     Case: 18-10577       Document: 00514869431         Page: 1     Date Filed: 03/12/2019




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

                                     No. 18-10577                                FILED
                                   Summary Calendar                         March 12, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NICHOLAS BRADLEY GILBERT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-201-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Nicholas Bradley Gilbert, who pleaded guilty to possessing a firearm
after a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
challenges the substantive reasonableness of his sentence. In imposing the
sentence, the district court varied upward and sentenced Gilbert, inter alia, to
78 months’ imprisonment.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-10577

      The firearm was found after Gilbert was arrested, following, inter alia, a
high-speed pursuit and resisting arrest. According to Gilbert, the court erred
in balancing the 18 U.S.C. § 3353(a) sentencing factors when it stated it
imposed the same term of imprisonment regardless of whether Gilbert tried,
with a firearm, to harm or threaten the arresting officer.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009).
      In that respect, for issues preserved in district court, 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).
The Government, however, contends plain-error review applies because
Gilbert did not object to his sentence based on the specific contentions he
presents now. Our court need not decide whether such review applies because
Gilbert’s contentions fail under the abuse-of-discretion standard applicable to
preserved substantive-reasonableness challenges of non-Guidelines sentences.
United States v. Nguyen, 854 F.3d 276, 283 & n.5 (5th Cir. 2017).
      The district court considered the § 3553(a) factors, including the advisory
Guidelines sentencing range, and provided extensive reasons why an upward
variance to 78 months’ imprisonment was appropriate. In particular, the court
stated that Gilbert’s criminal history and possession of a loaded revolver while
resisting apprehension by the arresting officer were aggravating factors.




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                                No. 18-10577

      The court sustained Gilbert’s objection that the latter circumstance was
insufficient to support an increased Guidelines sentencing range by applying
the enhancement under Guideline § 2K2.1(b)(6)(B) (enhancement “[i]f . . .
defendant . . . used or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed
in connection with another felony offense”). On the other hand, the court was
still permitted to consider the circumstance under § 3553(a) in concluding an
upward variance was appropriate. United States v. Herrera-Garduno, 519 F.3d
526, 530–31 (5th Cir. 2008); see United States v. Williams, 517 F.3d 801, 809–
11 (5th Cir. 2008).     Gilbert’s criminal history also was a permissible
consideration under § 3553(a). Herrera-Garduno, 519 F.3d at 531.
      AFFIRMED.




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