     Case: 10-30883     Document: 00511547687         Page: 1     Date Filed: 07/21/2011




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

                                                                            FILED
                                                                            July 21, 2011
                                     No. 10-30883
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TRACY AUBERT,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CR-60-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Tracy Aubert appeals as substantively unreasonable the sentence imposed
upon the revocation of supervised release. Aubert’s supervised release was
revoked after he failed to complete a drug treatment program. The district court
upwardly varied from the advisory range guideline range of four to ten months
and imposed a statutory maximum sentence of 36 months of imprisonment.
        Aubert contends that his expulsion from the drug treatment program was
due in part to the probation officer’s refusal to approve a request for additional

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30883      Document: 00511547687   Page: 2   Date Filed: 07/21/2011

                                  No. 10-30883

treatment sessions.      He argues that a statutory maximum sentence was
unreasonable given that he was only partially to blame for his failure to succeed
in the program. Aubert also contends that his sentence is unconstitutional, and
hence substantively unreasonable, because he was punished on account of his
addiction to drugs.
      In imposing sentence, the district court took note of Aubert’s criminal
offenses during his term of supervision, the nature and frequency of supervised
release violations, and Aubert’s continued need for drug treatment and
education or vocational training. The district court indicated that in light of
Aubert’s failure to complete a drug rehabilitation program during his supervised
release he would benefit from a longer and more intensive drug treatment
program in a prison setting. Aubert has not shown that the district court’s
sentence was plainly unreasonable. See United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011).
      AFFIRMED.




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