Case: 09-60798 Document: 00511134047 Page: 1 Date Filed: 06/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2010
No. 09-60798
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MERLIN W. WINTERS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:08-CR-60-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Merlin W. Winters appeals the 36-month sentence imposed by the district
court as unreasonable. Winters’s sole argument on appeal is that the sentence
was unreasonable in light of Winters’s need for treatment for drug addiction. As
he did not preserve his objection to the sentence, however, we review for plain
error. See United States v. Hernandez-Martinez, 485 F.3d 270, 274 (5th Cir.
2007). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 Date Filed: 06/07/2010
No. 09-60798
The record demonstrated, and counsel argued, that Winters has a serious
drug addiction. The court concluded that a lengthy period of incarceration would
permit Winters to have access to the 500-hour drug rehabilitation program
available through the Bureau of Prisons. The court was motivated by a desire
to ensure that Winters had sufficient opportunity to overcome his addiction and
return from prison a productive member of society. This was an appropriate
factor to consider in assessing the sentence. See United States v. Pena, 125 F.3d
285, 288 (5th Cir. 1997); 18 U.S.C. § 3553(a). Further, the sentence was well
below the statutory maximum of five years, which “strongly counsels against its
being held reversible on plain error review.” Hernandez-Martinez, 485 F.3d at
274.
AFFIRMED.
2