     Case: 12-40748   Document: 00512526478     Page: 1   Date Filed: 02/07/2014




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

                                                                           FILED
                                                                    February 7, 2014
                                No. 12-40748
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,
v.

DERRICK LAMONT WALKER,

                                           Defendant-Appellant.


                Appeal from the United States District Court
                     for the Eastern District of Texas



Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Derrick Lamont Walker appeals from his sentence of 24 months
imprisonment followed by 24 months of supervised release for violating
conditions of an earlier sentence of supervised release. We affirm.
                                      I.
      Walker pleaded guilty in July 2010 to one count of possession of material
involving the sexual exploitation of minors and was sentenced to time served
and seven years of supervised release. The district court revoked Walker’s
supervised release in March 2011 based upon his admission that he had been
terminated from sex offender treatment due to his disruptive behavior. The
district court sentenced him to three months in prison and an additional five
years of supervised release. Among the conditions of his supervised release
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                                   No. 12-40748
were that he (1) not associate with any convicted felons, (2) participate in a
drug testing and treatment program, (3) not have contact with children under
the age of 18 unless supervised by an adult approved by the probation officer,
(4) not possess or view any images depicting sexually explicit conduct, and (5)
abstain from the use of alcohol.
      In July 2012, Walker admitted to violating each of the foregoing
conditions. In exchange, the Government agreed to recommend that he be
imprisoned for nine months, which constituted the top of the three to nine
month Guidelines range, with no period of supervised release to follow. In
accordance with the agreement of the parties, the magistrate judge
recommended that Walker be sentenced to nine months of imprisonment with
no subsequent period of supervised release.
      The district court, however, advised Walker at the beginning of the
revocation hearing that it was not inclined to follow the recommendation. The
district court explained at length that it had been lenient in Walker’s prior
sentences and that Walker had violated his supervised release conditions
repeatedly since January 2011. The district court stated that, in light of its
previous leniency, “if you mess up, there is [sic] going to be consequences for it
. . . . [I]t would be my intention to give you a somewhat longer sentence.”
      After Walker, through counsel, indicated that he still wished to proceed
with his plea, the district court sentenced him to the statutory maximum of 24
months in prison. In so doing, the district court explained:
            I want to tell you I am doing this trying to help you. I
            think if you have a longer period of time in prison to
            think about [sic] and perhaps get some counseling,
            that when you get out, that you will realize that these
            are very serious matters; that you have to comply with
            them; and you don’t have the choice of complying with
            them.

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                                         No. 12-40748


           Although the district court initially sentenced Walker to an additional
five-year period of supervised release, it ultimately reduced the term to two
years of supervised release. Walker timely filed a notice of appeal, arguing
that the district court improperly considered his rehabilitative needs in
violation of 18 U.S.C. § 3582(a) and United States v. Garza, 706 F.3d 655 (5th
Cir. 2013). The district court had jurisdiction under 18 U.S.C. § 3231, and we
have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                                II.
           Revocation sentences generally are reviewed under 18 U.S.C.
§ 3742(a)(4)’s “plainly unreasonable” standard. 1                 However, because Walker
did not object to the district court’s reliance on rehabilitation as a sentencing
factor, review is limited to plain error. 2 To prevail on plain error review, a
defendant must show that an error occurred, that the error was clear or
obvious, and that the error affected his substantial rights. 3 If those factors
are established, the decision to correct the forfeited error is within the court’s
sound discretion, which will not be exercised unless the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. 4                This
court has held that the question whether an error is clear or obvious is
answered based on the law at the time of appeal. 5
           The district court may impose any sentence that falls within the



1   United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
2   See Garza, 706 F.3d at 662.
3   Id.
4   Id.
5   Id.


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                                         No. 12-40748
statutory maximum term of imprisonment allowed for the revocation sentence.
18 U.S.C. § 3583(e)(3). In imposing a revocation sentence, the district court
must consider the factors enumerated in 18 U.S.C. § 3553(a) and the
nonbinding policy statements found in Chapter Seven of the Sentencing
Guidelines. 6          In Tapia v. United States, 131 S. Ct. 2382, 2393 (2011), the
Supreme Court held, in the context of an initial sentencing, that a district court
“may not impose or lengthen a prison sentence to enable an offender to
complete a treatment program or otherwise to promote rehabilitation.” In
Garza, this court held that the holding of Tapia applies with equal force to
revocation sentences. 7
          A sentencing court is not precluded from referencing the rehabilitative
opportunities available to a defendant during incarceration. 8 Post-Tapia, this
court has concluded that if consideration of the need for rehabilitation is a
“‘secondary concern’ or ‘additional justification’” for a sentence, it is
permissible.       9      Conversely, a sentencing court errs if a defendant’s
rehabilitative needs are “a ‘dominant factor’ . . . [that] inform[s] the district
court’s [sentencing] decision.” 10
          Walker argues that the district court committed clear or obvious error as
evidenced by its statements that it was “trying to help” Walker by giving him
“a longer period of time in prison to think . . . and perhaps get some counseling.”
He further contends that the error affected his substantial rights and seriously
affected the fairness of the proceedings because, just as in Garza—a case in

6    18 U.S.C. § 3583(e); United States v. Mathena, 23 F.3d 87, 90-93 (5th Cir. 1994).
7    Garza, 706 F.3d at 657-59.
8    See Tapia, 131 S. Ct. at 2392; Garza, 706 F.3d at 659.
9    Garza, 706 F.3d at 660 (citation omitted).
10   Id. (citation omitted).


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                                        No. 12-40748
which this court found plain error—the district court sentenced him to 24
months in prison despite that his Guidelines range was only three to nine
months of imprisonment.
         We disagree.       This case is distinguishable from Garza, in which the
district court focused almost exclusively on rehabilitation in crafting a
sentence. There, the court stated that the defendant “should be required [or]
at least be given an opportunity to participate in that residential institution
drug treatment program,” had a discussion on the record about the various
treatment programs available under different sentences, and sentenced the
defendant to 24 months imprisonment for purposes of entering an appropriate
treatment program. 11           As the Garza court noted, “The court offered no
additional justifications for the sentence it imposed.” 12
         In this case, although the district court certainly took rehabilitation into
account (“I think if you have a longer period of time in prison to think about
[sic] and perhaps get some counseling . . . .”), it was at most a secondary
concern or additional justification for the sentence, not a dominant factor. 13
The district court referred to rehabilitation only after detailing Walker’s
multiple violations of his conditions of supervised release after he had been
given a relatively lenient sentence on the underlying crime. The district court
concluded:
                   I sentenced you in the first case. You are under my
                   custody. And I think I told you then—I normally do
                   when I give somebody the kind of break I gave you—
                   that if you come back in front of me, you know, if you
                   mess up, there is [sic] going to be consequences for it.

11   Id. at 660-62.
12   Id. at 662.
13   Id. at 660.


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              And so I am not inclined to sentence you to what has
              been worked out by your attorney.

              And I will be glad to hear anything you have to say,
              but it would be my intention to give you a somewhat
              longer sentence and a longer period of supervised
              release.

      Thus, before the district court even mentioned rehabilitation, it had
essentially addressed factors under 18 U.S.C. § 3553(a) which would fully
support the sentence imposed, including “the nature and circumstances of the
offense and the history and characteristics of the defendant,” § 3553(a)(1), and
“the need for the sentence imposed . . . (A) to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense; [and] (B) to afford adequate deterrence to criminal conduct,” §
3553(a)(2).    Only later did the district court mention the possibility of
rehabilitation, which did not constitute a dominant factor. In short, this case
is distinguishable from Garza, and the district court did not plainly err in
imposing this sentence.
                                      III.
      Accordingly, we affirm.




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