United States v. Melvin Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4608

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MELVIN ANTHONY BROWN, a/k/a Algernon J. Goodwin,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at

Columbia. Terry L. Wooten, Chief District Judge. (3:13-cr-00865-TLW-1)

Submitted: June 28, 2018 Decided: July 24, 2018

Before WILKINSON, TRAXLER, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

S. Harrison Saunders, VI, LAW OFFICE OF S. HARRISON SAUNDERS, VI, LLC,

Columbia, South Carolina, for Appellant. Tommie DeWayne Pearson, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Melvin Anthony Brown appeals his conviction and 90-month sentence imposed by

the district court after he pled guilty to access device fraud, in violation of 18 U.S.C.

§ 1029(a)(2), (c)(1)(A)(i) (2012). 1 Appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), concluding that there are no meritorious grounds for

appeal. Counsel questions, however, whether Brown’s guilty plea was knowing and

voluntary, whether Brown’s sentence is reasonable, and whether Brown was entitled to an

evidentiary hearing in his related 28 U.S.C. § 2255 proceeding. Brown was notified of his

right to file a pro se supplemental brief and has filed several supplemental briefs. 2 We

affirm.

1

Brown subsequently filed a motion under 28 U.S.C. § 2255 (2012), contending,

among other things, that counsel failed to file a notice of appeal after being directed to do

so. See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Without an evidentiary

hearing, the district court granted relief on Brown’s Peak claim and dismissed the

remaining claims without prejudice. In accordance with Peak, the district court entered an

amended criminal judgment, from which Brown and his counsel both filed timely notices

of appeal. After the district court entered the amended criminal judgment—the subject of

this appeal—the district court granted Brown’s Fed. R. Civ. P. 59(e) motion in the § 2255

proceeding, vacated its prior order, and purported to vacate the amended criminal

judgment, and, in a separate order, rejected on the merits Brown’s ineffective assistance

claim relating to a role-in-the-offense enhancement and found all other ineffective

assistance claims waived. Because the district court entered the amended criminal

judgment and Brown filed his notice of appeal before the district court granted Rule 59(e)

relief, we conclude that the portion of the district court’s order purporting to vacate the

amended criminal judgment does not affect this appeal. See Doe v. Pub. Citizen, 749 F.3d

246, 258 ) (4th Cir. 2014).

2

Specifically, Brown contends that the district court’s bias and “overbearing

demeanor” created a conflict of interest between Brown and defense counsel that caused

counsel to provide ineffective assistance; that counsel provided ineffective assistance by

failing to properly investigate and prepare effective mitigating evidence and by advising

2

A guilty plea is valid if the defendant voluntarily, knowingly, and intelligently pleads

guilty “with sufficient awareness of the relevant circumstances and likely consequences.”

United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013) (internal quotation marks

omitted). Before accepting a guilty plea, a district court must ensure that the plea is

knowing, voluntary, and supported by an independent factual basis. Fed. R. Crim. P. 11(b);

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). “In evaluating the

constitutional validity of a guilty plea, courts look to the totality of the circumstances

surrounding it, granting the defendant’s solemn declaration of guilt a presumption of

truthfulness.” United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (brackets and

internal quotation marks omitted). With regard to the factual basis, “the district court

possesses wide discretion, and it need only be subjectively satisfied that there is a sufficient

factual basis for a conclusion that the defendant committed all of the elements of the

him to withdraw his challenge to a sentencing enhancement; that the district court erred in

ordering restitution; that the district court erred by granting Brown’s § 2255 motion and

allowing him to file a direct appeal, knowing that Brown’s plea agreement contained an

appeal waiver; that he is entitled to relief under United States v. Carthorne, 878 F.3d 458

(4th Cir. 2017); and that he is entitled to relief under Rosales-Mireles v. United States, 138

S. Ct. 1897 (2018).

The ineffective assistance claims relating to the failure to object to the role

enhancement and the filing of a belated notice of appeal, as well as the claim regarding the

absence of an evidentiary hearing in the § 2255 proceeding, are not before us because

Brown did not file a notice of appeal from the § 2255 order entered by the district court in

October 2017. Further, the claim relating to the alleged conflict of interest is not cognizable

in this direct appeal. See United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)

(providing standard for ineffective assistance claims raised on direct appeal). Finally, we

have considered Brown’s remaining pro se claims and conclude that they lack merit.

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offense.” United States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (internal quotation

marks omitted).

Because Brown neither raised an objection during the Fed. R. Crim. P. 11 proceeding

nor moved to withdraw his guilty plea in the district court, we review his Rule 11

proceeding for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). To

prevail under the plain error standard, Brown “must demonstrate not only that the district

court plainly erred, but also that this error affected his substantial rights.” Id. at 816. A

defendant who pled guilty establishes that an error affected his substantial rights by

demonstrating a reasonable probability that he would not have pled guilty but for the error.

United States v. Davila, 569 U.S. 597, 608 (2013).

We conclude that the district court’s minor omissions from the plea colloquy3 did

not affect Brown’s substantial rights and that the court did not plainly err in finding that

Brown knowingly and voluntarily entered his plea and that an adequate factual basis

supported it. See 18 U.S.C. § 1029(a)(2); Davila, 569 U.S. at 608. Moreover, based on the

totality of the circumstances, Brown has not rebutted the presumption of truthfulness

accorded his “solemn declaration[s]” at the plea colloquy. See Moussaoui, 591 F.3d at 278.

Thus, we conclude that Brown’s plea was knowing and voluntary, Fisher, 711 F.3d at 464,

3

Specifically, the district court did not inform Brown of his right to counsel at every

stage of the proceedings, Fed. R. Crim. P. 11(b)(1)(D); his rights to present evidence and

against compelled self-incrimination, Fed. R. Crim. P. 11(b)(1)(E); the possibility of asset

forfeiture, Fed. R. Crim. P. 11(b)(1)(J); the court’s obligation to consider the 18 U.S.C.

§ 3553(a) (2012) factors, Fed. R. Crim. P. 11(b)(1)(M); and the potential immigration

consequences of pleading guilty, Fed. R. Crim. P. 11(b)(1)(O).

4

and “final and binding,” United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en

banc).

Next, “[w]e review a sentence for reasonableness ‘under a deferential abuse-of-

discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). This review entails appellate consideration

of both the procedural and substantive reasonableness of the sentence. Gall, 552 U.S. at

51. In determining procedural reasonableness, we must consider whether the district court

properly calculated the Guidelines range, treated the Guidelines as advisory rather than

mandatory, gave the parties an opportunity to argue for an appropriate sentence, considered

the § 3553(a) factors, selected a sentence not based on clearly erroneous facts, and

sufficiently explained the chosen sentence. Id. at 49-51. If the district court’s sentencing

decision is procedurally reasonable, then we must consider whether the sentence imposed

is substantively reasonable. Id. at 51. Substantive reasonableness is based on “the totality

of the circumstances.” Id. We presume that a sentence imposed within a properly

calculated Guidelines range is reasonable. United States v. Louthian, 756 F.3d 295, 306

(4th Cir. 2014).

Our review of the record leads us to conclude that the district court committed no

significant procedural error. See Gall, 552 U.S. at 49-51. Substantively, Brown’s sentence

of 90 months is within the properly calculated Guidelines range, and Brown has not

rebutted the presumption of reasonableness accorded his within-Guidelines-range

sentence. See Louthian, 756 F.3d at 306. We therefore conclude that the sentence is

reasonable. See Gall, 552 U.S. at 51.

5

In accordance with Anders, we have reviewed the entire record in this case and have

identified no meritorious grounds for appeal. We therefore affirm the amended criminal

judgment of the district court. This court requires that counsel inform Brown, in writing,

of the right to petition the Supreme Court of the United States for further review. If Brown

requests that a petition be filed, but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Brown.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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