     Case: 13-10129      Document: 00512435347         Page: 1    Date Filed: 11/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10129
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 8, 2013
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

NICOLE DEON GOOSBY,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-170-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       Nicole Goosby pleaded guilty of possession of counterfeit securities and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10129

was sentenced above the advisory guideline range to seventy-two months’
imprisonment.     She appeals her non-guideline sentence as unreasonable.
Although she refers to her sentence as an upward departure pursuant to
U.S.S.G. § 4A1.3, the record reflects that the district court imposed a non-
guideline upward variance based on the 18 U.S.C. § 3553(a) sentencing factors.
      Pursuant to Gall v. United States, 552 U.S. 38 (2007), this court engages
in a bifurcated review. United States v. Delgado-Martinez, 564 F.3d 750, 752
(5th Cir. 2009). First, we consider whether the court committed a “significant
procedural error.” Id. If not, we may proceed to the second step and review,
for abuse of discretion, the substantive reasonableness of the sentence. Id.
at 751−53.
      Goosby raises a claim of procedural error by arguing that the district
court improperly considered her 1997 arrest for forgery of a financial instru-
ment. Because Goosby failed to raise that issue in the district court, review is
limited to plain error, see United States v. Jones, 484 F.3d 783, 792 (5th Cir.
2007), which is a forfeited error that is clear or obvious and that affects her
substantial rights, see Puckett v. United States, 556 U.S. 129, 135 (2009). If
she makes such a showing, this court may exercise its discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
      In addition to listing the alleged offense for which Goosby was arrested,
the presentence report (“PSR”) included factual information underlying that
arrest. Goosby did not object to the PSR, offer rebuttal evidence, or allege that
the information contained in the PSR was materially untrue. She has not
established plain error. See United States v. Harris, 702 F.3d 226, 229 (5th
Cir. 2012), cert. denied, 133 S. Ct. 1845 (2013); United States v. Solis, 299 F.3d
420, 455 (5th Cir. 2002).



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                                 No. 13-10129

      As for substantive reasonableness, Goosby asserts that her sentence is
excessive and that the district court erred in considering her 2002 and 2010
convictions because they were already accounted for in the guideline calcula-
tion. The court considered the statements presented at sentencing and the
PSR and was free to conclude, as it did, that the guideline range gave insuf-
ficient weight to some of § 3553(a)’s factors.
      Specifically, the court cited (1) Goosby’s return to criminal fraudulent
activity following the imposition of lenient sentences for other convictions,
(2) her movement from mere possession of identification documents to the
fraudulent use of such documents, and (3) her direction of others in the com-
mission of the fraudulent scheme. The record demonstrates that the decision
to impose a non-guideline sentence was based on permissible factors that
advanced the objectives in § 3553(a) and were justified by the facts. See United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008); United States v.
Smith, 440 F.3d 704, 708-09 (5th Cir. 2006). Additionally, the variance does
not represent an abuse of the district court’s vast sentencing discretion when
considered in light of the totality of the circumstances. See Gall, 552 U.S. at
51; United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
      Accordingly, the judgment of sentenced is AFFIRMED.




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