### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30638 Summary Calendar

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 s e n t e n c e imposed for his guilty plea conviction for distributing cocaine base. Haymond was sentenced to 63 months of im p ri s o n m ent 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 21 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30638 Document: 00512150559 Page: 1 Date Filed: 02/21/2013No. 12-30638

commits a s i gnificant procedural error by “selecting a sentence based on
erroneous factors.” United States v. Harris , No. 11-10997,

___ F.3d ___, 2012 WL 6097442, a t *2 (5th Cir. Dec. 10, 2012). Since Haymond did not object to the district court’s consi d e r at i on of his arrests, our review is for plain error. See United States v. Williams , 620 F.3d 483, 493 (5th Cir. 201 0). To show plain error, H a y m o n d 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 s e nt e ncing, 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 arr ests 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 arr e s ts nor offer rebuttal eviden c e . Accordingly, the factual recitations in the PSR of his conduct underlying th e se arrests had sufficient indicia of reliability, and the district court did not err by consideri n g t hem at sentencing. See Harris , 2012 WL 6097442, at *4. Even if t h e di s t ri ct court erred, Haymond has not met his burden of showing that his substantial ri ghts 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 p a r o le violat i o n s . Se e Williams , 620 F.3d at 495-96. Haymond’s arguments that the district court mistakenly believed that he h a d been convicted of the offenses underlying the specifically-mentioned arrests and that the Government agreed

2 Case: 12-30638 Document: 00512150559 Page: 2 Date Filed: 02/21/2013No. 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 p ub lic reputation of judicial proceedings. Th u s , h e has failed to demonstrate that he has satisfied the fourth prong of plain error review. See id. at 496. Haymond devot e s o n e 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. 201 0). The judgment of the district court is AFFIRMED.

3 Case: 12-30638 Document: 00512150559 Page: 3 Date Filed: 02/21/2013