United States v. Adams ( 2001 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 00-4574
    MELVIN ADAMS,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of North Carolina, at Raleigh.
    James C. Fox, Senior District Judge.
    (CR-93-102-F)
    Argued: September 28, 2001
    Decided: October 16, 2001
    Before MICHAEL and MOTZ, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: George Alan DuBois, Assistant Federal Public Defender,
    Raleigh, North Carolina, for Appellant. Banumathi Rangarajan,
    Assistant United States Attorney, Raleigh, North Carolina, for Appel-
    lee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
    Raleigh, North Carolina, for Appellant. Janice McKenzie Cole,
    United States Attorney, Anne M. Hayes, Assistant United States
    Attorney, Raleigh, North Carolina, for Appellee.
    2                      UNITED STATES v. ADAMS
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Melvin Adams appeals the district court’s order denying his motion
    for a downward departure at sentencing. We dismiss the appeal.
    I.
    In December 1993, a jury convicted Adams of multiple drug and
    firearm offenses. The district court sentenced him to 295 months in
    prison and imposed a fine of $12,000 — $2,000 for each of six counts
    of conviction. When Adams appealed we upheld his convictions but
    remanded for re-sentencing because he had been held accountable for
    a greater quantity of cocaine than the evidence warranted. United
    States v. Morsley, 
    64 F.3d 907
     (4th Cir. 1995). On remand, in Novem-
    ber of 1995, the district court reduced Adams’ sentence to 248 months
    but did not reduce his fines.
    In April 1997, Adams moved to vacate his sentence and conviction
    under 
    28 U.S.C. § 2255
     (West Supp. 2001), arguing that he had
    received ineffective assistance of counsel during trial and that Bailey
    v. United States, 
    516 U.S. 137
     (1995), rendered his conviction under
    
    18 U.S.C. § 924
    (c) (1994) unlawful. The district court rejected the
    ineffective assistance claims but vacated Adams’ § 924(c) conviction.
    At the re-sentencing hearing, Adams moved for a downward depar-
    ture on the ground that he had made an extraordinary post-sentencing
    rehabilitation while in prison. The district court denied his motion for
    downward departure and sentenced him within the guideline range to
    236 months. The court also reduced Adams’ fine to $10,000. In deter-
    mining that Adams was able to pay the fine, the district court relied
    on the statements of the United States Attorney and a parole officer,
    and did not make an independent determination that Adams was able
    to pay, as it was required to do by 
    18 U.S.C. §§ 3572
    (d) (1994) and
    3663(f)(1) (West Supp. 2001). See United States v. Miller, 
    77 F.3d 71
    UNITED STATES v. ADAMS                         3
    (4th Cir. 1996); cf. United States v. Dawkins, 
    2 F.3d 711
    , 717 (4th
    Cir. 2000).
    When Adams appealed in March 1998, he pursued only his ineffec-
    tive assistance of counsel claims, and we affirmed the district court
    in an unpublished opinion. Adams never appealed the district court’s
    failure to depart downward from the sentencing guidelines on the
    basis of extraordinary post-sentencing rehabilitation, or the district
    court’s failure to make findings as to his ability to pay the fine.
    On March 7, 2000, Adams petitioned the district court for a "Writ
    of Error Coram Nobis" on the ground that the court had failed to
    make findings as to his ability to pay the fine. Without questioning
    whether Adams was entitled to the writ, or whether Adams was enti-
    tled to bring any other challenge at this late date, the district court
    vacated the fine and gave Adams a third re-sentencing hearing so that
    it could "make the appropriate findings and enter an appropriate order
    with regard to the fine."
    Adams moved quickly to broaden the scope of the hearing. He
    again asked the court to sentence him below the guideline range,
    again contending that he had made extraordinary post-sentencing
    rehabilitation. The district court denied his motion because it believed
    it had no authority to depart downward on this basis. The court then
    made findings as to Adams’ ability to pay the fine and reimposed the
    $10,000 fine. Adams now appeals his sentence, contending that the
    district court should have considered his motion for a downward
    departure based on extraordinary post-sentencing rehabilitation. See
    United States v. Bradstreet, 
    207 F.3d 76
     (1st Cir. 2000); United States
    v. Rudolph, 
    190 F.3d 720
     (6th Cir. 1999); United States v. Green, 
    152 F.3d 1202
     (9th Cir. 1998); United States v. Rhodes, 
    145 F.3d 1375
    (D.C. Cir. 1998); United States v. Core, 
    125 F.3d 74
     (2d Cir. 1997);
    and United States v. Sally, 
    116 F.3d 76
     (3d Cir. 1997) (all holding that
    a court may depart downward when re-sentencing a defendant if the
    court finds defendant has made extraordinary rehabilitative efforts
    since first being sentenced for the instant offense); but see United
    States v. Sims, 
    174 F.3d 911
     (8th Cir. 1999), and United States Sen-
    tencing Guideline Manual § 5K2.19 (2001) (disallowing departure on
    this basis).
    4                      UNITED STATES v. ADAMS
    II.
    For the reasons that follow, we decline to reach the merits of
    Adams’ appeal.
    We note at the outset that Adams was not entitled to a writ of
    coram nobis to correct the procedural error in his second re-
    sentencing. This writ is available only in very limited circumstances,
    and then only to persons no longer in custody. See United States v.
    Mandel, 
    862 F.2d 1067
    , 1075 (4th Cir. 1989) ("federal courts have the
    power under the All-Writs Act, 
    28 U.S.C. § 1651
    (a)[,] to grant a writ
    of error coram nobis to vacate a conviction after the sentence has
    been served") (emphasis added); cf. United States v. Morgan, 
    346 U.S. 502
     (1954); see also Carlisle v. United States, 
    517 U.S. 416
    , 429
    (1996) ("it is difficult to conceive of a situation in a federal criminal
    case today where [a writ of coram nobis] would be necessary or
    appropriate.") (citations omitted). Adams, of course, was still in cus-
    tody when he filed his petition and so was not eligible to obtain the
    writ.
    By itself, however, this mistake would not have barred Adams’
    petition for a third re-sentencing. We have held that pro se pleadings
    "must" be held to "less stringent standards than pleadings drafted by
    attorneys and must [be] read . . . liberally." White v. White, 
    886 F.2d 721
    , 722-23 (4th Cir. 1989). The appropriate motion for a collateral
    attack by a defendant in custody is 
    28 U.S.C. § 2255
    , and we there-
    fore treat Adams’ petition as though it were filed under that statute.
    See, e.g., United States v. Wilson, 
    901 F.2d 378
     (4th Cir. 1990) (hold-
    ing that district court properly treated petition for writ of coram nobis
    as § 2255 motion).
    But even when read as a § 2255 motion, the March 2000 petition
    should have been procedurally barred. After the district court re-
    sentenced him in January 1998, Adams was entitled to pursue a direct
    appeal from the court’s orders. Adams failed to do this, and he has
    not shown the cause and prejudice that would entitle him to a collat-
    eral attack after having waived his appeal rights. His § 2255 petition
    should therefore have been barred. See Stone v. Powell, 
    428 U.S. 465
    ,
    478 n.10 (1976); Coleman v. Thompson, 
    501 U.S. 722
     (1991); 3
    UNITED STATES v. ADAMS                         5
    Charles Alan Wright, Federal Rules of Criminal Procedure § 596.1
    (2nd ed. 1982 & Supp. 2001).
    Because the government did not raise this procedural bar in the dis-
    trict court or on appeal we need not vacate the district court’s grant
    of Adams’ § 2255 motion. See United States v. Metzger, 
    3 F.3d 756
    ,
    757 (1993). But the court’s mistaken grant is the only reason Adams
    was able to raise the issue of post-sentencing rehabilitation. (Post-
    sentencing rehabilitation cannot, by itself, serve as the basis for a
    § 2255 motion.) In the interests of "judicial efficiency [and] conserva-
    tion of scarce judicial resources," id. at 758, we will not now permit
    Adams to raise his procedurally derivative issue on appeal when the
    § 2255 motion on which it depends should have been barred.
    Accordingly, the appeal is
    DISMISSED.