USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 1 of 13
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4618
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GILBERT DEVON MELVIN, a/k/a G-Boy,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:98-CR-00037-BO-14)
Argued: May 7, 2024 Decided: June 26, 2024
Before NIEMEYER and THACKER, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and Judge Thacker joined.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Charles Edward Loeser, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 2 of 13
DIANA GRIBBON MOTZ, Senior Circuit Judge:
In March 2021, following more than 20 years of incarceration, Gilbert Devon
Melvin was released from federal prison and began a five-year term of supervised release.
In August 2023, Melvin’s mental health deteriorated, and he was arrested for trespassing.
At the revocation hearing that followed, the district court initially agreed to terminate
Melvin’s supervised release and enter a time-served sentence. But before the hearing
concluded, Melvin engaged in what the court viewed as “one of the worst outbursts [it had]
ever seen in an open courtroom.” J.A. 97.1 The district court immediately concluded that
Melvin’s outburst indicated he posed a danger to the public and to his probation officers.
Accordingly, the court withdrew its initial agreement to a time-served sentence and instead
elected to maintain Melvin’s supervised release with an additional mental health condition.
On appeal, Melvin contends that the district court lacked authority to withdraw or modify
the time-served sentence it had initially agreed to impose. See 18 U.S.C. § 3582(c). For
the reasons that follow, we disagree, and so affirm.
I.
In 1998, a jury convicted Gilbert Melvin of three drug and firearm offenses relating
to his involvement in a lengthy drug distribution conspiracy that implicated 19 other co-
defendants. The district court sentenced Melvin to life plus 300 months’ imprisonment,
followed by a five-year term of supervised release. Melvin remained incarcerated for the
1 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal. 2 USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 3 of 13
next 21 years. But, in July 2020, the district court granted Melvin’s motion for sentence
reduction under the First Step Act,2 and resentenced him to 306 months.
In March 2021, Melvin was released from prison. He began his five-year supervised
release term in Fayetteville, North Carolina, where he received an apartment, a stipend,
and psychiatric services. For roughly two and a half years, he remained on supervised
release without incident or infraction.
In August 2023, Melvin suffered a lapse in his medication, and began to experience
worsening psychiatric symptoms, including clinical paranoia and panic attacks. On August
16, a probation officer moved to revoke Melvin’s supervised release, alleging Melvin had
committed misdemeanor larceny in Fayetteville four days earlier. (Melvin asserts that he
“believed he would be safer in jail,” and sought to provoke his own arrest. Def.’s Br. 3.)
The district court issued an arrest warrant, and on August 22, the United States Marshals
arrested Melvin and transported him to Raleigh. But state prosecutors dropped the larceny
charge, and the district court recalled the warrant the following day.
Melvin claims the Marshals released him in Raleigh — and provided no way for
him to return to Fayetteville, and no access to his psychiatric medication. Five days later,
on August 28, 2023, Melvin contacted his probation officer and stated that “he did not want
to be under supervision any longer and wished to address the matter with the Court.”
J.A.88. That same day, Melvin was cited for misdemeanor trespassing after refusing to
leave a bus station in Raleigh. The probation officer again moved to revoke Melvin’s
The district judge who granted Melvin’s First Step Act motion presided over all 2
subsequent matters in Melvin’s case. 3 USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 4 of 13
supervised release, and Melvin was arrested the following day. Melvin remained in federal
custody for a month, and claims he received no psychiatric medication during this time.
On September 28, 2023, the district court held a revocation hearing. All parties
involved — the Government, the probation officer, and Melvin — recommended
terminating supervision and issuing a time-served sentence. The court initially stated that
it would agree to this proposal. But moments later, Melvin asked to address the court,
which the court allowed him to do, and for five minutes, Melvin engaged in what he calls
a “stream-of-consciousness outburst.” Repl. Br. 9–10. During this outburst, Melvin
claimed that the probation officers were “trying to silence [his] voice by giving [him] this
plea.” J.A. 92. He accused those same officers of taking away his home, his job, and his
property, interfering with his psychiatric treatment, and stranding him in another city with
no means to return home. He also asserted that he hoped the officers would be “called on”
for what they had done. J.A. 95.
When Melvin concluded his statement, the judge stated that he would “withdraw
[his] previous rulings.” J.A. 95. Concluding that Melvin was “a danger to the law and to
law enforcement and to the probation [officers],” the court remanded Melvin into custody,
and ordered a recess until the afternoon. J.A. 95–97. Five hours later, that same afternoon,
the hearing resumed. The court first proposed a prison sentence of several months, but the
prosecutor explained that Melvin was experiencing profound mental health issues, and
suggested that treatment would be more effective than incarceration. Following brief
argument, the court agreed to maintain Melvin’s supervised release, but added a condition
requiring him to follow a mental health treatment program, and ordered him committed to
4 USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 5 of 13
a psychiatric hospital. The hearing ended, and the court issued a written order
memorializing Melvin’s sentence that same day.
The following day, the district court held a status conference with the prosecutor
and Melvin’s attorney. Melvin’s attorney confirmed that Melvin had been committed to
Holly Hill Psychiatric Hospital for a three-day involuntary hold followed by voluntary
inpatient treatment, and long-term outpatient care. The court offered to “leave the
supervised release as is . . . and see if he can perform adequately in the future.” J.A. 112–
13. The parties agreed, and the conference concluded.
Melvin filed his notice of appeal four days later, on October 3, 2023.
II.
Melvin argues that the district court was bound to sentence him in accordance with
its initial announcement that it would “agree to . . . time served and the termination of his
supervision.” J.A. 91. Melvin maintains that a sentence becomes final and binding the
moment it is announced in open court — and that the court had no authority to withdraw
the time-served sentence it had initially accepted before Melvin’s outburst.
A.
Federal law places paramount importance on the finality of criminal proceedings,
and permits courts to modify sentences only in limited circumstances. Pursuant to
18 U.S.C. § 3582, a court generally may not modify a sentence “once it has been imposed.”
18 U.S.C. § 3582(c). As a narrow exception, Section 3582 permits the sentencing court to
adjust a sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. See
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18 U.S.C. § 3582(c)(1)(B). That rule allows the court to “correct a sentence that resulted
from arithmetical, technical or other clear error” within “14 days after sentencing.” Fed.
R. Crim. P. 35(a).3 But Rule 35(a) does not authorize the court “to reconsider the
application or interpretation of the sentencing guidelines or . . . simply to change its mind
about the appropriateness of the sentence.” United States v. Layman, 116 F.3d 105, 108
(4th Cir. 1997) (cleaned up). Thus, “[w]hen the district court unequivocally states a
sentence and then imposes it, and the sentence is not the product of error, the district court
has no authority to alter that sentence.” United States v. Fields, 552 F.3d 401, 405 (4th Cir.
2009) (quoting United States v. Fraley, 988 F.2d 4, 7 (4th Cir. 1993)) (emphasis added).
The parties dispute when a sentence is considered “imposed,” restricting the court’s
authority to modify or withdraw it.4 At minimum, we have held that courts cannot modify
a sentence after the sentencing hearing has concluded unless Rule 35, or another exception,
applies. See, e.g., id. at 403, 405 (court reconsidered sentence four days later); Fraley, 988
F.2d at 5 (court altered sentence several months later); United States v. Williams, 664 F.
3 Rule 35(b) permits the court to adjust a sentence at a later date if the defendant renders substantial assistance in the investigation or prosecution of another person. Fed. R. Crim. P. 35(b). No party argues that this provision applies here. 4 The parties discuss this issue in jurisdictional terms, but it is not clear that Section 3582 is a jurisdictional rule. After all, “Section 3582(c) . . . neither speaks in jurisdictional terms nor refers in any way to the jurisdiction of the courts.” United States v. Muhammad, 16 F.4th 126, 129–30 (4th Cir. 2021) (cleaned up); accord United States v. May, 855 F.3d 271, 275 (4th Cir. 2017) (observing that Congress must “‘clearly state[] that a threshold limitation on a statute’s scope shall count as jurisdictional’ before a court can treat the limitation as such” (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006) (alteration in original)). But we need not resolve that question today. For present purposes, it suffices to note that Section 3582 prohibits courts from modifying a previously imposed sentence, with only narrow exceptions not applicable here. 6 USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 7 of 13
App’x 316, 320 (4th Cir. 2016) (per curiam) (court modified sentence “six days later”).
After all, defendants, courts, and the public have a strong interest in the transparency and
finality of criminal proceedings. See Fields, 552 F.3d at 405. Permitting a sentencing court
to simply “change its mind” days, weeks, or months after a sentence is imposed and the
sentencing hearing has ended would thwart those expectations. Layman, 116 F.3d at 108–
09; United States v. Cook, 890 F.2d 672, 674–65 (4th Cir. 1989).
But “we have not precisely defined when a sentence is orally imposed during a
sentencing hearing.” United States v. Covington, 65 F.4th 726, 731 (4th Cir. 2023)
(emphasis added). Our sister circuits have embraced a pragmatic rule, holding that
Section 3582(c) does not “deprive the district court of [authority] to alter a sentence during
the course of the same hearing.” See United States v. Ochoa, 809 F.3d 453, 458 (9th Cir.
2015). Under this approach, a sentence announced in open court is not “imposed” until
there has been a “formal break in the proceedings from which to logically and reasonably
conclude that sentencing [has] finished.” Id. (quoting United States v. Gerezano-Rosales,
692 F.3d 393, 397 (5th Cir. 2012)); accord United States v. Luna-Acosta, 715 F.3d 860,
865 (10th Cir. 2013); United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).
This approach aligns with our caselaw. Because “sentencing is a fluid and dynamic
process,” we have hesitated to bind courts to statements made before a sentencing hearing
has concluded. See Covington, 65 F.4th at 731 (cleaned up); United States v. Engle, 676
F.3d 405, 424 (4th Cir. 2012). For example, in both Covington and Engle, appellants
argued that the sentencing court had prematurely imposed a sentence before fulfilling
Rule 32’s pre-sentencing requirements. Covington, 65 F.4th at 729 (court stated sentence
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before defense counsel spoke); Engle, 676 F.3d at 424–25 (court stated sentence before
defendant’s allocution). In both cases, we held that the district court’s initial statements
and projections were merely tentative, and did not “impose” a binding sentence. See
Covington, 65 F.4th at 731; Engle, 676 F.3d at 425. And in so holding, we reasoned that
“we will generally assume a judge’s discussion of the appropriate term of imprisonment
during the sentencing hearing is tentative, not a final imposition of the sentence,”
particularly when the defendant and his attorney have not been afforded an opportunity to
speak. See Covington, 65 F.4th at 632 (quoting Engle, 676 F.3d at 425).
Of course, the line between a preliminary and final sentence “remains somewhat
murky.” See Covington, 65 F.4th at 732. But triggering Section 3582’s limitations during
an ongoing sentencing hearing — the instant the judge articulates a possible sentence —
would “strip district courts of flexibility to respond to evolving circumstances during
sentencing hearings.” Ochoa, 809 F.3d at 458; accord Meza, 620 F.3d at 508 (rejecting
rule that would “instantaneously strip[] the district court of its [authority] to sentence
criminal defendants”). We note that such circumstances are quite common. Lawyers often
object moments after a sentence is initially announced — disputing the advisory guidelines
calculation, the weight of various sentencing factors, the application of an enhancement,
or other issues that may arise. Prohibiting the sentencing court from responding to such
objections would needlessly multiply proceedings. Conversely, treating a sentence as
tentative until sentencing has concluded “provides the district court with an opportunity to
correct [any potential] errors before, and perhaps in lieu of, appellate review.” Luna-
Acosta, 715 F.3d at 866.
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Equally important, the defendant’s behavior after the initial announcement of the
sentence can reveal new information highly relevant to the 18 U.S.C. § 3553 sentencing
factors. For this reason, our sister circuits have permitted courts to adjust a sentence in
response to the defendant’s statements or conduct before the sentencing hearing has
concluded. E.g., Gerezano-Rosales, 692 F.3d at 396 (defendant revealed for the first time
that he could speak English, and took actions that “caused the court to question the veracity
of some of [his] mitigating statements”); United States v. Burgos-Andujar, 275 F.3d 23, 27
(1st Cir. 2001) (defendant made remarks indicating “a lack of remorse, an attempt to avoid
responsibility for her actions, and even a likelihood of repeating her illegal actions”);
Ochoa, 809 F.3d at 456 (defendant laughed after being “lectured . . . about respect for the
system”).
This case is no different. Immediately after the district judge indicated that he would
agree to a time-served sentence, Melvin engaged in a five-minute diatribe that he himself
describes as a “stream-of-consciousness outburst” and an “emotional word salad.” Repl.
Br. 9–10. The court regarded that statement as “one of the worst outbursts [it had] ever
seen in an open courtroom,” leading it to believe that Melvin was “a danger to the law and
to law enforcement.” J.A. 96–97.5 These concerns are highly relevant to the 18 U.S.C.
§ 3553(a) sentencing factors, which direct sentencing courts to consider “the history and
5 Given the “difficulty in assessing tone and demeanor from a cold transcript” — and Melvin’s description of his own conduct on appeal — we accept the district court’s characterization of Melvin’s statements. See Gerezano-Rosales, 692 F.3d at 400; accord United States v. Murray, 65 F.3d 1161, 1165–66 (4th Cir. 1995); United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989) (observing that the district court “is in a unique position” to assess a defendant’s demeanor at sentencing). 9 USCA4 Appeal: 23-4618 Doc: 35 Filed: 06/26/2024 Pg: 10 of 13
characteristics of the defendant”; the need “to protect the public”; and the need “to provide
the defendant with . . . medical care.” Prohibiting the district court from considering these
issues would undermine the mandate that sentencing courts should consider “the fullest
information possible concerning the defendant’s life and characteristics” in fashioning a
sentence. See Concepcion v. United States, 597 U.S. 481, 493 (2022) (cleaned up); Pepper
v. United States, 562 U.S. 476, 488 (2011) (“Permitting sentencing courts to consider the
widest possible breadth of information about a defendant ensures that the punishment will
suit not merely the offense but the individual defendant.” (cleaned up)).
Accordingly, we join our sister circuits in holding that 18 U.S.C. § 3582 does not
“deprive the district court of [authority] to alter a sentence during the course of the same
[sentencing] hearing.” See Ochoa, 809 F.3d at 458. Rather, a sentence becomes final and
binding for Section 3582 purposes only once (1) it has been “unequivocally state[d]” in
open court, Fields, 552 F.3d at 405 (cleaned up); and (2) there has been a “formal break in
the proceedings from which to logically and reasonably conclude that sentencing had
finished,” Luna-Acosta, 715 F.3d at 865 (quoting Meza, 620 F.3d at 509).
Melvin maintains that Rule 35 of the Federal Rules of Criminal Procedure compels
us to hold that a sentence is imposed the moment it is uttered. His argument relies on
Rule 35(c), which defines “sentencing” to mean “the oral announcement of the sentence.”
See Fed. R. Crim. P. 35(c). But no part of Rule 35 defines when a sentence is imposed —
nor prohibits district courts from adjusting a sentence during an ongoing sentencing
hearing, as the court did here.
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The bar against modifying a final sentence derives from 18 U.S.C. § 3582, not from
Rule 35 of the Federal Rules of Criminal Procedure. Section 3582 generally prohibits
district courts from modifying a sentence “once it has been imposed.” 18 U.S.C. § 3582(c).
As an exception to that general principle, the statute permits courts to modify sentences in
the limited circumstances provided by Rule 35. Id. § 3582(c)(1)(B). And, as relevant here,
Rule 35(a) creates a brief window for the district court to make technical or arithmetical
corrections “[w]ithin 14 days after sentencing.” Fed. R. Crim. P. 35(a). By defining the
term “sentencing,” Rule 35(c) merely clarifies that the time period to correct a sentence
begins on the date the sentence is orally announced in court, rather than the date it is
memorialized in a written judgment. See Fed. R. Crim. P. 35(c). Nowhere does Rule 35
define when a sentence is “imposed” for Section 3582 purposes — much less mandate that
a sentence is imposed the moment it is uttered.
The history of Rule 35 confirms as much. Before 2004, Rule 35 stated that district
courts may correct a sentence “within 7 days after the imposition of sentence.” See Fed.
R. Crim. P. 35(c) (2000). But the rule did not explain “whether ‘imposition of sentence’
refers to the time of oral pronouncement of the sentence, or the entry of written judgment.”
United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir. 2000). The circuits were divided,
with a sizable majority holding that Rule 35 refers to the sentencing hearing, and a minority
holding that the clock starts only when written judgment is entered. Id. (collecting cases).
To resolve this split, the Advisory Committee amended Rule 35 in 2004 — replacing the
term “imposition of sentence” with “sentencing,” and adding Rule 35(c), “which defines
sentencing for purposes of Rule 35 as the oral announcement of the sentence.” See Fed. R.
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Crim. P. 35 advisory committee’s note to 2004 amendments. These revisions confirm that
Rule 35(a) does not define when a sentence is “imposed” for Section 3582(c) purposes —
and that Rule 35(c) merely clarifies the date on which the 14-day window for technical and
arithmetical corrections opens.
B.
In sum, a sentence is not imposed until it has been unequivocally pronounced during
the sentencing hearing, and there has been a “formal break in the proceedings from which
to logically and reasonably conclude that sentencing had finished.” Luna-Acosta, 715 F.3d
at 865 (cleaned up); Fields, 552 F.3d at 405. Applying this rule, we hold that the district
court’s initial acceptance of a time-served sentence was tentative — and that the court had
authority to modify that sentence when Melvin addressed the bench only moments later,
during the course of the same sentencing hearing.
It is clear from the record that there was no formal break between the court’s initial
announcement of the sentence and its retraction. The district court’s withdrawal occurred
in “the same hearing, on the same day, within moments of the original pronouncement.”
Cf. Meza, 620 F.3d at 508. Two minutes after the hearing began, and following a short
colloquy with the parties, the court confirmed that it would “agree to . . . time served and
the termination of [Melvin’s] supervision.” J.A. 91. Only moments later, Melvin sought
permission to address the court, and the court allowed him to speak. He delivered what he
himself describes as a “stream-of-consciousness outburst” and an “emotional word salad,”
Repl. Br. 9–10, prompting the district court to find him a danger to the public, “withdraw
[its] previous rulings,” J.A. 95, and ultimately impose Melvin’s original supervised release
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term, with an additional mental health condition. This “unbroken sequence of actions”
indicates that the initial sentence, Melvin’s statement, and the court’s retraction were all
part of a single, continuous sentencing hearing. Cf. Meza, 620 F.3d at 508. Because we
could not “logically and reasonably conclude that sentencing had finished” before Melvin’s
outburst, Luna-Acosta, 715 F.3d at 865 (cleaned up), the district court did not violate
Section 3582 by retracting its initial agreement to a time-served sentence.6
III.
For the reasons set forth above, the district court’s judgment is
AFFIRMED.
6 Moreover, we note that “when a judge announces a sentence before hearing an allocution, it is fair to assume that such a sentence is tentative.” Engle, 676 F.3d at 425 (quoting Burgos-Andujar, 275 F.3d at 30) (cleaned up). That is because the Federal Rules of Criminal Procedure require sentencing courts to grant defendants an opportunity to make a statement before a sentence is imposed. See Fed. R. Crim. P. 32(i)(4)(ii); Fed. R. Crim. P. 32.1(b)(2)(E). Here, the court stated that it would agree to a time-served sentence and termination of supervised release only minutes into the hearing, and before hearing any allocution. These facts further indicate that sentencing had not finished, and that the court retained authority to retract its preliminary agreement to a time-served sentence. 13