### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10531 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. KEVIN DEANTHONY TE R RY , also known as D etroit, also k nown a s Darrell, also known as KD, Defendant-Appellant

Appeal from the United States District Court f or the Northern District of Texas USDC No. 5:11-CR-52-1

Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges. 1 PER CURIAM: ** Kevin Deanthony Terry appeals t h e s entence imposed after revocation of h i s supervised release. Terry a rgues that his 18-month s entence i s u n r e a s o n a b l e because the d istrict court relied on a prohibited sentencing factor, his need for a support system and a place to live, to impose or lengthen the sentence. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 29, 2013 Ly l e W . Cay ce Clerk

1 G raves , Circuit Jud ge, concurs in the jud gm ent only.

* * Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10531 Document: 00512191523 Page: 1 Date Filed: 03/29/2013No. 12-10531

Because T erry did not object to the r easonableness of his sentence based upon the district court’s reference to h is h omelessness/rehabilitative n eeds, our review of that issue is limited to plain e rror. See United States v. Garza ,
___ F.3d ___, No. 11-10543, 2013 WL 398760 at *4 (5th C i r .Feb. 1, 2 013). I n Tapia

v. U nited S tat e s , 131 S. Ct. 2382, 2393 (2011), t he Supreme Court held in the context of an appeal from a n i n i t i a l s entencing that a district c ourt “may not impose or lengthen a p r i s on sentence to enable a n offender to c o mplete a treatment program o r otherwise to p r o m ote rehabilitation.” We have now concluded that the holding in Tapia applies with equal force in the c ontext of a revocation sentencing. Garza , 2013 WL 398760 at **2-3. The district court in t his case stated that a n 18-month sentence was proper because it w ould afford adequate deterrence, protect the p ublic, and give Terry, who was homeless, a support system and a place to live. This statement

was t h e district court’s sole remark regarding Terry’s particular needs. As the record does not indicate that the district court impose d o r l engthened Terry’s prison term for the purpose of making him eligible f or a n y r e habilitative program, no Tapia error occurred. See United States v. Receskey , 699 F.3d 807, 811-12 (5th Cir. 2012). Even if the district c ourt’s m ention of Terry’s need for

a s upport system a n d a place to live could be construed as a reliance on his rehabilita t i v e n e e d s in imposing sentence, there is no error. In light of the district court’ s s t a tement t hat it imposed the sentence to provide a dequate deterrence a nd to protect the public, the record d oes not indicate that Terry’s need for t reatment was a dominant factor in the court’s s entencing analysis. See Garza , 2013 WL 398760 at **3-4; Receskey , 699 F.3d at 812. Accordingly, the judgment of the district court is AFFIRMED.

2 Case: 12-10531 Document: 00512191523 Page: 2 Date Filed: 03/29/2013