United States v. Brown

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opinion should not be published and is not precedent except under the limited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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No. 21-30137

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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