US v. Damon Nicholson


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:05-cr-00269-FL-1. Copies to all parties and the district court. [999685772]. [15-4221]

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Appeal: 15-4221 Doc: 21 Filed: 10/26/2015 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMON DEMONT NICHOLSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:05-cr-00269-FL-1) Submitted: October 16, 2015 Decided: October 26, 2015 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4221 Doc: 21 Filed: 10/26/2015 Pg: 2 of 5 PER CURIAM: Damon Demont Nicholson appeals the 24-month sentence imposed following the revocation of his supervised release term. On appeal, Nicholson challenges the procedural reasonableness of his sentence, which reflected an upward variance from his policy statement range of 7 to 13 months’ imprisonment. Finding no error, plain or otherwise, we affirm. “A district court has broad discretion when sentence upon revocation of supervised release.” v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). revocation sentence that is within the imposing a United States We will affirm a prescribed statutory range and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439–40 (4th Cir. 2006). We first consider whether the sentence is procedurally or substantively unreasonable, employing the same general considerations applied during review of original sentences. Id. at 438. In this initial inquiry, we “take[ ] a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for [G]uidelines sentences.” United States v. Moulden, 478 (internal F.3d omitted). 652, 656 (4th Cir. 2007) marks If we find the sentence unreasonable, we must then determine whether it is “plainly” so. A quotation supervised release revocation Id. at 657. sentence is procedurally reasonable if the district court considered the Chapter 7 policy 2 Appeal: 15-4221 Doc: 21 statements Filed: 10/26/2015 in the Pg: 3 of 5 Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable in the supervised release revocation context, see 18 U.S.C. § 3583(e) (2012); Crudup, 461 F.3d at 439, and provided sufficient explanation for the sentence imposed, see United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). The district court’s explanation “need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence.” On appeal, Nicholson asserts that the Id. district court committed reversible procedural error in failing to address his arguments in mitigation and in failing to provide an adequate explanation for the upward variant sentence it imposed. We reject both of these contentions. First, our review of the record leads us to conclude that the district court sufficiently addressed Nicholson’s arguments in mitigation. The district court engaged in an extensive colloquy with Nicholson prior to imposing sentence, during which Nicholson mitigation court presented—and that Nicholson recognized, continued services probation statements poor and the and court contends expressed decision-making substance officer had demonstrate abuse were refusal of 3 to district of for for The Nicholson’s mental both obtain bases addressed. for, treatment, the not concern and endeavored that considered—the which him. court health the These rejected Appeal: 15-4221 Doc: 21 Filed: 10/26/2015 Pg: 4 of 5 Nicholson’s contention that his mental health issues should have been afforded greater consideration, because Nicholson had exacerbated the problem by declining to avail himself of offered treatment options. Nor do we find any procedural error in the district court’s justification for the upward variance imposed in this case. The court’s its view statements that a prior sentence to within sentencing the Nicholson calculated reflect policy statement range would be insufficient given the facts and circumstances of this case, which established Nicholson’s wholesale failure to comply with the requirements of his supervision. Specifically, the court opined that Nicholson’s repeated violative conduct— which included using cocaine immediately upon his release from incarceration, repeatedly failing to report for drug testing and to comply with his mental health and substance abuse treatment plans, and absconding from supervision—warranted a substantial deviation from the policy statement range. It is well settled that the district court’s reasons for the selected sentence need not be “couched in the precise language of § 3553(a),” so long as they “can be matched to a factor appropriate for consideration under [§ 3553(a)] and [are] clearly tied to [the Moulden, 478 F.3d at 658. its focus was on defendant’s] particular situation.” The court’s comments here reveal that appropriate 4 sentencing considerations, Appeal: 15-4221 Doc: 21 Filed: 10/26/2015 Pg: 5 of 5 including the nature and circumstances of the violations, and Nicholson’s history and §§ 3553(a)(1), 3583(e). of the relevant proceedings. See 18 U.S.C. The court also noted its consideration policy See characteristics. 18 statements U.S.C. applicable in § 3553(a)(4)(B). revocation Because the district court tethered its decision to impose the statutory maximum sentence particular to appropriate circumstances of this sentencing case, we factors and the conclude that the court’s explanation for the selected sentence is sufficient. Accordingly, dispense with contentions are we oral affirm argument adequately the revocation because presented in the the judgment. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5

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