UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
- 2 -
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
- 3 -
“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
- 4 -
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.
- 5 -