US v. Nathan Larson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00249-GBL-1 Copies to all parties and the district court/agency. [998564007].. [10-4964]

Case: 10-4964

Document: 26

Date Filed: 04/08/2011

Page: 1

UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

Case: 10-4964

Document: 26

Date Filed: 04/08/2011

Page: 2

PER CURIAM:
Nathan Daniel Larson appeals the judgment and amended
judgment revoking supervised release.
twenty-four

month

sentence

was

He contends that (1) the

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

duration

of

supervised

judgment

and

remand

limited

that

purpose

of

portion

of

release,

the

case

entry

of

to

the

judgment

vacate
the

final

the

stating

court’s

district
judgment

court

the

amended
for

the

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).
determining
unreasonable,”

whether

a

the

court

unreasonableness,

revocation
first

“follow[ing]

sentence

assesses

generally

the
the

is

In

“plainly

sentence

for

procedural

and

substantive considerations that [it] employ[s] in [its] review
of original sentences.”

Id. at 438.
2

A revocation sentence is

Case: 10-4964

Document: 26

Date Filed: 04/08/2011

procedurally

reasonable

if

Guidelines’

Chapter

advisory

7

the

district
policy

court

Page: 3

considered

statements

and

the
the

18 U.S.C. § 3553(a) factors that it is permitted to consider in
a supervised release revocation case.
sentence
stated

is
a

substantively

proper

basis

Id. at 440.

reasonable

for

concluding

if

the
the

A revocation

district
defendant

court
should

receive the sentence imposed, up to the statutory maximum.
Only

if

a

sentence

is

found

procedurally

or

Id.

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.
be

an

error,

(2)

Plain error review requires:
that

is

plain,

(3)

Id.

plain

the

this

court

affected

the

Larson bears the burden of showing

his substantial rights were violated.
error,

that

United States v. Lewis, 10 F.3d

Defendant’s substantial rights.
1086, 1092 (4th Cir. 1993).

and

(1) that there

will

correct

Even if there is
error

only

if

it

seriously affects the fairness, integrity or public reputation
3

Case: 10-4964

of

the

Document: 26

proceedings.

(1993).

Given

the

United
clear

Date Filed: 04/08/2011

States

intent

of

v.

Olano,

the

Page: 4

507

district

U.S.

725

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

period specified in Rule 35).

a

sentence

outside

the

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
4

Case: 10-4964

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Date Filed: 04/08/2011

Page: 5

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.
oral

We also vacate the amended judgment.
argument

adequately

because

presented

in

the
the

facts

and

materials

We dispense with

legal

contentions

before

the

court

are
and

argument would not aid the decisional process.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

5