     Case: 12-30638         Document: 00512150559       Page: 1     Date Filed: 02/21/2013




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

                                                                            FILED
                                                                         February 21, 2013
                                     No. 12-30638
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LEO F. HAYMOND, III,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CR-92-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Leo F. Haymond, III, appeals the sentence imposed for his guilty plea
conviction for distributing cocaine base. Haymond was sentenced to 63 months
of imprisonment and three years of supervised release. He contends that the
district court erred by considering his arrests in imposing an upward variance
and that the sentence was substantively unreasonable.
       Sentences      are    reviewed     for   procedural     error    and    substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). The district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-30638

commits a significant procedural error by “selecting a sentence based on
erroneous factors.” United States v. Harris, No. 11-10997, ___ F.3d ___, 2012 WL
6097442, at *2 (5th Cir. Dec. 10, 2012). Since Haymond did not object to the
district court’s consideration of his arrests, our review is for plain error. See
United States v. Williams, 620 F.3d 483, 493 (5th Cir. 2010).
      To show plain error, Haymond must show that the error was clear or
obvious and affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
      For the arrests that the district court specifically mentioned at sentencing,
the PSR described the charges, date, arresting agency, and disposition of each
arrest, described for some of the arrests the facts underlying the charges based
on the offense reports, and explained for some of the arrests that the charges
were dismissed at the victim’s request. Haymond did not object to the factual
accuracy of the portion of the PSR describing these arrests nor offer rebuttal
evidence.   Accordingly, the factual recitations in the PSR of his conduct
underlying these arrests had sufficient indicia of reliability, and the district
court did not err by considering them at sentencing. See Harris, 2012 WL
6097442, at *4.
      Even if the district court erred, Haymond has not met his burden of
showing that his substantial rights were affected. When the district court
formally imposed sentence, it did not mention the arrests and, instead, cited the
under-representation of Haymond’s criminal activity and repeated parole
violations. See Williams, 620 F.3d at 495-96. Haymond’s arguments that the
district court mistakenly believed that he had been convicted of the offenses
underlying the specifically-mentioned arrests and that the Government agreed



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                                   No. 12-30638

that he should be sentenced within the guidelines range are not supported by the
record.
      Even if Haymond’s substantial rights were affected, he does not address
at all whether the alleged error affected the fairness, integrity, or public
reputation of judicial proceedings. Thus, he has failed to demonstrate that he
has satisfied the fourth prong of plain error review. See id. at 496.
      Haymond     devotes    one    sentence   of   argument     to   substantive
reasonableness. This claim of error is waived by virtue of inadequate briefing.
See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




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