United States Court of Appeals

for 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 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2021

Lyle W. Cayce

Clerk

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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-ofdiscretion 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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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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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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