     Case: 09-10611     Document: 00511069668          Page: 1    Date Filed: 04/05/2010




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

                                                  FILED
                                                                             April 5, 2010
                                     No. 09-10611
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICHARD BITELA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 2:03-CR-53-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Richard Bitela appeals the sentence imposed after he admitted violating
conditions of his five-year term of supervised release. The district court imposed
a 28-month sentence so Bitela could participate in a residential drug-abuse
treatment program (RDAP). The court said it had received notice from the
Bureau of Prisons (BOP) that a 28-month sentence would be required in order
to schedule a prisoner for the RDAP. Bitela argues that the court failed to
observe that imprisonment is not an appropriate means to promote

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10611    Document: 00511069668 Page: 2        Date Filed: 04/05/2010
                                 No. 09-10611

rehabilitation and that his 28-month sentence was plainly erroneous because a
24-month sentence “ordinarily” suffices for RDAP eligibility.
      We review only for plain error because Bitela offered no objection to the
revocation sentence in the district court. United States v. Jones, 484 F.3d 783,
792 (5th Cir. 2007). To show plain error, Bitela must show an error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the
discretion to correct the error if it seriously affects the fairness, integrity, or
public reputation of the judicial proceedings. See id.
      Bitela concedes that United States v. Giddings, 37 F.3d 1091 (5th Cir.
1994), forecloses his argument against imposing incarceration for the sole
purpose of rehabilitation.     Regardless, the record indicates that Bitela’s
incarceration was intended to protect the public as well as Bitela, so
rehabilitation was not the sole ground for Bitela’s imprisonment.
      A prisoner’s need for rehabilitation is a valid consideration in selecting the
length of a sentence of imprisonment on revocation of supervised release. Id. at
1094-97. Bitela fails to show that the court committed a clear or obvious error
by relying on notice from the BOP that a 28-month sentence would be necessary
to schedule Bitela for the RDAP. Moreover, any sentence up to the statutory
maximum sentence available on revocation of supervised release is not plainly
erroneous. See Jones, 484 F.3d at 792-93; 18 U.S.C. § 3583(e)(3). Bitela’s
sentence was above the advisory guidelines range, but it was below the statutory
maximum sentence. Because the sentence was explicitly authorized by law, it
was not plainly erroneous. See Jones, 484 F.3d at 792-93. The judgment of the
district court is AFFIRMED.




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