exercise [our] discretion to notice [the] forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks omitted).

      Even assuming that the district court plainly erred in considering

rehabilitation, Hallam cannot show that the error affected his substantial rights

because his “rehabilitative needs clearly constituted only a minor fragment of the

court’s reasoning.” United States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017).

Hallam relies on the court’s statement that prison was the “exclusive means” to

keep him sober as evidence that rehabilitation played a major role in his sentence,


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but cherry-picking that quote ignores the context of the entire revocation hearing.

The court imposed the two-year sentence based on Hallam’s history of drug abuse

and the need to ensure public safety, both of which are legitimate factors to

consider in sanctioning a supervised release violation. See 18 U.S.C.

§§ 3553(a)(1), (a)(2)(C), 3583(e). Hallam all but admitted that he remained sober

only while incarcerated, he rejected the option of enrolling in a residential drug

treatment program, and he stated that he would get a prescription for pain pills if

he remained on supervised release. In light of those statements, the court’s

question as to whether Hallam was under the influence when an officer stopped

him for crossing over a fog line indicates that the court was concerned that

Hallam’s drug abuse would endanger the public. That the court might have

believed that Hallam would benefit from two years in prison does not mean that it

impermissibly relied on rehabilitation in imposing his sentence. See United States

v. Grant, 664 F.3d 276, 282 (9th Cir. 2011) (“When a judge imposes prison, he

may wisely believe that it will have rehabilitative benefits, but those benefits

cannot be the reason for imposing it.”).

      Hallam’s history of drug abuse and concern for public safety “drove the

district court’s sentencing decision,” and any consideration of rehabilitation played




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only a minor role, if any. 1 Vandergrift, 754 F.3d at 1312 (concluding that

defendant’s substantial rights were not impacted where the district court’s

“primary considerations were for the safety of the public and deterring others from

similar conduct”); see also United States v. Bennett, 698 F.3d 194, 201 (4th Cir.

2012) (concluding that defendant failed to satisfy the third prong of plain error

review where the context of the “entire sentencing proceeding” showed that the

defendant’s “rehabilitative needs clearly constituted only a minor fragment of the

court’s reasoning,” as the judge “led off the discussion” with and emphasized the

defendant’s breach of trust). As a result, Hallam cannot show that any error

impacted his substantial rights.

       AFFIRMED.




       1
         The district court’s questions about placing Hallam in a residential drug treatment
program also do not show that rehabilitation played more than a minor role in its decision, as a
court “commits no error by discussing the opportunities for rehabilitation within prison or the
benefits of specific treatment or training programs.” Tapia, 564 U.S. at 334, 131 S. Ct. at 2292.
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