### 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 substantivel y 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 16, 2014

Lyle W. Cayce Clerk Case: 13-20175 Document: 00512503550 Page: 1 Date Filed: 01/16/2014No. 13

- 20175

c ourt committed any procedura l 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 Sentenci ng 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 Unite d States Sentencing Guideline § 2B1.l (b)(H) based on the intended loss resulting from the fraud ulent scheme underlying her offense. Gardner preserved this challenge to her sentence through her objections to the pre sentence report. However, she has not shown , in light of her knowledge of, and participation in, the fraudulent scheme of Irvin Warren Lawrence, tha t the district court erred in its method of determining the amount of intended loss or clearly erred in cal culating 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 i t 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 Stat es , 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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- 20175

Peltier , 505 F.3d at 392. If those factors are established, we have the discretion to correct the forfeited error , but we w ill 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 i s appropriate because she played a minimal role in the fraudulent scheme and her offense did not physi cally 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 show n error , plain or otherwise. For the first time on appeal, Gardner also argues that her sentence violates the Eighth Amendment to the Constitution becaus e it is grossly disproportionate to her offense. In analyzing whether a defendant’s sentence is so grossly disprop ortionate to her offense that it constitutes cruel and unusual punishment, we make a threshold comparison of the gravity of the offense again st 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 simi lar

c rimes in the same and other ju risdictions. Id . T he 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 adviso ry guidelines range. Thus, she has not shown that her sentence is grossly disproportionate to her offense. See id

. AFFIRMED.

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