United States v. Toi Melvin, 557 F. App'x 390

Background

Melvin pled guilty (2008) to three counts of distributing crack; plea agreement waived direct appeal and §2255 relief except if sentence exceeded the Guidelines range or for ineffective assistance/prosecutorial misconduct.
At the change-of-plea hearing the district court misstated the waiver, telling Melvin he retained the right to appeal based on a change in the law; Melvin affirmed that statement.
Melvin’s sentencing was delayed; by May 2011 he was sentenced as a career offender to 262 months (bottom of a 262–327 mo. Guideline range) under pre-Fair Sentencing Act (FSA) drug-quantity thresholds.
After Melvin’s sentencing, the Supreme Court decided Dorsey (2012), holding the FSA applies to defendants who committed offenses before but were sentenced after the FSA’s effective date.
The government moved to dismiss Melvin’s appeal based on his written waiver; the court held the district court’s misstatement before acceptance of the plea created an exception and denied the motion, vacating the sentence and remanding for resentencing under FSA thresholds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Melvin waived his right to appeal sentence after signing plea agreement	Melvin argued the district court’s in-court statement that he retained the right to appeal based on a change in law nullified the written waiver as to such claims	Government argued written waiver was clear and binding; defendant’s signature should bar appeal	Held: Waiver not knowing/voluntary as to appeals based on change-in-law exception because the court mischaracterized the waiver before accepting the plea; appeal permitted
Whether district court’s misstatement violated Fed. R. Crim. P. 11(b)(1)(N)	Melvin argued the court’s inaccurate description of waiver scope violated Rule 11 and was plain error	Government contended misstatement was immaterial because plea agreement unambiguous	Held: Misstatement constitutes plain error under Rule 11(b)(1)(N) that prevents finding a knowing, voluntary waiver
Whether an on-the-record confirmation of counsel’s explanation can cure Rule 11 error	Melvin noted he affirmed his attorney explained the plea; argued this insufficient when court misstated waiver	Government relied on precedents where defendant’s review with counsel sufficed	Held: When the court affirmatively misstates waiver scope before accepting plea, defendant’s prior confirmation is not a functional substitute to validate the waiver
Remedy when waiver invalid for a change-in-law claim (effect of Dorsey)	Melvin sought remand for resentencing under FSA thresholds per Dorsey	Government initially moved to dismiss; later conceded remand appropriate if waiver invalid	Held: Court denied dismissal, vacated sentence, remanded for resentencing consistent with FSA under Dorsey

Key Cases Cited

United States v. Carradine, 621 F.3d 575 (6th Cir. 2010) (held FSA did not apply retroactively to pre-enactment offenses sentenced before Dorsey)
Dorsey v. United States, 132 S. Ct. 2321 (2012) (Supreme Court held FSA applies to defendants who committed offenses before but were sentenced after the FSA effective date)
United States v. Murdock, 398 F.3d 491 (6th Cir. 2005) (discusses Rule 11(b)(1)(N) and functional-substitute concept for waiver advisals)
United States v. Wilson, 438 F.3d 672 (6th Cir. 2006) (valid plea-waiver enforcement when waiver knowingly and voluntarily made)
United States v. Robinson, 455 F.3d 602 (6th Cir. 2006) (prosecutor’s correct recitation of waiver can make waiver knowing and voluntary)
United States v. Saferstein, 673 F.3d 237 (3d Cir. 2012) (district court’s colloquy can create ambiguity that narrows a written waiver)
United States v. Padilla-Colon, 578 F.3d 23 (1st Cir. 2009) (court misstatement during colloquy can render waiver not knowing and voluntary)
United States v. Manigan, 592 F.3d 621 (4th Cir. 2010) (advice by district court contradicting plea agreement undermines knowing waiver)
United States v. Fleming, 239 F.3d 761 (6th Cir. 2001) (post-acceptance misstatements by court cannot reinstate waived appeal rights)