### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 60141

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JONATHAN MCDONALD , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:09

- CR

- 6

- 1

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM: * Jonathan McDonald challenges his 24

- month sentence imposed after the second revocat ion of his supervised release, claim ing the district court erred by basing his sentence on hi s rehabilitati ve needs , in violation of Tapia v. United States , 564 U.S. 319 (2011). AFFIRMED. **

* Pursuant to 5th Cir. R. 47.5, the court has determined this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4

.

** Judge Dennis concurs in the judgment only. United States Court of Appeals Fifth Circuit 

### FILED September 7, 2017 Lyle W. Cayce Clerk Case: 16-60141 Document: 00514147003 Page: 1 Date Filed: 09/07/2017No. 16

- 60141

2 I

. McDonald pleaded guilty to bank fraud , in violation of 18 U.S.C. § 1344. His first supervised

- release term was revoked in 2014 , after he violated conditions of his supervision. He was sentenced to time served and 30 months’ supervised release in 2014. In January 2016, McDonald’s probation officer petitioned the court for a revocation warrant; and, at his revocation hearing, McDonald adm itted to violatin g five of his supervised

- release conditions. He also advised he had “started back using” drugs and “everything just started falling apart”. The court concluded McDonald violated the terms of his supervision, revoked his supervised release, and sentenced him to 24 months’ imprisonment and 12 months’ supervised release. The court explained it imposed the sentence “ [t] o promote respect for the law, to deter future criminal conduct, to protect the community, and to control the offender’s conduct, and additionally I want him to have sufficient time to complete the 500

- hour drug and alcohol treatment program”. II

. Because McDonald did not object in district court to his sentence, review is only for plain error. E.g. , United States v. Broussard , 669 F.3d 537 , 546 (5th Cir. 2012 ). Under that standard, McDonald must show a forfeited plain (clear or obvious) error that affected his substantial rights. E.g. , Puckett v. United States , 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. When sentencing defendant, “a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or othe rwise to promote rehabilitation ”

. Tapia , 564 U.S. at 335 ; see 18 U.S.C. Case: 16-60141 Document: 00514147003 Page: 2 Date Filed: 09/07/2017No. 16

- 60141

3 § 3582(a) (imprisonment not appropriate means of promoting rehabilitation)

. On the other hand, Tapia does no t forbid all consideration of defendant’s rehabilitative needs when imposing a sentence; along that line, a sentence will be vacated on appeal only if rehab ilitation was the “dominant factor” , rather than a “secondary concern” or “additional justification” , in the district court’s sentencing determination. United States v. Garza , 706 F.3d 655 , 660 (5th Cir. 2013). The se rule s apply , inter alia , to sentences imposed upon re vocation of defendant’s probation or supervised release. E.g. , id. at 657

. T he court stated it relied on the policy statements provided in Sentencing Guideline § 7B1.4 , and the 18 U.S.C. § 3553(a) and 18 U.S.C. § 3582 sentencing factors wh en imposing a 24

- month sentence. Before announcing McDonald’s sentence, the court did not reference his drug use or tie the length of his sentence to his need for drug treatment while in prison. T he probation officer then alerted the court that the sente nce was above the G uidelines sentencing
range. As quoted supra , the court, i n responding, did not alter the sentence and stated it was based on the four sentencing factors, provided supra , and,

“ additionally ” , to give McDonald suffi cient time to complete the earlier

described drug

- and

- alcohol

- treatment program. P ursuant to our plain

- error standard of review, b ecause McDonald has not shown his rehabilitative needs were the dominant factor in the court’s sentencing decision , as oppos ed to being “additional justific ation” for the sentence imposed, he has failed to show the requisite clear or obvious error. E.g. , United States v. Receskey , 699 F.3d 807, 811

– 12 (5th Cir. 2012). III

. For the foregoing reasons, the judgment is AFFIRMED. Case: 16-60141 Document: 00514147003 Page: 3 Date Filed: 09/07/2017