UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 issues for appeal, but questioning whether the
district court abused its discretion in revoking Nelson’s
supervised release, and whether it abused its 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. Counsel also concludes that the
district court did not abuse its discretion in imposing the
consecutive twenty-four month sentence because it 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. The Government
declined to file a responsive brief. 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). In
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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 statutory range and not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 439-40
(4th Cir. 2006). In determining whether a sentence is plainly
unreasonable, we must first consider whether the sentence
imposed is unreasonable. Id. at 438. In making this
determination, this Court follows “the procedural and
substantive considerations that [it] employ[s] in [its] review
of original sentences.” Id. at 438. In this inquiry, we take a
more deferential posture concerning issues of fact and the
exercise of discretion than reasonableness review for Guidelines
sentences. United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007). Only if we find the sentence procedurally or
substantively unreasonable, must we decide whether it is
“plainly” so. Id. at 657.
Under 18 U.S.C. § 3584(a), “if a term of imprisonment
is imposed on a defendant who is already subject to an
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undischarged term of imprisonment, the terms may run
concurrently or consecutively.” 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 it revoked his supervised release.”). In
determining whether the terms will run 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
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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