Case: 14-30292 Document: 00513352201 Page: 1 Date Filed: 01/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-30292
Fifth Circuit
FILED
Summary Calendar January 22, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
THOMAS A. NELSON, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CR-99
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
After Thomas A. Nelson, Jr., was convicted of various corruption offenses
related to his position as mayor of New Roads, Louisiana, his convictions were
affirmed on direct appeal. United States v. Nelson, 732 F.3d 504, 509–25 (5th
Cir. 2013). On the other hand, his sentence was vacated because the district
court incorrectly calculated the advisory sentencing range under the
Sentencing Guidelines due to an inaccurate loss calculation. Id. at 520–25.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-30292
On remand for resentencing, the parties stipulated to an amount of loss,
which resulted in a sentencing range of 151 to 188 months’ imprisonment. The
court varied downward, and sentenced Nelson to 120 months.
Nelson contends his sentence is procedurally unreasonable; he does not
present a substantive-unreasonableness challenge. Along that line, although
post-Booker, the Guidelines are advisory only, and a properly preserved
objection to an ultimate sentence is reviewed for reasonableness under an
abuse-of-discretion standard, the district court must still properly calculate the
advisory sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 552 U.S. 38, 48–51 (2007).
But, as Nelson concedes, because he did not raise in district court the
issue presented here, review is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Nelson
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we
have the discretion to correct the error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of [the] proceedings”. Id.
In seeking relief under plain-error review, Nelson asserts his sentence is
procedurally flawed because, in applying the 18 U.S.C. § 3553(a) factors, the
court failed to note his cooperation with authorities. Although the Government
did not file a motion for a downward departure pursuant to Guideline § 5K1.1,
Nelson avers the court committed the requisite clear-or-obvious error by failing
to exercise its discretion to consider his substantial assistance. In that regard,
he maintains United States v. Robinson compels an exercise of such discretion.
See 741 F.3d 588, 599–602 (5th Cir. 2014).
In Robinson, our court held a district court has “discretion to consider
evidence of cooperation under § 3553(a)” even if the Government does not file
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No. 14-30292
a § 5K1.1 motion. Id. at 601. There, defendant produced evidence of his
cooperation, but the district court wrongfully “concluded it did not have the
authority” to consider such evidence. Id. Unlike Robinson, nothing in the
record at hand indicates the district court declined to consider evidence of
Nelson’s cooperation based on an erroneous belief it lacked authority to do so.
Accordingly, Nelson fails to establish the requisite clear-or-obvious error.
AFFIRMED.
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