UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6704

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES R. NIBLOCK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:02-cr-00568-TSE-1; 1:04-cv-00361- HEH)

Submitted: January 11, 2021 Decided: January 19, 2021

Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and TRAXLER, Senior Circuit Judge.

Affirmed in part and vacated and remanded in part by unpublished per curiam opinion.

James R. Niblock, Appellant Pro Se. Daniel Taylor Young, Assistant United States Attorney, Kimberly M. Shartar, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

James R. Niblock appeals the district court’s orders denying his motions for a final

ruling on his

motion and to alter or amend the judgment. The district

court denied the motions because Niblock’s claims previously had been considered and

determined to lack merit, because he did not have a § 2255 motion pending, and because

his claims amounted to a second or successive § 2255 motion for which he had not obtained

authorization. We have reviewed the record and find no reversible error. Accordingly, we

affirm for the reasons stated by the district court. United States v. Niblock, No. 1:02-cr-

00568-TSE-1 (E.D. Va. Oct. 8, 2019 & Apr. 2, 2020).

Consistent with our decision in United States v. Winestock,

(4th

Cir. 2003), abrogated in part on other grounds by United States v. McRae,

(4th Cir. 2015), we construe Niblock’s notice of appeal and informal brief as an application

to file a second or successive § 2255 motion. Upon review, we conclude that Niblock’s

claims do not meet the relevant standard. See

(h). We therefore deny

authorization to file a successive § 2255 motion.

Niblock also appeals from the district court’s order denying his

(e)

motion for early termination of his supervised release. Niblock asserted that his offense of

conviction was not a violent offense, was an aberration, and occurred 18 years earlier. He

asserted that his sentence was disproportionate to other sentences imposed for the same or

worse conduct, and that his proven record of compliance weighed in favor of granting his

motion. Niblock also argued that his sentence was unconstitutional because it was

enhanced based on a factual finding by the judge, rather than the jury.

2 The district court determined that Niblock’s challenge to the validity of his sentence

was meritless and that “compliance alone does not justify early termination of supervised

release.” The district court denied Niblock’s § 3583(e) motion, explaining, “Ordinarily,

serving a single year of a multi-year term of supervised release is not to warrant a confident

conclusion that defendant is prepared to live a law-abiding life. But this does not mean

that defendant may not have his term of supervised release terminated early, as it is often

the case that serving two years of supervised release without violation is sufficient to

warrant that conclusion.” The court then ordered Niblock to “continue to comply with the

terms of his supervised release and make the requisite restitution payments.”

We “review a district court’s decision whether to terminate an individual’s term of

supervised release before the expiration of the term under

(e) under the

narrow abuse of discretion standard.” United States v. Pregent,

(4th

Cir. 1999). “A district court abuses its discretion when it acts arbitrarily or irrationally,

fails to consider judicially recognized factors constraining its exercise of discretion, relies

on erroneous factual or legal premises, or commits an error of law.” United States v.

Dillard,

(4th Cir. 2018) (internal quotation marks omitted).

Pursuant to

(e)(1), after a defendant has served one year of

supervised release, a district court may terminate the remaining term after considering

certain

(a) factors, if the court “is satisfied that such action is warranted

by the conduct of the defendant released and the interest of justice.”

(e)(1). The § 3553(a) factors that the district court must consider are: (1) the nature

and circumstances of the offense and the history and characteristics of the defendant; (2)

3 the need for the sentence imposed to afford adequate deterrence to criminal conduct; (3)

the need for the sentence imposed to protect the public from further crimes of the

defendant; (4) the need for the sentence imposed to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in the most

effective manner; (5) the kinds of sentence and sentencing range established for the

applicable category of offense committed, as set forth in the Sentencing Guidelines; (6)

pertinent policy statements issued by the Sentencing Commission; (7) the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct; and (8) the need to provide restitution to any victims of

the offense.

(e), 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7).

Here, the record does not indicate whether the district court considered the identified

factors. Accordingly, we are unable to meaningfully review this portion of the district

court’s order. We therefore vacate the district court’s order denying Niblock’s § 3583(e)

motion and remand for further proceedings. We express no view on the merits of Niblock’s

motion for early termination of supervised release. 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 IN PART, VACATED AND REMANDED IN PART

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