US v. Damon Nicholson
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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statements
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in
the
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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
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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,
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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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