United States v. Nelson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4650
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LORENZO NELSON,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00168-JAB-1)
Submitted: January 22, 2009 Decided: February 25, 2009
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis Carr Allen, III, Federal Public Defender, Greensboro,
North Carolina, for Appellant. Michael A. DeFranco, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Nelson appeals his sentence to 160 months in
prison after pleading guilty to bank robbery in violation of
18 U.S.C. § 2113(a) (2006). On appeal, Nelson contends that the
district court abused its discretion when it sentenced him as a
career offender pursuant to the advisory guidelines, because he
is an atypical career offender. We affirm.
We review Nelson’s sentence for abuse of discretion.
See Gall v. United States, 128 S. Ct. 586, 590 (2007). The
first step in this review requires us to ensure that the
district court committed no significant procedural error, such
as improperly calculating the guideline range. United
States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,
128 S. Ct. 2525 (2008). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 128 S. Ct. at 597. When
reviewing a sentence on appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Nelson does not contend that the district court erred
in calculating his advisory guideline range or that it failed to
consider the factors under 18 U.S.C. § 3553(a) (2006) when
imposing his sentence. Rather, he argues that because his two
qualifying prior convictions for felony robbery with a dangerous
2
weapon and felony robbery are decades old, and because dire
circumstances motivated the instant bank robbery, he is an
atypical career offender and the district court did not give
adequate weight to all of the § 3553(a) factors when sentencing
him in the lower one-third of his guideline range.
We have reviewed the record and conclude that the
district court did not abuse its discretion. The probation
officer recommended a sentence at the high end of Nelson’s 151
to 188-month guideline range because he had a long history of
felony crimes of violence. Nelson requested a sentence below
his guideline range, contending his recent history since being
released from prison was more important in judging his personal
history and circumstances, and the instant offense was motivated
by dire personal circumstances. The Government requested that
the district court follow the recommendation of the probation
officer, because Nelson’s prior robbery convictions were violent
offenses, his recent criminal history included additional acts
of violence, and the instant offense was very serious.
With respect to the nature and circumstances of the
instant offense, the district court acknowledged that Nelson
appeared to have committed the offense out of desperation due to
the poor economic circumstances he was facing, but also found
that bank robbery is a serious offense involving the safety of
members of the public. As for Nelson’s personal history and
3
circumstances, the court noted the extended period of time
between the conduct that led him to be classified as a career
offender and the instant offense, and that he did not have any
convictions since 2000, but the court also noted he had violent
conduct involving domestic disputes with his wife in 2000.
Taking into account the § 3553(a) factors presented by Nelson,
as well as the sentencing purposes of protecting the public and
providing for punishment and deterrence, the court reasonably
determined a sentence of 160 months 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 the
court and argument would not aid the decisional process.
AFFIRMED
4