     Case: 16-41532      Document: 00514110996         Page: 1    Date Filed: 08/10/2017




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

                                    No. 16-41532                              FILED
                                  Summary Calendar                      August 10, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NATHAN OLIVA, also known as Nathan Snitzel, also known as Nathan
Lokahi Pai,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:15-CR-146-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Nathan Oliva appeals his 365-month sentence imposed following his
guilty plea to sex trafficking of a child. He argues that his sentence, which
exceeds the advisory guidelines range of 235 to 293 months of imprisonment,
is substantively unreasonable because a guidelines range sentence would have




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41532      Document: 00514110996      Page: 2    Date Filed: 08/10/2017


                                   No. 16-41532

been sufficient to meet the goals of the sentencing factors in 18 U.S.C.
§ 3553(a).
      Oliva did not object to the substantive reasonableness of the sentence in
the district court; therefore, review is for plain error. To show plain error,
Oliva must show a forfeited error that is clear or obvious and that affects 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
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      In reviewing a non-guidelines sentence for substantive reasonableness,
this court considers “the totality of the circumstances, including the extent of
any variance from the Guidelines range.” United States v. Brantley, 537 F.3d
347, 349 (5th Cir. 2008) (internal quotation marks and citation omitted). A
non-guidelines sentence unreasonably fails to reflect the statutory sentencing
factors set forth in § 3553(a) where it “(1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Chandler, 732 F.3d 434,
437 (5th Cir. 2013) (internal quotation marks and citation omitted).             The
district court must make an individualized assessment of the particular facts
in the case. Gall v. United States, 552 U.S. 38, 50-51 (2007).
      The district court adopted the findings in the presentence report, read
Oliva’s sentencing memorandum requesting a downward variance, heard the
mitigating arguments made by Oliva’s counsel, and listened to Oliva’s
allocution. It stated that it had considered the § 3553(a) factors and had
determined that an upward variance was warranted in light of Oliva’s personal
history and characteristics, including his extensive criminal history, the need



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                                  No. 16-41532

for adequate punishment and deterrence and to protect the public from harm.
The district court’s reasons for imposing an upward variance were fact-specific
and consistent with the § 3553(a) factors. See Gall, 552 U.S. at 50-51. The
record does not reflect that the district court failed to take into account a factor
that warranted significant weight or that it gave undue weight to an improper
factor. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      Insofar as Oliva argues that the extent of the variance is unreasonable,
this court has upheld greater upward variances. See, e.g., Brantley, 537 F.3d
at 349-50; United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
      Oliva has not demonstrated that the district court plainly erred in
assessing the upward variance or that the sentence is substantively
unreasonable. See Puckett, 556 U.S. at 135; Smith, 440 F.3d at 708. The
sentence is AFFIRMED.




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