     Case: 10-51031     Document: 00511800441         Page: 1     Date Filed: 03/26/2012




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

                                                                            FILED
                                                                          March 26, 2012

                                       No. 10-51031                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALONSO PEREZ-RIOS,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-1338-1


Before KING, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
        Following pleading guilty in July 2010 to illegal re-entry in the United
States after having been deported, in violation of 8 U.S.C. § 1326, Alonso Perez-
Rios was sentenced that September. Pursuant to the 23 September 2010
judgment, Perez was sentenced to, inter alia: 27 months’ imprisonment; and,
upon completion of that imprisonment, “only to be released to the custody of the
Immigration and Customs Enforcement agency”, with three-years’ “non-


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51031    Document: 00511800441        Page: 2   Date Filed: 03/26/2012



                                  No. 10-51031

reporting supervised release”. He challenges only his term of imprisonment
(term), claiming the district court impermissibly imposed it because of its
insistence on Perez’ receiving needed medical treatment.
      As noted by the district court, Perez’ properly calculated Guidelines’
sentencing range was 21-27 months. He was sentenced at the top of that range,
primarily in order for him to receive needed medical treatment. Perez objected
in district court to that length-of-term basis.
      In challenging his term, Perez relies on a recent Supreme Court decision,
rendered after his sentencing: Tapia v. United States, 131 S. Ct. 2382, 2393
(2011) (“[A] court may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to promote
rehabilitation”.).   The district court’s length-of-term basis, although well
intended, is violative of Tapia and constitutes an abuse of discretion.
      Accordingly, Perez’ sentence is VACATED and this matter is REMANDED
for resentencing. Perez was in custody prior to sentencing, and his projected
release date is 15 May 2012. Therefore, the mandate shall issue forthwith, and
resentencing is to be conducted on a greatly expedited basis.
      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
EXPEDITED RESENTENCING.




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