     Case: 14-10060       Document: 00512787170         Page: 1     Date Filed: 09/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-10060
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         September 30, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

DERRICK LAPAUL STEPHENS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-97-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Derrick LaPaul Stephens appeals the 240-month, within-Guidelines
sentence imposed following his guilty plea for distributing methamphetamine.
Stephens claims his sentence is procedurally unreasonable because the district
court failed to explain adequately the sentence, and failed to consider the 18
U.S.C. § 3553(a) factors in not recommending his placement in the Federal
Residential Drug Abuse Treatment Program (RDAP). And, he further claims


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-10060


his sentence is substantively unreasonable because the district court failed to
balance fairly the § 3553(a) factors.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must still properly calculate the advisory Guidelines-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). Because Stephens did not raise these issues in district
court, review is only for plain error. United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007). Under that standard, Stephens must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.
      The record reflects the district court considered the evidence presented,
including Stephens’ history of drug abuse and his need for treatment by
requiring his participation in a drug treatment program as a condition of his
supervised release. It then provided a legally sufficient explanation of the
sentence by both noting the sentence adequately addressed all of the § 3553(a)
factors and stating it had considered the Guidelines in addition to the § 3553(a)
factors. E.g., Rita v. United States, 551 U.S. 338, 358–59 (2007). Because the
Bureau of Prisons has the sole discretion to determine prisoner eligibility and
to make arrangements for each prisoner’s participation in the appropriate
substance-abuse program, the court did not err in not recommending for
Stephens’ enrollment in the RDAP. 18 U.S.C. § 3621(b), (e). Stephens has not
demonstrated the district court committed plain error in either explaining the
sentence imposed or not recommending him for placement in RDAP. See, e.g.,
United States v. Rodriguez, 523 F.3d 519, 525–26 (5th Cir. 2008). Accordingly,



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                                   No. 14-10060


Stephens has not demonstrated his sentence is procedurally unreasonable.
E.g., id. at 525; see also Gall, 552 U.S. at 51.
      Regarding Stephens’ substantive-unreasonableness claim, the record
shows the court considered the relevant § 3553(a) factors, as well as Stephens’
claims for mitigating his sentence.          By concluding a within-Guidelines
sentence was appropriate, the court implicitly overruled Stephens’ claims.
E.g., Rodriguez, 523 F.3d at 526. It goes without saying that “the sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant”. United States v. Campos-
Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citing Gall, 552 U.S. at 49–51).
      Stephens’ general disagreement with the propriety of his sentence and
the district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-Guidelines sentence.
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Stephens has not
demonstrated the district court committed plain error by sentencing him to a
within-Guidelines, 240-month prison term and, thus, has not shown his
sentence is substantively unreasonable. See Gall, 552 U.S. at 51; Peltier, 505
F.3d at 392.
      AFFIRMED.




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