United States v. Melton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4341
DONALD WAYNE MELTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-00-490)

Submitted: September 30, 2002

Decided: December 3, 2002

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Amy A. Wise, AIKEN BRIDGES, Florence, South Carolina, for
Appellant. J. Strom Thurmond, Jr., United States Attorney, Regan A.
Pendleton, Assistant United States Attorney, Greenville, South Caro-
lina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MELTON
OPINION

PER CURIAM:

Donald Wayne Melton pled guilty to bank robbery, 18 U.S.C.
§ 2113(a) (2000), and was sentenced as a career offender, U.S. Sen-
tencing Guidelines Manual § 4B1.1 (2000), to a term of 168 months
imprisonment. He appeals his sentence, arguing that the district court
erred in finding that his prior burglary offenses were not related cases.
USSG § 4A1.2(a), comment. (n.3.) We affirm.

A defendant is a career offender if he is at least eighteen years old
when he commits the instant offense, the instant offense is a felony
and is either a crime of violence or a serious drug offense, and he has
at least two prior convictions for crimes of violence or serious drug
offenses. USSG § 4B1.1. A crime of violence is defined in § 4B1.2(a)
as any federal or state offense that is punishable by a term of impris-
onment exceeding one year, and that

(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.

The two prior felony convictions must carry sentences that are
counted separately in the defendant’s criminal history under USSG
§ 4A1.1. See USSG § 4B1.2(c). Sentences for related cases are treated
as one sentence. See USSG § 4A1.2(a)(2). Cases are considered
related if there was no intervening arrest and (1) the offenses occurred
on the same occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentencing. See USSG
§ 4A1.2, comment. (n.3). The district court’s determination that the
robberies were part of a common scheme or plan is reviewed for clear
error. United States v. Rivers, 929 F.2d 136, 140 (4th Cir. 1991).

The relevant factors in deciding whether offenses are part of a sin-
gle common scheme or plan are: whether the crimes were committed
 UNITED STATES v. MELTON 3
within a short period of time, were committed in close geographic
proximity, involved the same substantive offense, were directed at a
common victim, were solved during the course of a single criminal
investigation, shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only because
of an accident of geography. United States v. Breckenridge, 93 F.3d
132, 138 (4th Cir. 1996) (citations omitted). Not all of these factors
must be present for there to be a common scheme or plan, nor does
the presence of a few of them require that finding. Id. Temporal and
geographic proximity are significant, but not determinative. Id. The
same is true of a common motive or a single police investigation
(unless it was a targeted investigation). Id. The fact that the defendant
received concurrent sentences does not make separate offenses
related, but the fact that the offenses were substantively similar may
be significant. Id.

Melton’s four countable prior residential burglaries* occurred on
four separate occasions, beginning on July 12 and ending on October
1, 1989, involved four separate victims, and were prosecuted in three
jurisdictions: Spartanburg and Greenville, South Carolina, and Polk
County, North Carolina. The two burglaries that were prosecuted in
Spartanburg bore different docket numbers and, although the sen-
tences were run concurrently, the cases were not formally consoli-
dated. See United States v. Allen, 50 F.3d 294, 297 (4th Cir. 1995) (to
be "consolidated for sentencing," cases must be formally consolidated
or factually related).

Melton argues that he had a common motive for committing all the
burglaries—to support his drug habit. However, this court has previ-
ously refused to find prior crimes related because a defendant was
motivated to commit each of them to sustain his drug addiction. See
United States v. Sanders, 954 F.2d 227, 231-32 (4th Cir. 1992); Riv-

*Melton also was convicted of offenses involving entry into an out-
door lot, a storage trailer, a garage, two businesses, and a motor vehicle.
These offenses arguably were not crimes of violence as defined in USSG
§ 4B1.2(a) (burglary of a dwelling or offense that presents serious risk
of physical injury to another). No criminal history points were assigned
for any of the offenses, however, and the district court did not rely on
any of them in finding Melton a career offender.
4 UNITED STATES v. MELTON
ers, 929 F.2d at 140. Thus, the district court did not err in concluding
that Melton’s prior convictions were not related cases under USSG
§ 4A1.2 and in sentencing him as a career offender.

We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED