United States v. Melvin ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4372
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGINALD CUTTINO MELVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-02-201-1)
Submitted: July 15, 2005 Decided: August 9, 2005
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed in part, vacated and remanded by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Reginald Cuttino Melvin appeals a fifty-seven month
sentence imposed following his guilty plea to one count of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).
In determining the sentencing range under the Sentencing
Guidelines,* the probation officer determined that Melvin’s base
offense level was fourteen pursuant to USSG § 2K2.1(a)(6). This
offense level was enhanced by two levels pursuant to USSG § 3C1.1,
based upon Melvin’s obstruction of justice by failing to completely
disclose financial information to the probation officer. As a
result of this failure, Melvin was also denied a reduction in
offense level for acceptance of responsibility. Melvin’s prior
convictions and the fact that he committed the instant offenses
while he was on probation from a previous conviction resulted in a
total of fifteen criminal history points, placing him in criminal
history category VI. Melvin’s offense level of sixteen and
criminal history category of VI resulted in a sentencing range of
forty-six to fifty-seven months of imprisonment.
On appeal, Melvin asserts that his sentence violates the
Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296(2004). He contends that the obstruction of justice enhancement of
*
U.S. Sentencing Guidelines Manual (2001) (“USSG”).
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his offense level violated the Sixth Amendment because it was not
charged in the indictment, found by a jury, or admitted by Melvin.
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme
Court applied the rationale of Blakely to the federal sentencing
guidelines and held that the mandatory guidelines scheme that
provided for sentence enhancements based on facts found by the
court violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48,
755-56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising the statutory
provisions that mandate sentencing and appellate review under the
guidelines, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court).
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), this court held that a sentence that was
imposed under the pre-Booker mandatory sentencing scheme and was
enhanced based on facts found by the court, not by a jury (or, in
a guilty plea case, admitted by the defendant), constitutes plain
error. That error affects the defendant’s substantial rights and
warrants reversal under Booker when the record does not disclose
what discretionary sentence the district court would have imposed
under an advisory guideline scheme. Hughes, 401 F.3d at 546-56.
We directed sentencing courts to calculate the appropriate
guideline range, consider that range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
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(West 2000 & Supp. 2005), and impose a sentence. If the district
court imposes a sentence outside the guideline range, the court
should state its reasons for doing so. Id. at 546.
Because Melvin withdrew his objections to the sentencing
range of forty-six to fifty-seven months of imprisonment set forth
in the presentence report (“PSR”) and adopted by the district
court, we review the district court’s guideline calculation for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993);
Hughes, 401 F.3d at 547. Under the plain error standard, Melvin
must show: (1) there was error; (2) the error was plain; and
(3) the error affected his substantial rights. Olano, 507 U.S. at
732-34. Even when these conditions are satisfied, we may exercise
our discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736. (internal quotation marks omitted).
The obstruction of justice enhancement was based upon
Melvin’s failure to completely disclose his financial assets to the
probation officer during preparation of the PSR. Melvin does not
contest the accuracy of the facts supporting the enhancement, but
merely argues it was improperly applied in his case. The facts
supporting the enhancement were not charged in the indictment,
discussed at the plea hearing, or admitted by Melvin. If this
enhancement were removed, Melvin’s total offense level would be
fourteen, and his sentencing range would be thirty-seven to
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forty-six months. Because the fifty-seven-month sentence imposed
does not fall within the guideline range calculated without the
two-level enhancement, we conclude that Melvin’s sentence
constitutes plain error that affects his substantial rights and
requires resentencing pursuant to Booker and Hughes.
Melvin also asserts that his Sixth Amendment rights were
violated in the computation of his criminal history category. He
argues that the factual findings required to determine whether
particular convictions are countable and how many points are
assessed involve more than the mere fact of a prior conviction and
therefore are subject to the requirements of Blakely, essentially
arguing that the prior conviction exception laid out in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), may no
longer be good law. This argument is foreclosed by the Supreme
Court’s reaffirmation of the Almendarez-Torres prior conviction
exception in Booker. See Booker, 125 S. Ct. at 756 (“Any fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”). While
Justice Thomas’s concurrence in Shepard v. United States, 125 S.
Ct. 1254, 1263-64 (2005), expressed doubt about the future
viability of the exception, the exception is still good law.
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Nor does the application of the prior conviction
exception to Melvin raise any of the problems outlined in Shepard.
In Shepard, the Supreme Court instructed that Sixth Amendment
protections apply to disputed facts about a prior conviction. Id.
at 1262-63. Because no facts related to Melvin’s prior convictions
were disputed, the district judge’s determination of Melvin’s
criminal history did not violate the Sixth Amendment. Cf. United
States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding
that district court’s reliance on disputed facts about the
defendant’s prior conviction violated the defendant’s Sixth
Amendment right to trial by jury).
Melvin also asserts that counsel was ineffective in
failing to object to the obstruction of justice enhancement and the
district court’s failure to make the required factual findings to
support the imposition of a fine. An allegation of ineffective
assistance should not proceed on direct appeal unless it appears
conclusively from the record that counsel’s performance was
ineffective. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Our review of the record leads us to conclude that
deficient performance is not conclusively apparent from the record.
We therefore decline to consider Melvin’s allegations of
ineffective assistance of counsel, which he may assert in a motion
pursuant to 28 U.S.C. § 2255 (2000).
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We accordingly affirm Melvin’s conviction, but vacate his
sentence and remand for resentencing. 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.
AFFIRMED IN PART,
VACATED AND REMANDED
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