United States v. Larson , 422 F. App'x 267 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4964
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN DANIEL LARSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cr-00249-GBL-1)
Submitted: March 17, 2011 Decided: April 8, 2011
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Brooke Sealy Rupert,
Research & Writing Attorney, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Jacquelyn
Rivers, Special Assistant, James P. Gillis, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan Daniel Larson appeals the judgment and amended
judgment revoking supervised release. He contends that (1) the
twenty-four month sentence was procedurally unreasonable;
(2) the district court failed to ascertain whether he wanted to
allocute prior to imposition of sentence; (3) the district court
erred by imposing as a condition of supervised release that he
remain medication compliant; and (4) the district court was not
authorized to enter the amended judgment. We affirm the court’s
judgment in all respects except for the length of supervised
release, vacate that portion of the judgment stating the
duration of supervised release, vacate the court’s amended
judgment and remand the case to the district court for the
limited purpose of entry of final judgment reflecting the
correct duration of supervised release.
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not “plainly unreasonable.” United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). In
determining whether a revocation sentence is “plainly
unreasonable,” the court first assesses the sentence for
unreasonableness, “follow[ing] generally the procedural and
substantive considerations that [it] employ[s] in [its] review
of original sentences.” Id. at 438. A revocation sentence is
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procedurally reasonable if the district court considered the
Guidelines’ Chapter 7 advisory policy statements and the
18 U.S.C. § 3553(a) factors that it is permitted to consider in
a supervised release revocation case. Id. at 440. 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. Id.Only if a sentence is found procedurally or substantively
unreasonable will this court “then decide whether the sentence
is plainly unreasonable.” Id. at 439. A sentence is “plainly”
unreasonable if it is clearly or obviously unreasonable. Id.Because it is clear that the district court intended
to sentence Larson to the maximum allowed by law, any procedural
error regarding the advisory Guidelines range of imprisonment
was harmless.
Larson’s claim that the district court failed to
ascertain whether he waived his right to allocute is reviewed
for plain error. Plain error review requires: (1) that there
be an error, (2) that is plain, and (3) that affected the
Defendant’s substantial rights. United States v. Lewis, 10 F.3d
1086, 1092 (4th Cir. 1993). Larson bears the burden of showing
his substantial rights were violated. Id. Even if there is
plain error, this court will correct the error only if it
seriously affects the fairness, integrity or public reputation
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of the proceedings. United States v. Olano, 507 U.S. 725(1993). Given the clear intent of the district court to
sentence Larson to the statutory maximum, we will not notice the
error.
We further conclude that the district court did not
err when it continued as a condition of supervised release that
Larson remain medication compliant without providing a rationale
for the condition. Given that the original sentencing court
supported this condition with factfinding and the condition was
affirmed on appeal, it was not necessary for the court in this
instance to engage in further factfinding prior to continuing as
a condition of supervised release that Larson remain medication
compliant.
We conclude that the district court erred by entering
an amended judgment based on Larson’s Fed. R. Crim. P. 35(a)
motion more than fourteen days after sentencing. Although the
amended judgment corrected the term of supervised release to one
year, the court was without jurisdiction to do so. See United
States v. Shank, 395 F.3d 466, 469 (4th Cir. 2005) (sentencing
court lacks jurisdiction to correct a sentence outside the
period specified in Rule 35). For that reason, we vacate the
amended judgment.
We affirm the judgment in all respects except for the
length of supervised release. We vacate that portion of the
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judgment stating the length of supervised release, and remand
the case to the district court for the limited purpose of entry
of final judgment reflecting that the supervised release be one
year. We also vacate the amended judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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