United States of America v. Malcolm King Nelson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MALCOLM KING NELSON,
Defendant-Appellant.
No. 17-50429
D.C. No. 2:17-cr-00102-SVW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Malcolm King Nelson appeals from the district court’s judgment revoking
his supervised release and challenges the 11-month sentence imposed upon
revocation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Nelson contends that the district court erred by basing the sentence primarily
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-50429
on the severity of his supervised release violations, including his two arrests for
driving under the influence of alcohol. Because Nelson did not raise this objection
in the district court, we review for plain error. See United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Even if the district court plainly
erred by primarily focusing on the seriousness of Nelson’s new criminal conduct,
see 18 U.S.C. § 3583(e); United States v. Simtob, 485 F.3d 1058, 1063-64 (9th Cir.
2007), Nelson has not demonstrated a reasonable probability that he would have
received a different sentence absent the error. See United States v. Dallman, 533
F.3d 755, 762 (9th Cir. 2008). Given the court’s expressed concern about Nelson’s
eight violations of the terms of his supervised release and the need to protect the
public from the danger posed by Nelson’s conduct, a permissible sentencing
consideration, we conclude that the district court would have imposed the same
sentence absent any consideration of the 18 U.S.C. § 3553(a)(2)(A) sentencing
factors.
AFFIRMED.

-- 2 of 2 --