IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30292

Summary Calendar

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

January 22, 2016

Lyle W. Cayce

Clerk

 Case: 14-30292 Document: 00513352201 Page: 1 Date Filed: 01/22/2016
No. 14-30292

2

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

 Case: 14-30292 Document: 00513352201 Page: 2 Date Filed: 01/22/2016
No. 14-30292

3

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.

 Case: 14-30292 Document: 00513352201 Page: 3 Date Filed: 01/22/2016