United States v. Nenigar , 354 F. App'x 56 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2009
No. 09-30007
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICHARD NENIGAR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:08-CR-149-1
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Richard Nenigar appeals the 48-month, nonguidelines sentence imposed
following his guilty-plea conviction of failure to register as a sex offender. In
district court, his counsel objected to that sentence as excessive.
Nenigar contends: his sentence is unreasonable and excessive; it is not
supported by the factors in 18 U.S.C. § 3553(a); and it results in a sentencing
disparity with other similarly-situated defendants. Nenigar also asserts that the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-30007
district court failed to comply with § 3553(c)(2) because it did not state with
specificity its reasons for imposing the sentence in its written order.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentencing is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007). In that respect, 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Pursuant to Gall, we engage in a bifurcated review process of the sentence
imposed. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
First, as discussed above, we consider whether the district court committed “a
significant procedural error”, such as miscalculating the advisory guidelines
range. Id. at 752-53. If there is no error, or it is harmless, we proceed, as also
discussed above, to the second step and review, for an abuse of discretion, the
substantive reasonableness of the sentence imposed. Id. at 751-53.
Because Nenigar failed to raise in district court his contentions that the
sentence imposed creates a sentencing disparity with other defendants and that
the district court failed to comply with § 3553(c)(2), we review these issues only
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009), cert. denied, 2009 WL 1849974 (5 Oct. 2009) (No. 08-11099). To
establish reversible plain error, Nenigar must show (1) there was error, (2) it
was plain (clear or obvious), and (3) it affected his substantial rights. E.g.,
United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct.
962 (2009). If reversible plain error is established, we still have discretion to
correct such error and, generally, will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.2
No. 09-30007
The district court found: Nenigar had indicated a knowing intent not to
comply with the registration requirements; he had failed to comply with
registration requirements for more than two years; this failure had occurred in
different states; and, given his prior offense involving a child, there was a need
to provide adequate deterrence and to protect the public, as well as to promote
respect for the law. The district court also noted Nenigar’s need to obtain
vocational training to prevent him from becoming homeless. The district court
thus considered the § 3553(a) factors and Nenigar’s individual circumstances
and concluded that a non-guidelines sentence was warranted. There was no
abuse of discretion. See United States v. Herrera-Garduno, 519 F.3d 526, 530-32
(5th Cir. 2008); United States v. Mejia-Huerta, 480 F.3d 713, 716-19, 723 (5th
Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008).
There was no plain error with respect to the alleged sentencing disparity
in the light of the district court’s careful articulation and balancing of the
§ 3553(a) factors in determining the variance was warranted. See Gall, 128 S.
Ct. at 597. Finally, any error under § 3553(c)(2) is not plain, because the district
court’s oral statement of reasons is sufficient to allow meaningful appellate
review. See United States v. Zuniga-Peralta, 442 F.3d 345, 348-49 (5th Cir.
2006); United States v. Gore, 298 F.3d 322, 325-26 (5th Cir. 2002).
AFFIRMED.
3