USA v. Kevin Brook

Filing

UNPUBLISHED OPINION FILED. [12-10573 Affirmed ] Judge: EHJ , Judge: JLD , Judge: CH Mandate pull date is 03/27/2013 for Appellant Kevin Dewayne Brooks [12-10573]

Case: 12-10573

Document: 00512165729

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Date Filed: 03/06/2013

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

FILED
No. 12-10573
Summary Calendar

March 6, 2013
Lyle W. Cayce
Clerk

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,

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10573

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Date Filed: 03/06/2013

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 United States 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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