Case: 21-30708 Document: 00516392767 Page: 1 Date Filed: 07/13/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 13, 2022 No. 21-30708 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Roderick A. Davis, Defendant—Appellant.

Appeal from the United States District Court for the Middle District of Louisiana No. 3:21-CR-2-1

Before Smith, Dennis, and Southwick, Circuit Judges.

Per Curiam:* Roderick Davis appeals the sentence imposed on his conviction of two counts of possession of a firearm after felony conviction. He contends that the district court procedurally erred by assessing two criminal history points under U.S.S.G. § 4A1.1(d) based on its determination that he committed his

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5th Circuit Rule 47.5.4.

Case: 21-30708 Document: 00516392767 Page: 2 Date Filed: 07/13/2022

No. 21-30708

offenses while under a criminal justice sentence. Davis urges that under Louisiana law, his terms of probation for the relevant prior offenses had expired by the time he committed the instant offenses—specifically, that the bench warrants issued in those prior cases did not extend his terms of proba- tion because authorities failed to execute the warrants when they had the opportunity to do so. In his reply brief, Davis also appears to contend that the type of bench warrants issued related to his deferred-adjudication sen- tence and did not extend his probation under Louisiana law.

As Davis concedes, because he did not present this argument in the district court, his claim is reviewed for plain error only. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). To establish plain error, an appellant must show, inter alia, a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).

Under § 4A1.1(d), two points are added “if the defendant committed the instant offense while under any criminal justice sentence,” including pro- bation. For purposes of § 4A1.1(d), “a defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding,” including a warrant related to probation, “shall be deemed to be under a crim- inal justice sentence if that sentence is otherwise countable, even if that sen- tence would have expired absent such warrant.” U.S.S.G. § 4A1.2(m).

These guidelines provisions “do not require us to assess the state authorities’ diligence in executing a violation warrant.” United States v. Anderson, 184 F.3d 479, 481 (5th Cir. 1999).

Davis fails to show that the district court clearly or obviously erred.

See Puckett, 556 U.S. at 135; Anderson, 184 F.3d at 481. Accordingly, the judg- ment is AFFIRMED.