                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS June 26, 2013
                                                              Elisabeth A. Shumaker
                                   TENTH CIRCUIT                  Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 12-6317
 v.                                           (D.C. No. 5:12-CR-00100-R-1)
                                                      (W.D. Okla.)
 JAMES BRADLEY NELSON,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      After James Nelson pleaded guilty to sexual abuse of his minor daughter in

violation of 18 U.S.C. § 2243(a), he and the government agreed that the advisory

sentencing guidelines suggested a sentence in the range of 51 to 63 months’

imprisonment. At sentencing, however, the district court varied upward,

imposing a 180-month sentence, the statutory maximum. Now before us, Mr.

Nelson appears to dispute both procedural and substantive aspects of his sentence.


      *
         After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Because Mr. Nelson made no such objection before the district court, however,

we review his appeal only for plain error. United States v. Ruiz-Terrazas, 477

F.3d 1196, 1199 (10th Cir. 2007). In the end, we see no error at all.

      Mr. Nelson begins by suggesting that the district court’s sentence was

“unreasoned,” which we take to mean procedurally deficient. It is certainly the

case that when a sentence falls outside the advisory guidelines range, as it does in

this case, the district court must, as a matter of procedure, provide specific

reasons for imposing a sentence different from what the guidelines suggest. See

Ruiz-Terrazas, 477 F.3d at 1200; United States v. Mendoza, 543 F.3d 1186, 1191-

92 (10th Cir. 2008). That, however, the district court did here. After considering

the § 3553(a) factors, the district court explained its view that it did not think the

guidelines range adequate in this case “given what [Mr. Nelson] did to [his minor

children].” In fact, while the advisory guidelines sentence included an

enhancement for Mr. Nelson’s “pattern” of molesting his daughters, only two

separate occasions of sexual conduct were necessary to trigger the enhancement.

See U.S.S.G. § 4B1.5 cmt. 4(B)(i). In this case, meanwhile, Mr. Nelson

repeatedly molested his eldest daughter for nine years and then proceeded to

follow the same pattern with his younger daughter. Given this, we are persuaded

the district court provided a sufficiently specific reason for departing from the

guidelines’ recommendation.




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      Alternatively, Mr. Nelson suggests his sentence isn’t substantively

reasonable in light of his criminal record when viewed in whole. He also

suggests his sentence isn’t substantively reasonable because the district court

harbored a “desire to incarcerate Mr. Nelson for as long as the statute provided

and for no other reason.” Appellant’s Br. at 8. But “to win a substantive

reasonableness appeal is no easy thing” given the considerable discretion a

district court enjoys at sentencing. United States v. Rendon-Alamo, 621 F.3d

1307, 1310 n.** (10th Cir. 2010). In this case, Mr. Nelson’s criminal record

when viewed in whole was not as inconsiderable as he suggests, involving, as we

have already seen, repeated sexual misconduct against two different minors over

many years, as well as another preexisting conviction for possession of child

pornography. Neither do we see an indication that the district court was driven

by a mindless desire to incarcerate Mr. Nelson for as long as possible “and for no

other reason.” To the contrary, the district court expressed a concern with

fashioning a sentence that both (1) took full account of the nature and continuity

of Mr. Nelson’s conduct and (2) addressed what the district court thought was a

genuine “threat to society,” given that court’s (uncontested) judgment that Mr.

Nelson’s conduct demonstrated a serious chance of recidivism.




                                        -3-
      Mr. Nelson’s sentence is affirmed. The government’s motion to file its

brief under seal is granted.



                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




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