United States v. James Nelson , 607 F. App'x 236 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEWIS NELSON,
Defendant - Appellant.
No. 14-4457
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEWIS NELSON,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:02-cr-00054-MR-1; 1:08-cr-00091-MR-DLH-1)
Submitted: February 25, 2015 Decided: April 8, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Richard Lee Edwards, Amy Elizabeth Ray, Assistant United States
Attorneys, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, James Lewis Nelson appeals the
district court’s judgment revoking his term of supervised
release in two criminal cases and sentencing him to 11 months’
imprisonment. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but suggesting that a lower
sentence would have been appropriate given that Nelson’s
violative conduct — particularly, his ongoing marijuana use —
was in response to his otherwise untreated anxiety and
depression. We view this argument, which counsel concedes is
raised for the first time on appeal, as a challenge to the
substantive reasonableness of Nelson’s sentence. Although
advised of his right to file a pro se supplemental brief, Nelson
has not done so. The Government has declined to file a response
brief. Following our careful review of the record, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United States
v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a
revocation sentence if it falls within the prescribed statutory
range and is not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 437–39 (4th Cir. 2006). In making this
determination, we first consider whether the sentence imposed is
procedurally or substantively unreasonable, applying the same
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general considerations employed in review of original criminal
sentences. Id. at 438. “This initial inquiry takes a more
deferential appellate posture concerning issues of fact and the
exercise of discretion than reasonableness review for
[G]uidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks omitted).
Only if we find the sentence unreasonable will we consider
whether it is “plainly” so. Id. at 657 (internal quotation
marks omitted).
A supervised release revocation sentence is procedurally
reasonable if the district court considered the policy
statements contained in Chapter Seven of the Sentencing
Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable
to revocation sentences. 18 U.S.C. § 3583(e) (2012); Crudup,
461 F.3d at 439. Although a district court must provide a
statement of reasons for the sentence it imposes, it “need not
be as detailed or specific when imposing a revocation sentence
as it must be when imposing a post-conviction sentence[.]”
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
revocation sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440.
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We review the lone issue raised in counsel’s Anders brief
for plain error, as this argument was not pressed in the
district court. See United States v. Lemon, __ F.3d __, 2015 WL
294329, at *2 (4th Cir. Jan. 23, 2015) (reviewing for plain
error newly raised argument to undermine supervised release
revocation sentence). Nelson’s challenge to the substantive
reasonableness of his sentence fails on this record. After
properly considering the advisory policy statement range of 6 to
12 months’ imprisonment and responding to the arguments made by
counsel and Nelson, the court sentenced Nelson near the top of
the policy statement range. The court explained that the 11-
month sentence was appropriate given that the court’s prior
extensions of leniency were met by Nelson’s repeated abuse of
the court’s trust. See U.S. Sentencing Guidelines Manual ch. 7,
pt. A(3)(b) (2008) (providing revocation sentence “should
sanction primarily the defendant’s breach of trust”). We
discern no substantive unreasonableness, plain or otherwise, in
the district court’s reliance on this factor to sentence this
defendant. That Nelson used marijuana in an effort to self-
medicate does not countenance a different result, given that
Nelson did not avail himself of the probation officer’s efforts
to secure him mental health treatment.
In accordance with Anders, we have reviewed the records in
these cases and have found no meritorious issues for appeal. We
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therefore affirm the district court’s judgment. This court
requires that counsel inform Nelson, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Nelson requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Nelson. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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