United States v. Melvin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4090

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY WADE MELVIN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-247)

Submitted: August 12, 2005 Decided: September 21, 2005

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Anthony Wade Melvin pled guilty to bank robbery in

violation of 18 U.S.C. § 2113(a) (2000) and was sentenced to 151

months’ imprisonment. On appeal, Melvin asserts the district court

erred when it concluded he was a career offender under U.S.

Sentencing Guidelines Manual § 4B1.1. Melvin also argues that the

court violated the Sixth Amendment under United States v. Booker,

125 S. Ct. 738 (2005); in the alternative, he argues that the court

erred by applying the sentencing guidelines as mandatory. We

vacate his sentence and remand for resentencing.

This court reviews a district court’s legal

interpretation of the sentencing guidelines de novo. United

States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). The only

contested issue in determining Melvin’s status as a career offender

is whether Melvin has “at least two” relevant prior “convictions,”

as required by USSG § 4B1.1(a)(3). This court has held that the

term “conviction” in the career offender sentencing guideline

refers to “the finding of guilt by a judge or jury precedent to the

entry of a final judgment of conviction.” United States v.

Brandon, 363 F.3d 341, 347 (4th Cir. 2004). Because Melvin pled

guilty to four offenses, the district court properly concluded that

he was a career offender.

Melvin argues that his prior convictions should count as only

one “conviction” under the career offender sentencing guideline

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because he received only one sentence, and they are therefore

“related” under USSG § 4A1.2(a)(2). However, “[p]rior sentences

are not considered related if they were for offenses that were

separated by an intervening arrest (i.e., the defendant is arrested

for the first offense prior to committing the second offense).”

USSG § 4A1.2, comment. (n.3); United States v. Huggins, 191 F.3d

532, 539 (4th Cir. 1999) (despite consolidated sentences,

“[b]ecause there was an intervening arrest, Huggins cannot avoid

classification as a career offender by arguing that his offenses

were related”). When Melvin was arrested for felonious assault,

charges were then—pending against him in state court for felonious

possession with intent to sell and deliver marijuana, felonious

maintaining of a vehicle or dwelling for controlled substances, and

misdemeanor possession of drug paraphernalia. The state court

consolidated the cases for judgment, resulting in one sentence. We

find the district court properly concluded the offenses were

unrelated because of the intervening arrest for felonious assault.

Therefore, Melvin is a career offender under USSG § 4B1.1.

Next Melvin argues that the court violated the Sixth

Amendment under Booker. He asserts two claims in support of this

position. First, Melvin contends that the court found facts that

subjected him to a career offender status and that were neither

admitted nor found by a jury beyond a reasonable doubt. In United

States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005), this court held

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“that the Sixth Amendment (as well as due process) does not demand

that the mere fact of a prior conviction used as a basis for a

sentencing enhancement be pleaded in an indictment and submitted to

a jury for proof beyond a reasonable doubt.” Here, although the

district court relied on the existence of Melvin’s prior

convictions to find that he was a career offender and to enhance

his sentence, the facts relied upon were all inherent to the fact

of his prior conviction. Therefore, we conclude that the district

court did not err in designating Melvin as a career offender, and

Melvin’s sentence did not violate the Sixth Amendment on that

basis.

Melvin also argues that the district court erred by

applying the sentencing guidelines as mandatory and that the error

affected his substantial rights. Even if we assume plain error

analysis applies, as the Government argues, we conclude plain error

occurred that affected Melvin’s substantial rights. The court

sentenced Melvin at the very bottom of the calculated guidelines

range. Simultaneously, however, the court announced an alternative

sentence, applying Blakely v. Washington, 542 U.S. 296 (2004), to

the guidelines, that was far below the actual sentence it imposed.

We conclude therefore that Melvin has established his substantial

rights have been affected by the court’s application of the

sentencing guidelines as mandatory. See United States v. White,

405 F.3d 208, 223-24 (4th Cir. 2005); United States v. Hughes, 401

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F.3d 540, 555 (4th Cir. 2005). We therefore vacate his sentence

and remand for resentencing in accordance with Booker.*

Although the sentencing guidelines are no longer

mandatory, Booker makes clear that a sentencing court must still

“consult [the] Guidelines and take them into account when

sentencing.” 125 S. Ct. at 767. On remand, the district court

should first determine the appropriate sentencing range under the

guidelines, making all factual findings appropriate for that

determination. See Hughes, 401 F.3d at 546 (applying Booker on

plain error review). The court should consider this sentencing

range along with the other factors described in 18 U.S.C. § 3553(a)

(2000), and then impose a sentence. Id. If that sentence falls

outside the guidelines range, the court should explain its reasons

for the departure as required by 18 U.S.C. § 3553(c)(2) (2000).

Id. The sentence must be “within the statutorily prescribed range

and . . . reasonable.” Id. at 546-47.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

VACATED AND REMANDED

*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Melvin’s sentencing.

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