     Case: 12-60550       Document: 00512173367         Page: 1     Date Filed: 03/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 13, 2013
                                     No. 12-60550
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARVIN LOUIS NELSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:11-CR-48-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Marvin Louis Nelson appeals the 48-month imposed sentence following his
guilty-plea conviction for conspiracy to commit access-device fraud, in violation
of 18 U.S.C. §§ 371 and 1029. He first contends his above-Guidelines sentence
is procedurally unreasonable because the district court failed to adequately
explain the sentence.
       Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60550

still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, 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); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      For the procedural challenge, because Nelson objected only to the
reasonableness of his sentence and not to the adequacy of the court’s explanation
for it, review is only for plain error. E.g., United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009). To show reversible plain error, Nelson must
show, inter alia, a forfeited error that is clear or obvious. Puckett v. United States,
556 U.S. 129, 135 (2009).
      After considering the advisory Guidelines sentencing range, the statutory
penalties, and the 18 U.S.C. § 3553(a) sentencing factors, the court concluded an
above-Guidelines sentence “would better achieve the statutory purposes of
sentencing”. The court considered the nature and circumstances of Nelson’s
offense, his history and characteristics, and the need for his sentence to reflect
the offense’s seriousness, promote respect for the law, provide just punishment,
afford adequate deterrence, and protect the public from similar crimes. The
court described Nelson as “a danger to society” and found it noteworthy that the
instant conviction was his tenth felony conviction, and his fourth conviction for
offenses involving stolen or fraudulent credit cards. Nelson has not shown clear
or obvious error. E.g., United States v. Key, 599 F.3d 469, 474-75 (5th Cir. 2010)
(no procedural error for above-Guidelines sentence where § 3553 factors
extensively discussed).
      Nelson also maintains his sentence was substantively unreasonable
because the stated reasons for the sentence do not support it. As noted, he
preserved this objection. The substantive reasonableness is reviewed under a
deferential abuse of discretion standard, taking into account the totality of the
circumstances. Id. at 475.

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                                  No. 12-60550

      The court sufficiently articulated its reasons for imposing the
above-Guidelines sentence, e.g., id. at 474-75, and it was not precluded from
considering factors already incorporated into Nelson’s Guidelines calculation, see
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The court properly
relied on the § 3553(a) factors in imposing an upward variance and determining
the extent of that variance. E.g., id. at 349.
      AFFIRMED.




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