Case: 21-30137 Document: 00516101708 Page: 1 Date Filed: 11/19/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 19, 2021
No. 21-30137 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Nathaniel Leon Brown,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CR-147-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Nathaniel Leon Brown pleaded guilty to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). He was sentenced to, inter alia, an above-Sentencing Guidelines
*
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opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-30137
term of 84-months’ imprisonment. Brown contends the court imposed a
substantively-unreasonable sentence.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no
such procedural error exists, a properly preserved objection to an ultimate
sentence is reviewed for substantive reasonableness under an abuse-of-
discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
Brown properly preserved his challenge to the substantive
reasonableness of his sentence by requesting a within-Guidelines term. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 764 (2020) (explaining
defendant’s request for specific sentence preserves claim on appeal). (In
addition, he objected to the imposed sentence.)
The district court determined an upward variance was warranted,
based on the 18 U.S.C. § 3553(a) sentencing factors. Brown presents
numerous bases for contesting the sentence. Each basis fails.
First, he asserts his sentence is unreasonable because the conduct
underlying the instant offense was already accounted for by the Guidelines.
The conduct underlying his firearm offense, which included the alleged
kidnapping of his pregnant girlfriend, was not accounted for under the
Guidelines: the court sustained Brown’s objection to the application of
Guideline § 2K2.1(c)(1)(A), the cross-reference provision; and it calculated
his Guidelines sentencing range under § 2K2.1(a), the standard guideline
provision for possession of a firearm by a convicted felon.
Next, Brown maintains the court improperly relied on an irrelevant
factor in considering a prior domestic-violence incident involving his
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No. 21-30137
girlfriend. Prior criminal conduct that is not relevant conduct to the offense
of conviction may, however, be considered, “not as part of [the] current
offense, but as part of [defendant’s] history under [18 U.S.C.] § 3553(a)(1)”.
United States v. Rhine, 637 F.3d 525, 529 (5th Cir. 2011).
For his third point, although Brown maintains the court failed to
properly consider his history of substance abuse as a mitigating factor, the
court was fully aware of such conduct. And, Brown’s assertion the mitigating
factor of his substance-abuse history should have been balanced differently is
insufficient to show abuse of discretion. See United States v. Powell, 732 F.3d
361, 382 (5th Cir. 2013) (explaining appellant’s disagreement with how
factors were balanced insufficient to disturb sentence).
Contrary to Brown’s next point, the court considered the Guidelines
sentencing range of 27 to 33 months. “[T]he sentencing court is free to
conclude that the applicable Guidelines range gives too much or too little
weight to one or more factors and may adjust the sentence accordingly under
[18 U.S.C.] § 3553(a)”. United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008) (citation omitted).
Finally, Brown challenges the extent of the variance. His 84-month
sentence is below the statutory maximum of 10 years. See 18 U.S.C.
§ 924(a)(2). Moreover, our court has upheld significantly greater variances.
See, e.g., United States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010)
(upholding 216-month sentence where Guidelines sentencing range had
maximum 57 months); United States v. Smith, 417 F.3d 483, 492–93 (5th Cir.
2005) (affirming 120-month sentence where the range had maximum 41
months).
Accordingly, considering the totality of the circumstances and giving
appropriate deference to the court’s consideration of the 18 U.S.C. § 3553(a)
factors, the court did not abuse its discretion in imposing Brown’s sentence.
See United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012)
(explaining deference given to sentencing judge who is in “superior position
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to find facts and judge their import under [18 U.S.C.] § 3553(a) with respect
to a particular defendant” (citation omitted)); Gall, 552 U.S. at 51 (noting
appellate court may consider extent of deviation, “but must give due
deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance”).
AFFIRMED.
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