     Case: 16-60108       Document: 00513755354         Page: 1     Date Filed: 11/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 16-60108                                FILED
                                   Summary Calendar                      November 10, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NATHAN BURNSIDE, also known as Nathan Jermaine Burnside, also known
as Nate,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:03-CR-23-2


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Nathan Burnside appeals the 42-month sentence imposed after the third
revocation of his supervised release. He contends the sentence — which is less
than the statutory maximum sentence of 60 months and above the advisory
Sentencing Guidelines policy range of 24 to 30 months — is substantively




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 16-60108

unreasonable. In support, Burnside contends the court erred in balancing the
sentencing factors by giving undue weight to some and devaluing others.
      A contention that was not properly preserved in district court is reviewed
only for plain error. Under that standard, defendant must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the reversible plain error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
      Although Burnside did not expressly object to the 42-month sentence, he
maintains he presented a “de facto objection” by arguing for a sentence within
the advisory sentencing range after the court sought arguments against a
higher, statutory sentence. Nonetheless, he did not contend the sentence
imposed was substantively unreasonable, or that the court clearly erred in
balancing the factors, as he does now. Because Burnside did not raise these
issues in district court, review is for plain error. See, e.g., United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012).
      The revocation sentence at issue is to run consecutively to a 60-month
sentence imposed following Burnside’s guilty plea conviction for a new drug
offense.   The court expressly considered the advisory sentencing range in
imposing the revocation sentence. See 18 U.S.C. §§ 3553(a)(4)(B), 3583(e). It
also considered Burnside’s repeated violations of supervision, his approach to
rehabilitation, and his disrespect for the court and federal law, all of which
involve the history and characteristics of the defendant and the need to protect
the public and deter criminal conduct. See § 3553(a)(1), (a)(2)(B), (a)(2)(C).
Accordingly, Burnside has not shown the court committed clear or obvious




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                               No. 16-60108

error in imposing his sentence. See United States v. Whitelaw, 580 F.3d 256,
260, 265 (5th Cir. 2009).
      AFFIRMED.




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