USA v. Merlin Winters

Filing 511134047

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USA v. Merlin Winters Doc. 511134047 Case: 09-60798 Document: 00511134047 Page: 1 Date Filed: 06/07/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60798 S u m m a r y Calendar June 7, 2010 Lyle W. Cayce Clerk U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. M E R L I N W. WINTERS, D e fe n d a n t-A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 1:08-CR-60-1 B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* M e r lin W. Winters appeals the 36-month sentence imposed by the district c o u r t as unreasonable. Winters's sole argument on appeal is that the sentence w a s unreasonable in light of Winters's need for treatment for drug addiction. As h e did not preserve his objection to the sentence, however, we review for plain e r r o r . See United States v. Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir. 2 0 0 7 ). Finding none, we affirm. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60798 Document: 00511134047 Page: 2 No. 09-60798 Date Filed: 06/07/2010 T h e record demonstrated, and counsel argued, that Winters has a serious d r u g addiction. The court concluded that a lengthy period of incarceration would p e r m it Winters to have access to the 500-hour drug rehabilitation program a v a ila b l e through the Bureau of Prisons. The court was motivated by a desire t o ensure that Winters had sufficient opportunity to overcome his addiction and r e t u r n from prison a productive member of society. This was an appropriate fa c to r to consider in assessing the sentence. See United States v. Pena, 125 F.3d 2 8 5 , 288 (5th Cir. 1997); 18 U.S.C. 3553(a). Further, the sentence was well b e l o w the statutory maximum of five years, which "strongly counsels against its b e i n g held reversible on plain error review." Hernandez-Martinez, 485 F.3d at 274. A F F IR M E D . 2

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