IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60550

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARVIN LOUIS NELSON,

Defendant - Appellant

Appeal 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 appeals the 48-month imposed sentence following his

guilty-plea conviction for conspiracy to commit access-device fraud, in violation

of 18 U.S.C. §§ 371 and 1029. He first contends his above-Guidelines sentence

is procedurally unreasonable because the district court failed to adequately

explain the sentence.

Although post-Booker, the Sentencing 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

United States Court of Appeals

Fifth Circuit

F I L E D

March 13, 2013

Lyle W. Cayce

Clerk

* 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. 12-60550

still properly calculate the Guideline-sentencing range for use in deciding on the

sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that

respect, 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); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). 

For the procedural challenge, because Nelson objected only to the

reasonableness of his sentence and not to the adequacy of the 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. 2009). To show reversible plain error, Nelson must

show, inter alia, a forfeited error thatis clear or obvious. Puckett v. United States,

556 U.S. 129, 135 (2009).

After considering the advisory Guidelines sentencing range, the statutory

penalties, and the 18 U.S.C. § 3553(a) sentencing factors, the court concluded an

above-Guidelines sentence “would better achieve the statutory purposes of

sentencing”. The court considered the nature and circumstances of Nelson’s

offense, his history and characteristics, and the need for his sentence to reflect

the offense’s seriousness, promote respect for the law, provide just punishment,

afford adequate deterrence, and protect the public from similar crimes. 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 conviction 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 above-Guidelines sentence where § 3553 factors

extensively discussed).

Nelson also maintains his sentence was substantively unreasonable

because the stated reasons for the sentence do not support it. As noted, he

preserved this objection. The substantive reasonableness is reviewed under a

deferential abuse of discretion standard, taking into account the totality of the

circumstances. Id. at 475. 

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The court sufficiently articulated its reasons for imposing the

above-Guidelines sentence, e.g., id. at 474-75, and it was not precluded from

considering factors already incorporated into Nelson’s Guidelines calculation, see

United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The court properly

relied on the § 3553(a) factors in imposing an upward variance and determining

the extent of that variance. E.g., id. at 349. 

AFFIRMED.

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