United States Court of Appeals

for the Fifth Circuit

No. 20-10087

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Zavion Nunley, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-197-1

Before Wiener, Southwick, and Duncan, Circuit Judges.

Per Curiam:*

Zavion Nunley appeals his 96-month sentence of imprisonment for 

possession of a firearm by a convicted felon, in violation of 18 U.S.C. 

§ 922(g)(1) and 18 U.S.C. § 924(a)(2). He contends that his aboveguidelines sentence was substantively unreasonable because the district court 

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opinion should not be published and is not precedent except under the limited 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

December 8, 2020

Lyle W. Cayce

Clerk

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failed to adequately consider his traumatic childhood and the disparities the 

sentence would create between Nunley and similarly situated defendants. 

Further, Nunley argues that the district court erred by ordering that two of 

his anticipated state sentences would run consecutively to his federal 

sentence because the conduct involved in those pending state charges was 

relevant conduct to the federal offense.

Here, the district court relied on appropriate factors in determining 

that an upward variance was warranted, as its reasons addressed Nunley’s 

history and characteristics, and the needs to deter Nunley from future 

criminal conduct and to protect the public. See 18 U.S.C. § 3553(a); United 

States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Nunley 

contends that the district court failed to consider his upbringing, but the 

district court clearly did and determined that Nunley’s extensive criminal 

history warranted an upward variance. Further, Nunley does not show that 

he received a higher sentence than other criminal defendants nationwide who 

were similarly situated in terms of offense conduct, acceptance of 

responsibility, criminal history, or guidelines calculations. See United States 

v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010); United States 

v. Candia, 454 F.3d 468, 476 (5th Cir. 2006). Nothing suggests that the 

district court failed to consider a factor that should have received significant 

weight, gave significant weight to an improper factor, or made a clear error 

of judgment in balancing the sentencing factors; therefore, we defer to the 

district court’s determination that the § 3553(a) factors, on the whole, 

warrant the variance and justify the extent of the upward variance imposed. 

See United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012); 

United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012).

Nunley argues that his state charges for burglary of a vehicle and theft 

of a firearm were relevant conduct to the instant federal offense because they 

involved the pistol that was the subject of the federal offense. Thus, he claims 

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that the district court mistakenly failed to order these relevant conduct 

offenses to run concurrently with his federal sentence, pursuant to U.S.S.G. 

§ 5G1.3. Nunley did not raise this issue before the district court, and 

therefore, plain error review applies. See United States v. MondragonSantiago, 564 F.3d 357, 364 (5th Cir. 2009). To establish plain error, Nunley

must show a forfeited error that is clear or obvious and that affected his 

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If 

he makes such a showing, this court has the discretion to correct the error 

but should do so only if it seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. Id. 

In this case, the district court adopted the presentence report, which 

found that the state sentences that were ordered to run concurrently were 

related to the instant federal offense. The district court ordered the other 

anticipated state sentences for unrelated conduct to run consecutively. 

Additionally, the concurrent anticipated state sentences were for offenses 

related to possessing or firing a firearm, and the consecutive anticipated state 

sentences were for offenses comprising all other criminal conduct, including 

the contested burglary and theft offenses. The district court did not make 

any findings with respect to relevant conduct, and therefore Nunley’s claim 

of a mistaken relevant conduct determination does not constitute a clear or 

obvious error on plain error review. Further, the district court had the 

discretion to order the sentences for the related state offenses to run 

concurrently and the other anticipated state sentences to run consecutively 

to the federal sentence, and the record shows that the district court did not 

exceed its discretion. See Setser v. United States, 566 U.S. 231, 236-37 (2012). 

Therefore, Nunley has not demonstrated an error, plain or otherwise. See 

Puckett, 556 U.S. at 135.

Given the foregoing, the judgment of the district court is 

AFFIRMED.

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