#### UNITED STATES of America, Appellee, v. Anthony HARRY, Defendant-Appellant.

No. 13-2749-cr.

United States Court of Appeals, Second Circuit.

May 20, 2014.

Arza Feldman, Feldman and Feldman, Uniondale, N.Y., for Appellant.

Adam J. Fee, Assistant United States Attorney for the Southern District of New York (Preet Bharara, United States Attorney, Michael A. Levy, Assistant United States Attorney, on the brief) New York, N.Y., for Appellee.

Present: JOHN M. WALKER, JR., ROSEMARY S. POOLER and RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Anthony Harry appeals from the July 11, 2013 judgment of the United States District Court for the Southern District of New York (Sullivan, *J.)*revoking his term of supervised release and sentencing him to a term of six months’ imprisonment to be followed by 30 months’ supervised release. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review the reasonableness of the sentence under an abuse of discretion standard. *Gall v. United States,*552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The reasonableness inquiry comprises two parts: procedural and substantive review. *United States v. Gavera,*550 F.3d 180, 189 (2d Cir.2008). “A district court commits procedural error where it fails to calculate the Guidelines range ..., makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.” *Id.*at 190 (citations omitted). A district court’s substantive determination is set aside “only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” *Id.*at 189 (internal quotation marks, citation, and emphasis omitted). In reviewing for substantive error, we “take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” *Id.*at 190 (citation omitted).

Harry argues that the district court erred by basing the length of his sentence on his need for mental health treatment in violation of 18 U.S.C. § 3582(a) as construed in *Tapia v. United States,*— U.S. -, 131 S.Ct. 2382, 2391, 180 L.Ed.2d 357 (2011) (precluding sentencing courts from *101imposing or lengthening prison term to promote offender’s rehabilitation). *Tapia*applies when a court sentences a defendant after revoking a term of supervised release. *United States v. Lifshitz,*714 F.3d 146, 150 (2d Cir.2013). There is no question that while the district court was aware of, and sensitive to, Harry’s mental health issues, it imposed its penal sentence based on Harry’s repeat pattern of violating the terms of his supervised release, not to ensure that he was receiving mental health treatment. There is no *Tapia*violation. *See United States v. Gilliard,*671 F.3d 255, 259 (2d Cir.2012) (district courts may “discuss the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs” and make recommendations to the Bureau of Prisons concerning rehabilitation without running afoul of *Tapia).*It is also plain from the sentencing colloquy that the need to have Harry participate in a mental health treatment program fully informed the district court’s supervised release sentence. However, as *Tapia*recognized, a district court is free to consider rehabilitation goals in imposing non-penal sentences such as terms of supervised release. 131 S.Ct. at 2390 (Sentencing Reform Act “instructs courts, in deciding whether to impose probation or supervised release, to consider whether an offender could benefit from training and treatment programs.”). Again, we find no error.

We have examined the remainder of Harry’s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.