                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0367
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DYLAN DANIEL MILLARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Dylan Millard appeals the sentence imposed on his conviction for

possession of marijuana with intent to deliver. AFFIRMED.



      Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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DOYLE, Judge.

       Dylan Millard appeals the sentence imposed after he pled guilty to

possession of marijuana with intent to deliver. The district court sentenced Millard

to a five-year prison term. On appeal, Millard argues the district court abused its

discretion in denying his request for a suspended sentence and probation.

       When, as here, the sentence imposed is within the statutory limits, it “is

cloaked with a strong presumption in its favor, and will only be overturned for an

abuse of discretion or the consideration of inappropriate matters.”         State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “A district court abuses its discretion

when it exercises its discretion on grounds clearly untenable or to an extent clearly

unreasonable, which occurs when the district court decision is not supported by

substantial evidence or when it is based on an erroneous application of the law.”

State v. Wickes, 910 N.W.2d 554, 564 (Iowa 2018) (cleaned up).

       The court is to select the sentence that “will provide the maximum

opportunity for the rehabilitation of the defendant, and for the protection of the

community from further offenses by the defendant and others.” Iowa Code § 901.5

(2017). “In exercising its discretion, the district court is to weigh all pertinent

matters in determining a proper sentence, including the nature of the offense, the

attending circumstances, the defendant’s age, character, and propensities or

chances for reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). It must

then determine the appropriate sentence based on the individual factors of each

case, though no single factor alone may be determinative. See id.
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       In sentencing Millard, the district court expressed concern that Millard’s

record includes a number of violent crimes. The court also noted that Millard had

never successfully completed probation in the past. It explained:

               You’ve been revoked when you’ve been on probation. You’ve
       been revoked when you’ve been on work release. So putting you on
       probation at this point in time doesn’t seem to make a lot of sense
       because that hasn’t worked in the past either. I know you’re only 21.
       But, again, then we go back to what’s that risk. It’s not risk of another
       drug possession. It’s a risk that you’re doing other things, like getting
       in fights with police officers or hurting other members of the public. I
       mean, that’s my concern. Because I’ve got to consider the protection
       of the public along with your rehabilitation.
               And if I thought there was a great chance of you being
       rehabilitated and doing well on probation, . . . I would probably take
       that opportunity. But I don’t see that based upon your record. I know
       you’re only 21. You say you’re tired. You’re motivated by this new
       child that’s on the way. Those are all good things . . . that I look at
       because . . . they can be something that turns a person around. But
       you do have a prior child, and that child is six years old. That didn’t
       stop you from committing crimes either. And those are all the things
       that I’m looking at when I make the decision on sentencing.
               I really want to believe you, that this is it. But I don’t see it
       based on the record. I hope you prove me wrong. I hope you go to
       prison and that you start to turn things around and use the
       programming, that you turn it into a positive experience, and that you
       use these motivating factors as a means to get parole as soon as
       you can, that when you get on parole that you complete it
       satisfactorily and show that—show that I’m wrong. I would be happy
       to see that, because that would mean you would be successful. But
       that’s the direction we’re going to go in this case.

       Millard argues that the court “seemed to rely on its perceived rehabilitative

factors of prison in handing down [his] sentence” and claims doing so was error

under Tapia v. United States, 564 U.S. 319, 332 (2011) (holding the Federal

Sentencing Reform Act precludes lengthening a defendant’s prison term to

promote rehabilitation).     We disagree.       The district court’s discussion of

rehabilitation concerned past attempts to rehabilitate Millard that had failed and the

court’s hope that Millard would make the most of his prison term—not on the
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necessity of prison as a form of rehabilitation. Moreover, the statute at issue in

Tapia is inapplicable here.

       Substantial evidence supports the sentence imposed by the district court,

and the court properly applied the law in imposing it. Accordingly, the district court

acted within its discretion in imposing Millard’s sentence, and we affirm.

       AFFIRMED.
