US v. Broderick Nelson, Jr., No. 10-5098 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5098 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRODERICK DALE NELSON, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:04-cr-00082-FDW-DSC-1) Submitted: June 30, 2011 Decided: July 5, 2011 Before WILKINSON, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR., Monroe, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Broderick Dale Nelson, Jr., appeals the district s court s imposition of a twenty-four month consecutive sentence following revocation of his supervised release. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) asserting that, in his opinion, there are no meritorious district issues court supervised for appeal, abused release, its and but questioning discretion whether it in abused whether revoking its the Nelson s discretion in ordering the sentence to run consecutive to the sentence Nelson had already received for the underlying conduct. Counsel concludes, however, that the district court did not abuse its discretion by revoking Nelson s term of supervised release as it was required to do so pursuant to 18 U.S.C. § 3583(g)(2) because Nelson possessed a firearm. district court consecutive did Counsel also concludes that the not abuse its discretion twenty-four month sentence in because imposing it the thoroughly considered the appropriate 18 U.S.C. § 3553(a) (2006) factors in deciding to do so. Nelson was informed of his right to file a pro se supplemental brief, but has not done so. declined to file a responsive brief. The Government We affirm. We review the district court's decision to revoke a defendant's supervised release for an abuse of discretion. United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). 2 In cases where, as here, a defendant possessed a firearm while serving a term of supervised release, revocation is mandatory. 18 U.S.C. § 3583(g)(2). Our review of the record leads us to conclude that the district court properly revoked Nelson s term of supervised release, as he admitted to the violation charging him with possessing a firearm. We next review Nelson s sentence. We will affirm a sentence imposed after revocation of supervised release if it is within the prescribed unreasonable. statutory range and not plainly United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a sentence is plainly unreasonable, must imposed is we first unreasonable. determination, this consider Id. Court at whether 438. follows the In sentence this procedural the making and substantive considerations that [it] employ[s] in [its] review of original sentences. more deferential Id. at 438. posture In this inquiry, we take a concerning issues of fact and the exercise of discretion than reasonableness review for Guidelines United States v. Moulden, 478 F.3d 652, 656 (4th sentences. Cir. 2007). Only if we substantively unreasonable, plainly so. find must the we sentence decide procedurally or whether is it Id. at 657. Under 18 U.S.C. § 3584(a), if a term of imprisonment is imposed on a defendant who 3 is already subject to an undischarged term of imprisonment, concurrently or consecutively. the terms may run United States v. Johnson, 138 F.3d 115, 118-19 (4th Cir. 1998) ( [W]e hold that the district court had the authority to impose consecutive sentences upon Johnson when determining it revoked whether the his terms supervised will run release. ). In concurrently or consecutively, the district court must consider the 18 U.S.C. § 3553(a) factors. Our review of the record leads us to conclude that the district court did not abuse its discretion in imposing the chosen sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. Accordingly, we 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 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5
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