     Case: 11-10287     Document: 00511657183         Page: 1     Date Filed: 11/07/2011




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

                                                                            FILED
                                                                         November 7, 2011
                                     No. 11-10287
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRANKLIN GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-15-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Franklin Garcia appeals the 24-month sentence of imprisonment imposed
following the revocation of a previously imposed term of supervised release. He
argues that the district court erred by considering rehabilitation in determining
his sentence. He also argues that the district court failed to explain why the
sentence chosen was necessary to promote rehabilitation. The Government
moves for summary affirmance, asserting that Garcia’s arguments are



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10287     Document: 00511657183   Page: 2   Date Filed: 11/07/2011

                                 No. 11-10287

foreclosed. In the alternative, the Government seeks an extension of time to file
an appellate brief.
      Garcia’s first argument, that the district court erred by considering
rehabilitation, is based on the Supreme Court’s recent decision in Tapia v.
United States, 131 S. Ct. 2382 (2011). However, as the Government correctly
points out, we have held that the limitations on the consideration of
rehabilitation at issue in Tapia do not apply in a revocation proceeding. See
United States v. Breland, 647 F.3d 284, 287-90 (5th Cir. 2011). Therefore, this
argument is foreclosed.
      However, because Garcia’s appellate brief raises a second argument that
is not foreclosed, the Government’s motion for summary affirmance is denied.
As we see no need for further briefing, the Government’s alternative motion for
an extension of time to file an appellate brief is denied as unnecessary.
      Although Garcia generally objected to the reasonableness of the sentence,
we conclude that he failed to preserve his specific argument that the district
court failed to adequately explain why the sentence imposed would promote
rehabilitation. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
Therefore, we review for plain error. Puckett v. United States, 556 U.S. 129, 129
S. Ct. 1423, 1429 (2009). However, we conclude that any error in failing to
adequately explain the reasons for the sentence does not warrant relief under
plain error review because Garcia cannot show prejudice. See United States v.
Whitelaw, 580 F.3d 256, 261-65 (5th Cir. 2009).
      AFFIRMED; MOTIONS DENIED.




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