### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60550 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. MARVIN LOUIS NELSON, Defendant - Appellant

A ppeal from the United States District Court for the Northern District of Mississippi USDC No. 2:11-CR-48-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Marvin Louis Nelson a ppeals the 48

- m o n t h i m p o s e d s e n t e n c e f o l l owing his guilty-plea conviction for conspiracy to commit access-device fraud, in violation of 18 U.S.C. §§ 3 71 and 1 029. He first contends his above-Guidelines s entence is procedurally unreasonable because the distr i c t court failed to adequately explain the sentence. Although post- B ooker , the Sentencing Guidelines a re advisory only, and

a pr o perly preserved objection to a n ultimate sentence is r eviewed for reasonableness under an a buse-of-discretion standard, the d i s trict court must U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

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still properly calculate the Guideline-sentencing range f or use in deciding on the sentence to i m p o s e . G a l l v. United States , 552 U

. S. 38, 48-51 (2007). In that respect, i ts application of the Guidelines is reviewed d e novo ; i t s factual findings, only for clear error. E.g. , United States v . Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008); U

nited States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). For the procedural challenge, because Nelson objected o n l y t o the reasonableness of his sentence and not to the adequacy of t he court’s explanation for it, review is only for plain error. E.g. , United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 20 0 9 )

. T o s h o wr e v e r s ib l e p l a i ne r r o r , N e l s o nm u s t

s h o w , i n t e r a l i a , a f

o r f e i t e d e r r o r t h a t i s c l e a r o r o b v i o u s . Pu c k e t t v . U n i t e d S t a t e s , 5 5 6 U

. S

. 1 2 9 , 1 3 5 ( 2 0 0 9 )

. After considering the advisory G uidelines sentencing range, t he s tatutory penalties, and the 18 U.S.C. § 3553(a) sentencing factors, the court concluded an above-Guidelines sentence “woul d b e t ter achieve the statutory purposes of sentencing”. T he court considered the nature and c i rcumstances of Nelson’s offense, his history a nd characteristics, and the need for his sentence to reflect the offense’s seriousness, promote respect f or the law, provide just p u nishment, afford adequate deterrence, and protect the public from similar c r imes. The court described Nelson as “ a danger to society” and found it noteworthy that the instant conviction was his tenth felony conviction, and his fourth c onviction for offenses involving stolen or fraudulent credit cards. Nelson has not shown clear

or obvious error. E.g. , United States v. Key , 599 F.3d 469, 474-75 (5th Cir. 2010) (no procedural error for abo ve-Guidelines sentence w here § 3553 factors extensively discussed). Nelson also m aintains his s e n tence was substantively unreasonable b e c a u s e the stated reasons f or the s entence do n o t support it. As noted, he preserved this o bjection. The substan t ive reasonableness is reviewed under a deferential abuse of discretion standard, t aking into account the totality of the circumstances. Id. at 475.
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The court sufficiently arti c u l ated its reasons for imposing the above-Guidelines sentence, e .g. , id. at 474-75 , a n d it was not precluded from

c o n s i d e r i n g f

a c t o r s a l r e a d y i n c o rporated into N elson’s G uidelines calculat i o n , s e e United S tates v. B rantley , 537 F.3d 347, 350 (5th Cir. 2008). The court p roperly relied on the § 3553(a) f actors in imposing an upward variance and determining the extent of that variance. E.g. , id. at 349. AFFIRMED.

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