   Case: 11-41172       Document: 00512045850         Page: 1     Date Filed: 11/07/2012




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

                                                                            FILED
                                                                         November 7, 2012
                                     No. 11-41172
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JUAN OLVERA,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 1:08-CR-905-8




Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Juan Olvera, federal prisoner # 90958-179, appeals the twenty-seven-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41172    Document: 00512045850      Page: 2    Date Filed: 11/07/2012

                                  No. 11-41172

month term of supervised release (“SR”) after the revocation of his initial SR. He
contends that the sentence is plainly unreasonable, because the district court
considered the factors in 18 U.S.C. § 3553(a)(2)(A) and also considered his need
for substance-abuse treatment, contrary to Tapia v. United States, 131 S. Ct.
2382 (2011). Because Olvera did not object, review is for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      Although in United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert.
denied, 132 S. Ct. 496 (2011), we held that it was “improper for a district court
to rely on § 3553(a)(2)(A) for the modification or revocation of a supervised
release term,” the revocation in Miller arose under 18 U.S.C. § 3583(e). Miller,
634 F.3d at 844. The revocation of Olvera’s SR was mandated by § 3583(g),
because he admitted that he had possessed controlled substances. See § 3583(d),
(g)(1). Because § 3583(g) “does not expressly invoke the sentencing factors of
§ 3553(a) or the limits imposed by the first clause of § 3583(e),” the consideration
of § 3553(a)(2)(A) when revoking a SR term pursuant to § 3583(g) was not clear
or obvious error. See United States v. Holmes, 473 F. App’x 400, 401 (5th Cir.
2012); United States v. Wilson, 460 F. App’x 351, 352 (5th Cir.), cert. denied, 132
S. Ct. 2759 (2012); United States v. Ibanez, 54 F. App’x 328, 329-30 (5th Cir.
2011), cert. denied, 132 S. Ct. 1981 (2012).
      Relying on Tapia, 131 S. Ct. at 2391, Olvera argues that the court erred
in imposing a sentence in response to his need for rehabilitation, urging that a
court cannot impose or lengthen a sentence to promote an offender’s rehabilita-
tion. Olvera points out that the district court’s comments about the need for
treatment made it clear that it imposed the term of SR based on rehabilitation
considerations.
      In Tapia, id. at 2388, the Court noted that 18 U.S.C. § 3582(a) instructs
the district courts, in determining whether to impose a term of imprisonment,
to recognize “that imprisonment is not an appropriate means of promoting cor-
rection and rehabilitation.” The district court stated that Olvera’s three-month

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                                   No. 11-41172

term of imprisonment was based on the nature of the alleged violations of SR
and the fact that Olvera had not committed another crime. There was no indica-
tion that the court considered Olvera’s rehabilitation needs in determining the
term of imprisonment. The order that Olvera participate in a substance-abuse
treatment program was a special condition of his term of SR. Thus, the court did
not act contrary to Tapia in imposing imprisonment.
      In Tapia the Court also recognized that Congress had chosen to pass stat-
utes that affirmatively instructed the district courts, when imposing probation
or SR, that they could consider ordering a defendant to participate in a training
or treatment program. Tapia, 131 S. Ct. at 2390; see 18 U.S.C. §§ 3562(a),
3563 (a)(4), 3583(c), 3553(a)(2)(D), (b)(9). Pursuant to those statutes, the district
court was authorized to consider Olvera’s need for substance-abuse treatment
in determining the term of SR on revocation of his SR. The district court did not
plainly err in ordering treatment as a condition of Olvera’s SR. See Puckett, 556
U.S. at 135.
      The revocation sentence is AFFIRMED.




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