United States v. Nunley

United States Court of Appeals
for the Fifth Circuit

No. 20-10087
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Zavion Nunley,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-197-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Zavion Nunley appeals his 96-month sentence of imprisonment for
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) and 18 U.S.C. § 924(a)(2). He contends that his above-
guidelines sentence was substantively unreasonable because the district court

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 8, 2020

Lyle W. Cayce
Clerk
Case: 20-10087 Document: 00515666355 Page: 1 Date Filed: 12/08/2020

No. 20-10087
2
failed to adequately consider his traumatic childhood and the disparities the
sentence would create between Nunley and similarly situated defendants.
Further, Nunley argues that the district court erred by ordering that two of
his anticipated state sentences would run consecutively to his federal
sentence because the conduct involved in those pending state charges was
relevant conduct to the federal offense.
Here, the district court relied on appropriate factors in determining
that an upward variance was warranted, as its reasons addressed Nunley’s
history and characteristics, and the needs to deter Nunley from future
criminal conduct and to protect the public. See 18 U.S.C. § 3553(a); United
States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Nunley
contends that the district court failed to consider his upbringing, but the
district court clearly did and determined that Nunley’s extensive criminal
history warranted an upward variance. Further, Nunley does not show that
he received a higher sentence than other criminal defendants nationwide who
were similarly situated in terms of offense conduct, acceptance of
responsibility, criminal history, or guidelines calculations. See United States
v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010); United States
v. Candia, 454 F.3d 468, 476 (5th Cir. 2006). Nothing suggests that the
district court failed to consider a factor that should have received significant
weight, gave significant weight to an improper factor, or made a clear error
of judgment in balancing the sentencing factors; therefore, we defer to the
district court’s determination that the § 3553(a) factors, on the whole,
warrant the variance and justify the extent of the upward variance imposed.
See United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012);
United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012).
Nunley argues that his state charges for burglary of a vehicle and theft
of a firearm were relevant conduct to the instant federal offense because they
involved the pistol that was the subject of the federal offense. Thus, he claims
Case: 20-10087 Document: 00515666355 Page: 2 Date Filed: 12/08/2020

No. 20-10087
3
that the district court mistakenly failed to order these relevant conduct
offenses to run concurrently with his federal sentence, pursuant to U.S.S.G.
§ 5G1.3. Nunley did not raise this issue before the district court, and
therefore, plain error review applies. See United States v. Mondragon-
Santiago, 564 F.3d 357, 364 (5th Cir. 2009). To establish plain error, Nunley
must show a forfeited error that is clear or obvious and that affected 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 should do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
In this case, the district court adopted the presentence report, which
found that the state sentences that were ordered to run concurrently were
related to the instant federal offense. The district court ordered the other
anticipated state sentences for unrelated conduct to run consecutively.
Additionally, the concurrent anticipated state sentences were for offenses
related to possessing or firing a firearm, and the consecutive anticipated state
sentences were for offenses comprising all other criminal conduct, including
the contested burglary and theft offenses. The district court did not make
any findings with respect to relevant conduct, and therefore Nunley’s claim
of a mistaken relevant conduct determination does not constitute a clear or
obvious error on plain error review. Further, the district court had the
discretion to order the sentences for the related state offenses to run
concurrently and the other anticipated state sentences to run consecutively
to the federal sentence, and the record shows that the district court did not
exceed its discretion. See Setser v. United States, 566 U.S. 231, 236-37 (2012).
Therefore, Nunley has not demonstrated an error, plain or otherwise. See
Puckett, 556 U.S. at 135.
Given the foregoing, the judgment of the district court is
AFFIRMED.
Case: 20-10087 Document: 00515666355 Page: 3 Date Filed: 12/08/2020