United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
revoked Mr. Nation's supervised release for the third
time pursuant to his admission and sentenced him to 14 months
in prison and 5 years of supervised release in a case where
the underlying felony was failure to register as a sex
offender, as prohibited by 18 U.S.C. § 2250. Mr. Nation
has now filed a § 2255 motion.
previous revocation hearing, Mr. Nation admitted to law
violations. They were convictions in Iowa for operating a
motor vehicle while intoxicated and simple assault of his
girlfriend. He did not appeal the revocation or sentence I
initial review,  I now dismiss with prejudice and deny the
§ 2255 motion. From the records, it plainly appears that
Mr. Nation is not entitled to relief. I also refuse to issue
a certificate of appealability.
Nation first claims that the period of supervised release I
imposed (5 years) following revocation was not authorized. He
3583(k) of Title 18 of the United States Code
provides a period of supervised release of 5 years (and up to
life) in cases such as this involving failure to register.
Thus, § 3583(k) trumps 18 U.S.C. § 3559 and 18
U.S.C. § 3583(b). See, e.g., United
States v. Cheeks, 647 Fed.Appx. 310 (5th Cir. 2016)
(where government petitioned to revoke supervised release of
defendant previously convicted of failure to register as sex
offender, United States District Court for the Southern
District of Mississippi ordered revocation and imposed
11-month prison term followed by life term of supervised
release; defendant appealed, challenging term of supervised
release, but Fifth Circuit affirmed). Moreover, the period of
supervised release I imposed is consistent with U.S.S.G.
§ 5D1.2(c) (“The term of supervised release
imposed shall be not less than any statutorily required term
of supervised release.”).
remainder of Mr. Nation's claims are essentially
meritless rambling. As the lengthy hearing record will
reveal, I carefully considered the relative merits of
imposing the sentence I decided upon and clearly expressed my
reasons for the sentence at the time I imposed it. (Filing
No. 124.) Despite enormous efforts by the
supervising probation officer (like finding Mr. Nation free
or nearly free housing at Dismas Charities where he resided
at the time of his third violation), Mr. Nation's
repeated violations of his conditions of supervised release
warranted the high-end Guideline prison sentence of 14 months
and the 5 years of supervised release. While it may seem to
Mr. Nation that he is caught in a revolving door from which
there is no escape, that figurative door continues to revolve
because of the actions of Mr. Nation. The way to stop the
revolving door is for Mr. Nation to stop drinking while
driving and assaulting his girlfriend and otherwise abiding
by the conditions of supervised release. To be utterly frank,
but not intending to be unkind, we are as sick of Mr. Nation
as he is sick of us.
a defendant cannot appeal an adverse ruling on a § 2255
motion unless he or she is granted a certificate of
appealability. 28 U.S.C. § 2253(c)(1) & (2); Fed. R.
App. P. 22(b)(1). The standards for certificates (1) where
the district court reaches the merits or (2) where the
district court rules on procedural grounds are set forth in
Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). I
have applied the appropriate standard and determined that the
Defendant is not entitled to a certificate of appealability.
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Filing No.
133) is denied and dismissed with prejudice.
Motion to Appoint Counsel (Filing No. 134) is
separate judgment will be entered.
certificate of appealability has ...