     Case: 11-11079       Document: 00512144479         Page: 1     Date Filed: 02/15/2013




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

                                                                            FILED
                                                                         February 15, 2013
                                     No. 11-11079
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUDOLPH TATUM, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:04-CR-81-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Rudolph Tatum, Jr., appeals the sentence imposed after revocation of his
term of supervised release. He argues that his eighteen-month sentence of
imprisonment, which was above the recommended policy statement range of six
to twelve months, is unreasonable because the district court improperly relied
upon his need for rehabilitation to impose or lengthen the sentence.
       We review revocation sentences to determine whether they are plainly
unreasonable. United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11079     Document: 00512144479     Page: 2   Date Filed: 02/15/2013

                                  No. 11-11079

132 S. Ct. 496 (2011). Because Tatum did not object to the reasonableness of his
sentence based upon the district court’s references to his alcohol abuse or
rehabilitative needs, our review of that issue is limited to plain error. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). In Tapia v.
United States, 131 S. Ct. 2382, 2393 (2011), the Supreme Court held in a direct
criminal appeal 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.” This court recently held that Tapia applies to the
revocation context. United States v. Garza, No. 11-10543, 2013 WL 398760, at
*1 (5th Cir. Feb. 1, 2013).     A district court, therefore, is precluded from
lengthening a revocation sentence based on the defendant’s rehabilitative needs.
      Tatum has failed to demonstrate that the district court imposed or
lengthened Tatum’s revocation sentence because of his rehabilitative needs.
While the district court referenced the opportunity Tatum would have to
participate in counseling services, our review of the record convinces us that the
district court did not impose or lengthen Tatum’s eighteen-month sentence on
that basis. See United States v. Receskey, 699 F.3d 807, 811–12 (5th Cir. 2012)
(finding no plain error because the district court did not “impose or lengthen
defendant’s prison term for the purpose of making [the defendant] eligible for
any rehabilitative program”); cf. Garza, 2013 WL 398760, at *4 (finding plain
error where the court’s only justification for the sentence it imposed was the
defendant’s rehabilitative needs). Accordingly, Tatum has not shown that the
district court plainly erred under Tapia.
      The judgment of the district court is AFFIRMED.




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