### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 10-11191 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RUSSELL A. HUDSON, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:89-CR-126-1

Before KING, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Russell A. Hudson appeals the district court’s judgment revoking his term of supervised release and sentencing him to 23 months of imprisonment and an additional supervised release term of 13 months. Hudson timely appealed. Hudson first argues that the district co urt p lainly erred in imposing his sentence by considering factors identified in 18 U.S.C. § 3553(a)(2)(A), such as the need “to provide just punishment for the offense” a n d it s “seriousness.” Because Hudson did not object in the district court to the court’s consideration U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary6, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-11191 Document: 00511716941 Page: 1 Date Filed: 01/06/2012No. 10-11191

of a prohibited factor in determining his sentence, we review only for plain error. See United States v. Hernandez-Martinez , 485 F.3d 270, 272-73 (5th Cir. 2007). To show plain error, Hudson must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United St a t es , 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, w e h av e the discretion to correct the e rr o r but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Afte r H udson was sentenced, while the instant appeal was pending, we decided United States v. Miller , 634 F.3d 841 (5th Cir. 2011), cert. denied , No. 10- 10784, 2011 WL 2148772 (Oct. 31, 2011). In Miller , we held that “it is improper for a district court to rely on § 3553(a)(2)(A) for the modification or revocation of

a supervised release t e r m . ” 6 3 4 F .3d at 844. To the extent that the district court relied on a § 3553(a)(2)(A) factor, such reliance was impermissible under Miller

. Our circuit has issued inconsistent cases on th e subject of whether the “plainness” of an error is judged at the time of sentencing or at th e ti m e o f appeal. Compare United States v. Garcia-Rodriguez , 415 F.3d 452, 455 (5th Cir. 2005) (“‘Plain’ is syn o ny m ous with ‘clear’ or ‘obvious,’ and at a minimum, contemplates an error which was clear under current law at the time of trial.”); United States v. Hull , 160 F.3d 265, 272 (5th Cir. 1998) (sam e) , w i t h United States v. Bishop , 603 F.3d 279, 281 (5th Cir.) (“We determine whether an alleged

error is p l ain by reference to existing law at the time of appeal.”), cert. denied , 131 S. Ct. 272 (2010); United States v. Gonzalez-Terrazas , 529 F.3d 293, 298 (5th Cir. 2008) (“[T]he error need only be plain at the ti m e o f appellate consideration.”); see also United States v. Gloria , No. 1 0

- 1 0423, 2011 WL 3966101 * 2 ( 5 th Cir. Sept. 7, 2011)(unpublished)(concluding Miller error was not plain because of circuit split at the time of s e nt e nc i n g). Accordingly, we apply the earliest pronouncement of this determination following the Supreme Court’s explication of the plain error factors in United States v. Olano , 507 U.S.
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725, 734 (1993). United States v. Knowles , 29 F.3d 947 (5th Cir. 1994) (holding that error is plain when it is plain at the time of appeal). Where “two previous holdings or lines of precedent conflict, the earlier opinion controls and is the binding precedent in this circuit.” United States v. Wheeler , 322 F.3d 823, 828 n.1 (5th Cir. 2003) (internal quotation marks omitted). Accordingly, we conclude that the district court plainly erred in considering a factor under § 3553(a)(2)(A). We con c lude that this error affected Hudson’s substantial rights. Although the district court references factors it “should consider” under 3553(a) in pronouncing the sentence, it discussed only two facts expressly not permitted to be considered under Miller – the seriousness of the offense and punishment. Thus, we conclude that the error resulted in the imposition of an impermissible sentence affecting Hudson’s rights. Finally, we conclude that it is appropriate to exercise our discretion to correct this error. We also revi e w f

o r plain error Hudson’s second argument, i.e. , that the district court erred by considering his need for rehabilitation in determining his sentence. This argument is based on the S u p r eme Court’s recent decision in Tapia v. United States , 131 S. Ct. 2382 (2011). In the wake of Tapia , however,

we have held that the limitations on the consideration of rehabilitation at issue in Tapia do not apply in a revocation proceeding. See United States v. Breland , 647 F.3d 284, 287-90 (5th Cir. 20 11). Therefore, this argument is foreclosed. Hudson’s sentence is REVERSED, and the case is remanded for resentencing.

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