United States v. Michael Melton , 496 F. App'x 297 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RUFUS MELTON, a/k/a Head,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00941-RBH-11)
Submitted: October 10, 2012 Decided: November 5, 2012
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
A. Jackson Barnes, ALLEN JACKSON BARNES ATTORNEY AT LAW LLC,
Sumter, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Rufus Melton pled guilty to one count of
possessing with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2006), and was sentenced to sixty-six
months in prison. In accordance with Anders v. California, 386
U.S. 738 (1967), Melton’s counsel filed a brief certifying that
there are no meritorious issues for appeal but questioning the
district court’s findings regarding the quantity of drugs
attributable to Melton for sentencing purposes, the court’s
failure to apply an additional one-level reduction to Melton’s
offense level for his acceptance of responsibility, and whether
Melton’s prosecution violated double jeopardy. Although
notified of his right to do so, Melton did not file a
supplemental pro se brief.
On review of the record, we directed supplemental
briefing addressing whether the Government breached the terms of
Melton’s plea agreement or abused its discretion by declining to
move for an additional one-level reduction in Melton’s offense
level pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 3E1.1(b) (2010). Conceding its breach of the plea agreement,
the Government has moved to vacate Melton’s sentence and remand
for resentencing. Melton has joined in the Government’s motion,
and, for the following reasons, we grant the Government’s
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motion, affirm in part, vacate in part, and remand for
resentencing.
Looking first to Melton’s conviction, we conclude that
Melton’s parallel prosecution in state court for the conduct
supporting this federal conviction does not raise double
jeopardy concerns. See United States v. Alvarado, 440 F.3d 191,
196-97 (4th Cir. 2006) (explicating dual sovereignty doctrine).
We therefore affirm the conviction.
We do agree with the parties, however, that the
Government breached Melton’s plea agreement in failing to move
for a reduction in Melton’s offense level for his acceptance of
responsibility under USSG § 3E1.1(b). Because Melton did not
claim such a breach in the district court, we review for plain
error. Puckett v. United States, 556 U.S. 129, 133-34 (2009).
Accordingly, Melton must show not only that the Government
plainly breached his plea agreement, but also that he was
prejudiced by the error and that “the breach was so obvious and
substantial that failure to notice and correct it affect[s] the
fairness, integrity or public reputation of the judicial
proceedings.” United States v. McQueen, 108 F.3d 64, 65-66 (4th
Cir. 1997) (internal quotation marks and alteration omitted);
see United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).
Here, Melton’s plea agreement unambiguously obligated
the Government to move for an additional reduction in his
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offense level under § 3E1.1(b) “if [Melton] qualifie[d] for a
decrease under [USSG] § 3E1.1(a),” and requested the district
court to consider the agreement as such a motion. Accordingly,
because the court granted Melton the benefit of § 3E1.1(a), we
find that the Government correctly concedes that it clearly
breached Melton’s plea agreement by refusing to move for the
§ 3E1.1(b) reduction. Cf. Dawson, 587 F.3d at 644-48.
Concluding that Melton’s substantial rights were affected by
this breach, we find that he has established plain error and is
entitled to the resentencing he and the Government request. Id.
Such resentencing will be before a different district court
judge. * Santobello v. New York, 404 U.S. 257, 263 (1971); see
Dawson, 587 F.3d at 648.
Although we vacate Melton’s sentence and remand for
resentencing, we conclude that judicial resources will be best
conserved if we address in this appeal counsel’s challenge to
the district court’s calculation of relevant conduct under USSG
§ 1B1.3. We review for clear error the district court’s factual
findings for relevant conduct. United States v. Brooks, 524
*
We emphasize that our decision to direct resentencing
before a different judge is in no way a reflection on the able
district court judge who originally sentenced Melton; the error
here was the Government’s. Nevertheless, consistent with our
precedent, we conclude that the appearance of judicial
neutrality will be best served if the resentencing proceeding is
conducted by a judge without prior involvement in this matter.
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F.3d 549, 565 (4th Cir. 2008). Here, as Melton concedes, the
district court carefully evaluated drug quantity after taking
evidence on the issue, rejecting the highest estimation as
supported by less reliable evidence. We find no error in the
district court’s findings in this regard. See United States v.
Bell, 667 F.3d 431, 441 (4th Cir. 2011) (holding government must
establish drug quantity under preponderance of evidence
standard). Therefore, on remand, the sentencing court need not
revisit its earlier findings as to relevant conduct, but is not
precluded from doing so, should it be so inclined.
In accordance with Anders, we have reviewed the record
and have found no other meritorious issues for appeal. We
therefore affirm Melton’s conviction, grant the Government’s
motion, vacate Melton’s sentence, and remand for resentencing
consistent with this opinion and before a different district
court judge. This court requires that counsel inform Melton, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Melton requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Melton. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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