IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20175

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOVANNA RENEE GARDNER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CR-199-2

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jovanna Renee Gardner appeals the 27-month term of imprisonment 

imposed following her guilty plea conviction of misprision of a felony. She 

contends that her sentence is procedurally and substantively unreasonable as 

well as unconstitutionally disproportionate to her offense.

Generally, we review criminal sentences for reasonableness. Gall v. 

United States, 552 U.S. 38, 46 (2007). We first determine whether the district 

* 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 16, 2014

Lyle W. Cayce

Clerk

 

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No. 13-20175

court committed any procedural errors, such as improperly calculating the 

defendant’s advisory sentencing-guidelines range. Id. at 51. In making that 

determination, we review the district court’s findings of fact for clear error and 

its interpretation and application of the Sentencing Guidelines to those facts 

de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

If the district court’s sentencing decision is procedurally sound, we will 

“consider the substantive reasonableness of the sentence imposed under an 

abuse-of-discretion standard. . . . tak[ing] into account the totality of the 

circumstances.” Gall, 552 U.S. at 51. 

Gardner argues that the district court procedurally erred when it 

enhanced her sentence under United States Sentencing Guideline 

§ 2B1.l(b)(H) based on the intended loss resulting from the fraudulent scheme 

underlying her offense. Gardner preserved this challenge to her sentence 

through her objections to the presentence report. However, she has not shown,

in light of her knowledge of, and participation in, the fraudulent scheme of 

Irvin Warren Lawrence, that the district court erred in its method of 

determining the amount of intended loss or clearly erred in calculating that 

intended loss. See United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008); 

United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999).

For the first time on appeal, Gardner argues that her sentence is 

substantively unreasonable because it is greater than necessary to achieve the 

goals of 18 U.S.C. § 3553(a). When a defendant raises a sentencing challenge 

on appeal that she did not present to the district court, we will review the 

decision for plain error only. See Puckett v. United States, 556 U.S. 129, 135 

(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To prevail 

on plain error review, a defendant must show that an error occurred, that the 

error was clear or obvious, and that the error affected her substantial rights. 

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Peltier, 505 F.3d at 392. If those factors are established, we have the discretion 

to correct the forfeited error, but we will not exercise that discretion unless the 

error seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. Id. Gardner contends that a shorter sentence is appropriate 

because she played a minimal role in the fraudulent scheme and her offense 

did not physically harm anyone. Gardner’s disagreement with the district 

court’s assessment of an appropriate sentence does not rebut the presumption 

of reasonableness that attaches to her within-guidelines sentence and does not 

establish an abuse of discretion. See Gall, 552 U.S. at 51; United States v. 

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Gardner has not shown error, plain 

or otherwise.

For the first time on appeal, Gardner also argues that her sentence 

violates the Eighth Amendment to the Constitution because it is grossly 

disproportionate to her offense. In analyzing whether a defendant’s sentence 

is so grossly disproportionate to her offense that it constitutes cruel and 

unusual punishment, we make a threshold comparison of the gravity of the 

offense against the severity of the sentence imposed. United States v. Thomas, 

627 F.3d 146, 160 (5th Cir. 2010). Only if that threshold comparison suggests 

disproportionality will we conduct a deeper inquiry into sentences for similar 

crimes in the same and other jurisdictions. Id. The federal sentencing 

guidelines are a “convincing objective indicator of proportionality.” United 

States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). Gardner’s 27-

month sentence was within her properly calculated advisory guidelines range. 

Thus, she has not shown that her sentence is grossly disproportionate to her 

offense. See id. 

AFFIRMED.

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