     Case: 12-30751       Document: 00512247554         Page: 1     Date Filed: 05/20/2013




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

                                                                            FILED
                                                                           May 20, 2013
                                     No. 12-30751
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FELIPE ALVAREZ-CERVANTES, also known as Felipe Cervantes, also known
as Jose Garciamata, also known as Jesus Alvarez Vazquez, also known as Victor
Gallegscorona, also known as Daniel Hernandez Bareda, also known as Daniel
Bareda Hernandez, also known as Jaime Cruz-Guevara,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-294-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Felipe Alvarez-Cervantes appeals and challenges his above-Guidelines
sentence of 45 months of imprisonment. The sentence was imposed following his
guilty plea convictions of possession of a firearm by a prohibited person and
illegal presence in the United States after removal. Alvarez argues the district
court abused its discretion by basing its sentence of imprisonment largely on its

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-30751

determination that he needed anger management treatment and rehabilitation.
Alvarez relies on the Supreme Court’s holding 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.” Tapia v. United
States, 131 S. Ct. 2382, 2393 (2011).
      Alvarez objected to his sentence as unreasonable, but his objection was not
specific enough to alert the district court of its potential error of considering the
need for anger management treatment or rehabilitation when deciding on a
sentence of imprisonment. Accordingly, our review is limited to plain error. See
United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (recognizing that
an objection must be raised in such a manner that the district court is alerted
of the potential error and may correct itself). To prevail on plain error review,
Alvarez must show that a forfeited error occurred, the error was clear or obvious,
and the error affected his substantial rights. See United States v. Garza, 706
F.3d 655, 662 (5th Cir. 2013). If those factors are established, the decision to
correct the error is within our sound discretion, which will not be exercised
unless the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      The district court provided an extensive explanation of its sentence. The
court took note of Alvarez’s history of domestic violence, as well as his problems
with anger management, and determined that Alvarez had not been
rehabilitated “from prior attempts by the criminal justice system.” The district
court indicated that its sentence addressed Alvarez’s anger problems and his
history of domestic violence, and that the sentence also took into account
Alvarez’s recidivism, the need to protect society from his dangerous behavior,
and the need to impress upon Alvarez a respect for the law. After announcing
the 45-month sentence of imprisonment, the district court recommended that
Alvarez be placed in a prison facility where counseling for anger control and
domestic violence would be offered to him, and it made Alvarez’s participation

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                                 No. 12-30751

in counseling for anger control and domestic violence a condition of supervised
release.
      Our review of the sentencing shows the district court did not impose or
lengthen the term of imprisonment for the purpose of making Alvarez eligible
for a counseling or rehabilitative program, and therefore it did not clearly or
obviously err under Tapia. See United States v. Receskey, 699 F.3d 807, 812 (5th
Cir. 2012). The district court’s statement of reasons shows that its concern with
Alvarez’s need for anger management counseling and rehabilitation was, at
most, an “additional justification,” rather than the “dominant factor,” in its
selection of a sentence of imprisonment. See id. Alvarez has not shown an
entitlement to relief under the plain error standard. Accordingly, the judgment
of the district court is AFFIRMED.




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