US v. Broderick Nelson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:04-cr-00082-FDW-DSC-1 Copies to all parties and the district court/agency. [998624676]. [10-5098]

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Document: 31

Date Filed: 07/05/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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cases

where,

as

Date Filed: 07/05/2011

here,

a

defendant

Page: 3 of 5

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

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undischarged

Date Filed: 07/05/2011

term

of

Page: 4 of 5

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

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materials

before

Date Filed: 07/05/2011

the

court

and

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argument

would

not

aid

the

decisional process.

AFFIRMED

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