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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff−Appellee, v. Joseph Wayne EVANS, Defendant−Appellant.

No. 18-50693

Decided: January 31, 2019

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant Joseph Wayne Evans, Pro Se

The Federal Public Defender appointed to represent Joseph Evans has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Evans has not filed a response. We have reviewed counsel’s brief and relevant portions of the record. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review, with one exception.

Counsel’s brief and the record reveal the following nonfrivolous appellate issue: whether the sentence is plainly unreasonable because the district court imposed or lengthened the term of imprisonment for an improper reason, specifically Evans’s refusal to commit to entering a drug treatment program. Accordingly, we DENY counsel’s motion to withdraw. See Anders, 386 U.S. at 744, 87 S.Ct. 1396.

Given the pendency of Evans’s release from prison, we conclude that additional briefing would create unnecessary delay, and it is also unnecessary, as we can resolve the case on the record and briefing before us. We thus turn to the merits.

It is debatable whether the district court relied on an improper reason when it imposed sentence. Specifically, it does not appear that the court committed a Tapia error. See Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). In Tapia, the district court lengthened the sentence so that the defendant would qualify for rehabilitation services at the prison while in prison. That approach ran afoul of the statutory admonition that prison is not for rehabilitation. Id. at 334, 131 S.Ct. 2382−35. Here, by contrast, the district court may have been willing to forgo an additional prison sentence if the defendant demonstrated that he was obtaining rehabilitation outside of prison (in what appears to be a program much longer than the prison term at issue), a situation quite different from Tapia. Therefore, the reasonableness of the sentence is subject to reasonable dispute, and the sentence is not plainly unreasonable. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Sanchez, 900 F.3d 678, 682 (5th Cir. 2018).




PER CURIAM: * FN* 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.

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