# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 30137 Summary Calendar

**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* Pursuant to **5th Cir cui**  **t R**  **ule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 19, 2021 Lyle W. Cayce Clerk Case: 21-30137 Document: 00516101708 Page: 1 Date Filed: 11/19/2021No. 21

- 30137

2 term of 84

- month s’ imprisonment. Brown contends the court impos ed 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 preserv ed 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

c ourt, 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 reasonablene ss 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 sente nce.) 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 a sserts his sentence is unreasonable becau se 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 G uidelines : the court sustained Brown’s objection to the application of G uideline § 2K2.1(c)(1)(A) , the cross

- refer e nce 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 d o mestic

- violence incident involving his Case: 21-30137 Document: 00516101708 Page: 2 Date Filed: 11/19/2021No. 21

- 30137

3 girlfriend. P rior criminal conduct that is not relevant c onduct 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, a lthough 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 ba lanced 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 G uidelines sentencing range of 27 to 33 months. “[T]he sentencing court is free to conclude that the applicable G uidelines range gives too much or too little weight to one or more factors and may ad just 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 G uidelines 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, c onsidering the totality of the circumstances and giving appropriate deference to the court’s consider ation 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 pos ition Case: 21-30137 Document: 00516101708 Page: 3 Date Filed: 11/19/2021No. 21

- 30137

4 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**

. Case: 21-30137 Document: 00516101708 Page: 4 Date Filed: 11/19/2021