UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 imposing a
sentence upon revocation of supervised release.” United States
v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a
revocation sentence that is within the 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 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks
omitted). If we find the sentence unreasonable, we must then
determine whether it is “plainly” so. Id. at 657.
A supervised release revocation sentence is procedurally
reasonable if the district court considered the Chapter 7 policy
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statements in the 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.” Id.
On appeal, Nicholson asserts that the 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 presented—and the court considered—the bases for
mitigation that Nicholson contends were not addressed. The
court recognized, and expressed concern for, Nicholson’s
continued poor decision-making and refusal of mental health
services and substance abuse treatment, both of which the
probation officer had endeavored to obtain for him. These
statements demonstrate that the district court 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 statements prior to sentencing Nicholson reflect its
view that a sentence within the calculated 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 defendant’s] particular situation.”
Moulden, 478 F.3d at 658. The court’s comments here reveal that
its focus was on appropriate sentencing considerations,
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including the nature and circumstances of the violations, and
Nicholson’s history and characteristics. See 18 U.S.C.
§§ 3553(a)(1), 3583(e). The court also noted its consideration
of the relevant policy statements applicable in revocation
proceedings. See 18 U.S.C. § 3553(a)(4)(B). Because the
district court tethered its decision to impose the statutory
maximum sentence to appropriate sentencing factors and the
particular circumstances of this case, we conclude that the
court’s explanation for the selected sentence is sufficient.
Accordingly, we affirm the revocation judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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