Government Can’t Identify New Potential ACCA Predicate at Sentencing and Waited Too Long to Invoke Appeal Waiver

United States v. Melvin: Melvin pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer identified four prior convictions that they considered Armed Career Criminal Act predicates, three of which Melvin objected to. The Government neither filed a sentencing memo or objected to the PSR. At sentencing, the district court agreed with Melvin as to two of the predicates, leaving only two ACCA predicates. The Government then identified another potential ACCA predicate and explained that it hadn’t objected to the PSR about it because it was unclear what the basis for Melvin’s objections were and “based on seeing that there were four predicates.” Over Melvin’s objection, the district court granted a continuance for the parties to brief whether the newly identified offense was an ACCA predicate. At a subsequent hearing it concluded that it was and sentenced Melvin to 188 months in prison.

A divided Fourth Circuit vacated Melvin’s sentence. First, the court concluded that the Government had waited too long to invoke the appeal waiver in seeking to dismiss Melvin’s appeal. In response to both Melvin’s original brief and a “supplemental Anders brief” the Government had filed motions for “summary disposition on the merits.” It was only after Melvin got new counsel and the court struck the initial briefs that the Government moved to dismiss. That was too late, as the Government was required to move to dismiss at the time it filed its original response to Melvin’s initial brief. Second, the court held that, under Hodge, the Government could not identify an additional ACCA predicate at sentencing. It distinguished prior precedent on the ground that here the Government waited until after the district court’s ruling to assert the additional predicate, whereas in the prior case the district court had not yet ruled.

Judge Agee concurred in the holding on the waiver, but dissented on the merits, arguing that the majority imposes to great a burden on the district court and was contrary to prior precedent.