Background
Donald Craig Melvin pleaded guilty to being a felon in possession of a firearm. His presentence report identified four prior convictions as possible predicates under the Armed Career Criminal Act, which mandates at least 15 years in prison for a qualifying defendant with three predicate convictions. Melvin timely objected to three of the four convictions, while the government neither objected to the report nor filed a sentencing memorandum.
At sentencing, the district court sustained two of Melvin’s objections, leaving only two qualifying predicates. The government then proposed a 1995 conviction that the presentence report had not designated as an ACCA predicate. Over Melvin’s objection, the court continued the proceeding, obtained a supplemental presentence report, accepted the newly proposed predicate, and sentenced Melvin under ACCA to 188 months in prison.
On appeal, the government invoked Melvin’s appeal waiver only after it had twice responded to earlier appellate filings on the merits. The Fourth Circuit concluded that the government had forfeited reliance on the waiver by failing to raise it in its first merits-based filing.
The Court’s Holding
The Fourth Circuit held that the district court violated Federal Rule of Criminal Procedure 32 and circuit precedent by permitting the government to identify a new ACCA predicate only after its original predicates proved insufficient. Rule 32 required the government to object in writing within 14 days to relevant information omitted from the presentence report, unless it established good cause for a late objection.
The government did not show good cause. Its explanation—that it did not fully understand Melvin’s objections and believed the four listed predicates would suffice—did not justify withholding an available alternative until after the court ruled against it. The court distinguished cases in which the government raised an alternative basis before an adverse sentencing ruling or during an entirely new, de novo resentencing.
The error was not harmless because the late-added predicate exposed Melvin to ACCA’s 15-year mandatory minimum and produced a 188-month sentence. Without the enhancement, his statutory maximum was 10 years. The court therefore vacated the sentence and remanded with instructions to resentence Melvin without the ACCA enhancement.
Key Takeaways
- The government must timely identify or object to omitted ACCA predicates under Rule 32 and generally may not keep an alternative predicate in reserve until its original choices fail.
- A continuance and supplemental briefing did not cure the violation where the government raised the new predicate only after receiving an adverse ruling.
- The government forfeited Melvin’s appeal waiver by addressing his claims on the merits in two earlier appellate filings without invoking the waiver.
- The sentencing error was not harmless because it increased Melvin’s permissible sentence from a 10-year maximum to a sentence exceeding 15 years.
Why It Matters
The decision reinforces that Rule 32’s objection deadlines apply equally to prosecutors and defendants. When a presentence report specifically identifies the convictions supporting an ACCA enhancement, the government ordinarily cannot substitute an undesignated conviction after the sentencing court rejects enough listed predicates to defeat the enhancement.
The ruling also warns appellate counsel to invoke appeal waivers promptly. A party cannot litigate the merits first and later deploy an available nonjurisdictional waiver after its earlier arguments fail.