United States v. John Nelon, Jr. ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN THOMAS NELON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:10-cr-00041-MFU-1)
Submitted: September 19, 2018 Decided: September 21, 2018
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederick T. Heblich, Jr., Interim Federal Public Defender, Charlottesville, Virginia,
Christine Madeleine Lee, Assistant Federal Public Defender, OFFICE OF THE PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States
Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Thomas Nelon, Jr., appeals the eight-month sentence imposed upon the
revocation of his supervised release. Nelon contends that the district court imposed a
plainly unreasonable sentence, primarily because the sentence was greater than necessary
to satisfy the statutory purposes of sentencing. 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 is within the statutory maximum and is not “plainly
unreasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). “When
reviewing whether a revocation sentence is plainly unreasonable, we must first determine
whether it is unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). In making this determination, “we strike a more deferential appellate posture
than we do when reviewing original sentences.” Padgett, 788 F.3d at 373 (internal
quotation marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2012)]
factors.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnotes omitted);
see 18 U.S.C. § 3583(e) (2012) (listing statutory factors applicable to revocation context).
“And a revocation sentence is substantively reasonable if the court sufficiently states a
proper basis for its conclusion that the defendant should receive the sentence imposed.”
Slappy, 872 F.3d at 207 (alterations and internal quotation marks omitted). We presume
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that a sentence within the applicable Guidelines policy statement range is substantively
reasonable. United States v. Gibbs, 738 F.3d 199, 204 (4th Cir. 2018).
Here, the district court correctly calculated Nelon’s policy statement range and
sentenced him within that range and the applicable statutory maximum. The court
considered the parties’ arguments and Nelon’s lengthy allocution and provided a
reasoned explanation for the sentence it imposed, grounded in the applicable § 3553(a)
factors.
Nelon argues that his eight-month term of imprisonment was plainly unreasonable,
as his violations were not willful, and a term of intensive supervision in a halfway house
would have been sufficient to satisfy the applicable § 3553(a) factors. Nelon asserts that
his violations indisputably resulted from his drug addiction and were otherwise explained
by his difficulty in obtaining transportation. We conclude, however, that Nelon fails to
rebut the presumption of substantive reasonableness accorded his sentence.
Nelon’s addiction and transportation difficulties no doubt contributed to his
postrelease conduct, but the district court permissibly concluded that these circumstances
did not fully mitigate his responsibility for his violations. Notably, the probation officer
testified that he could have assisted Nelon in obtaining transportation and job placement
had Nelon kept the probation officer apprised of his whereabouts.
Nelon’s argument also overlooks the more flagrant conduct underlying his
violations. The court acknowledged Nelon’s struggle with drug abuse and transportation
difficulties but emphasized Nelon’s need for deterrence in light of his failure to
meaningfully comply with his supervision requirements and his unauthorized
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disappearance. See 18 U.S.C. §§ 3553(a)(1), (2)(B), 3583(e). The court also
appropriately focused on Nelon’s breach of its trust in failing to take advantage of
treatment opportunities offered as an alternative to revocation and, instead, absconding
from supervision. See Webb, 738 F.3d at 641 (recognizing that revocation sentence
“should sanction primarily the defendant’s breach of trust” (internal quotation marks
omitted)). Considering the totality of the circumstances, we conclude that the district
court acted within its discretion in determining that a sentence of imprisonment at the
middle of the policy statement range was appropriate.
Accordingly, we affirm the district court’s judgment. 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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