IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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

United States Court of Appeals

Fifth Circuit

F I L E D

February 21, 2013

Lyle W. Cayce

Clerk

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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