### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-11079 Summary Calendar

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 rele ase. 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 wheth e r they are plainly unreasonable. United States v. Miller , 634 F.3d 841, 843 (5th Cir.), cert. denied , U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 15 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-11079 Document: 00512144479 Page: 1 Date Filed: 02/15/2013No. 11-11079

132 S. Ct. 496 (2011). Because Tatum did not object to the reasonableness of his sent e n c e b a sed upon the district court’s references to his alcohol abuse or rehabilitative needs, our review of that issue is limited to plain e rr o r . See United States v. Whitelaw , 580 F.3d 256, 259-60 (5 th C ir. 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 rehab i l i tation.” 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 p r e c luded from lengthening a revocation sentence based on the defendant’s rehab ilit ative needs. Tatum has failed to demonstrate that the district court imposed or lengthened Tatum’s revocation sentence b e c a use 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 p l a i n e rr o r because the district court did not “impose or lengthen defendant’s prison term for the purpose of making [th e d e f e ndant] eligible for

a ny rehabilitative program”); cf. Garza , 2013 WL 398760, at *4 (finding p l a i n
error where the court’s only justification for th e s e n tence 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.

2 Case: 11-11079 Document: 00512144479 Page: 2 Date Filed: 02/15/2013