United States v. Franklin Garcia

Case: 11-10287 Document: 00511657183 Page: 1 Date Filed: 11/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 7, 2011
No. 11-10287
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANKLIN GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-15-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Franklin Garcia appeals the 24-month sentence of imprisonment imposed
following the revocation of a previously imposed term of supervised release. He
argues that the district court erred by considering rehabilitation in determining
his sentence. He also argues that the district court failed to explain why the
sentence chosen was necessary to promote rehabilitation. The Government
moves for summary affirmance, asserting that Garcia’s arguments are
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10287 Document: 00511657183 Page: 2 Date Filed: 11/07/2011
No. 11-10287
foreclosed. In the alternative, the Government seeks an extension of time to file
an appellate brief.
Garcia’s first argument, that the district court erred by considering
rehabilitation, is based on the Supreme Court’s recent decision in Tapia v.
United States, 131 S. Ct. 2382 (2011). However, as the Government correctly
points out, 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. 2011). Therefore, this
argument is foreclosed.
However, because Garcia’s appellate brief raises a second argument that
is not foreclosed, the Government’s motion for summary affirmance is denied.
As we see no need for further briefing, the Government’s alternative motion for
an extension of time to file an appellate brief is denied as unnecessary.
Although Garcia generally objected to the reasonableness of the sentence,
we conclude that he failed to preserve his specific argument that the district
court failed to adequately explain why the sentence imposed would promote
rehabilitation. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
Therefore, we review for plain error. Puckett v. United States, 556 U.S. 129, 129
S. Ct. 1423, 1429 (2009). However, we conclude that any error in failing to
adequately explain the reasons for the sentence does not warrant relief under
plain error review because Garcia cannot show prejudice. See United States v.
Whitelaw, 580 F.3d 256, 261-65 (5th Cir. 2009).
AFFIRMED; MOTIONS DENIED.
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