United States v. Adams

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 71UNITED 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.