IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10573 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KEVIN DEWAYNE BROOKS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:11-CR-196-4

Before JONES, DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Kevin Dewayne Brooks appeals the 70-month sentence of imprisonment

imposed by the district court following his guilty plea conviction of making,

possessing, and uttering a forged and counterfeit security, and aiding and

abetting. He argues that his sentence is procedurally unreasonable because the

district court did not address his argument that his mental health disorders

should be taken into account in determining his sentence. In a similar vein,

United States Court of Appeals

Fifth Circuit

F I L E D

March 6, 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. 12-10573

Brooks asserts that the district court’s failure to consider his mental health

disorders resulted in a substantively unreasonable sentence.

Following United States v. Booker, 543 U.S. 220 (2005), our review of

sentences is for reasonableness in light of the sentencing factors set forth in

18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49-51 (2007). We

engage in a bifurcated review, first ensuring that the district court committed

no significant procedural error. See id. at 51. If the sentence is procedurally

sound, we then consider whether the sentence is substantively reasonable. Id.

We recognize three types of sentences: a sentence within the advisory

guidelines range, “an upward or downward departure as allowed by the

Guidelines,” and a non-Guideline “variance” that is not based on the Guidelines

rules for departures. United States v. Brantley, 537 F.3d 347, 349 (5th Cir.

2008). The district court explained that its chosen sentence was appropriate

both as an upward departure under U.S.S.G. § 4A1.3 and as an upward variance

from the guideline range of 37 to 46 months of imprisonment. The

characterization, however, is not significant if “the sentence imposed was

reasonable under the totality of the relevant statutory factors.” Id.

Brooks’s general objection to the procedural reasonableness of his sentence

was insufficiently specific to preserve the issue he raises on appeal. See United

States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Accordingly, we review his

procedural reasonableness challenge for plain error. See UnitedStates v. Peltier,

505 F.3d 389, 391-92 (5th Cir. 2007). To succeed on plain error review, Brooks

must show (1) a forfeited error (2) that is clear or obvious and (3) that affects his

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he

makes that showing, this court may exercise its discretion “to remedy the

error . . . if the error seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (internal quotation marks, bracketing, and citation

omitted).

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No. 12-10573

“[W]hen a judge decides simply to apply the Guidelines to a particular

case, doing so will not necessarily require lengthy explanation.” Rita v. United

States, 551 U.S. 338, 356 (2007). However, “[w]here the defendant or prosecutor

presents nonfrivolous reasons for imposing a different sentence . . .the judge will

normally go further and explain why he has rejected those arguments.” Id. at

357. Nevertheless, the district court is not required to provide specific reasons

for its rejection of a defendant’s arguments for a lower sentence. See id.

After reviewing the record, we are satisfied that the district court provided

a sufficient explanation for its above-guidelines sentence. See id. at 356-57. 

However, even assuming arguendo that the district court erred by failing

explicitly to address Brooks’s argument concerning his mental health disorders, 

Brooks has not made the required showing of an effect on his substantial rights 

See United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir. 2009).

Brooks has failed to show reversible procedural error.

We review the substantive reasonableness of Brooks’s sentence under a

deferential abuse of discretion standard, taking into account the totality of the

circumstances. See United States v. Key, 599 F.3d 469, 475 (5th Cir. 2010). Our

examination of the record and of the totality of the circumstances satisfies us

that the district court properly relied on the § 3553(a) factors in deciding to

impose an upward variance and in determining the extent of that variance. See

Brantley, 537 F.3d at 349.

The judgment of the district court is AFFIRMED.

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