     Case: 12-30129       Document: 00512266797         Page: 1     Date Filed: 06/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            June 7, 2013
                                     No. 12-30129
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEVIN FORREST,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:07-CR-60054-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kevin Forrest pleaded guilty to one count of possession with intent to
distribute cocaine. He was deemed a career offender and sentenced within the
guidelines range to 211 months in prison. Forrest argues on appeal that the
district court erred in classifying him as a career offender because he was not
actually convicted of his predicate offenses. In particular, Forrest asserts that
he never pleaded guilty to the charges, that the Louisiana state court found that
he was not competent to stand trial on the charges, and that he was released to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30129     Document: 00512266797      Page: 2    Date Filed: 06/07/2013

                                   No. 12-30129

probation, which was subsequently revoked and then released after his stay in
a mental health facility.
      A defendant is a career offender if he was at least 18 years old at the time
of the offense, the offense is a felony crime of violence or controlled substance
offense, and the defendant has at least two prior felony convictions for either a
crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. Pursuant
to § 4B1.2, comment. (n.3), the definitions in U.S.S.G. § 4A1.2 are used to
determine what qualifies as a predicate conviction under § 4B1.1.
      Because Forrest did not object to the career offender enhancement in the
district court, we review this issue for plain error. To show plain error, he must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If Forrest makes
such a showing, this court has the discretion to correct the error, but it will do
so only if the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
      Forrest’s career offender argument fails for at least two reasons. First,
because this court has not addressed whether Forrest’s probation, which was
imposed pursuant to former Louisiana Code of Criminal Procedure article 648,
and the subsequent revocation of that probation, constitutes a conviction for
purposes of § 4B1.1, Forrest cannot show that any error was clear or obvious.
See United States v. Escalante-Reyes, 689 F.3d 415, 418-22 (5th Cir. 2012) (en
banc); see also United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007).
      Second, Forrest cannot show an effect on his substantial rights because he
cannot establish a reasonable probability of a lower sentence on remand. See
Escalante-Reyes, 689 F.3d at 424. In particular, the district court gave an
extensive and thorough discussion of the 18 U.S.C. § 3553(a) factors, asserted
that it would impose the same sentence regardless of any error in the guidelines
calculations, and stated that Forrest’s sentence was similar to that of a



                                         2
    Case: 12-30129     Document: 00512266797      Page: 3    Date Filed: 06/07/2013

                                  No. 12-30129

codefendant. In light of the foregoing, Forrest has not established plain error in
connection with the career offender enhancement.
      Forrest also contends that his 211-month sentence is substantively
unreasonable based on his mental incompetency and his drug addiction. The
district court considered Forrest’s arguments for a lesser sentence, including his
mental health and drug addiction problems, as well as the presentence report.
The district court found noteworthy that Forrest had committed a serious drug
offense that involved large quantities of various drugs, that he repeatedly
engaged in drug trafficking after he was diverted from criminal prosecution, and
that he avoided criminal prosecution by malingering; as such, the court
determined that the public needed to be protected from him and that he was
likely to recidivate. In addition, the court noted that Forrest’s sentence was
similar to a codefendant’s sentence and also stated that his sentence should be
reduced by 94 months for time served, which would result in “an actual sentence
of 117 months.”       The record reflects that the district court made an
individualized assessment based on the facts of Forrest’s case in light of the
§ 3553(a) factors. See Gall, 552 U.S. at 49-50. Moreover, because the district
court stated that even if it had erred in calculating the guidelines range, it would
impose the same sentence, Forrest cannot establish that any error affected his
substantial rights. See Escalante-Reyes, 689 F.3d at 424. Forrest has not shown
that the district court committed error, plain or otherwise, in connection with
the substantive reasonableness of his sentence. See Puckett, 556 U.S. at 135.
      The judgment of the district court is AFFIRMED.




                                         3
