                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5023


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL RUFUS MELTON, a/k/a Head,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00941-RBH-11)


Submitted:   October 10, 2012             Decided:   November 5, 2012


Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


A. Jackson Barnes, ALLEN JACKSON BARNES ATTORNEY AT LAW LLC,
Sumter, South Carolina, for Appellant.   Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Michael        Rufus    Melton        pled    guilty    to     one    count       of

possessing with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2006), and was sentenced to sixty-six

months in prison.            In accordance with Anders v. California, 386

U.S. 738 (1967), Melton’s counsel filed a brief certifying that

there are no meritorious issues for appeal but questioning the

district      court’s        findings       regarding        the     quantity       of     drugs

attributable       to      Melton     for   sentencing           purposes,    the        court’s

failure to apply an additional one-level reduction to Melton’s

offense level for his acceptance of responsibility, and whether

Melton’s      prosecution            violated       double       jeopardy.           Although

notified      of     his     right     to   do      so,     Melton     did    not        file   a

supplemental pro se brief.

              On   review      of     the   record,         we   directed     supplemental

briefing addressing whether the Government breached the terms of

Melton’s plea agreement or abused its discretion by declining to

move for an additional one-level reduction in Melton’s offense

level   pursuant        to    U.S.    Sentencing          Guidelines    Manual       (“USSG”)

§ 3E1.1(b) (2010).            Conceding its breach of the plea agreement,

the Government has moved to vacate Melton’s sentence and remand

for resentencing.            Melton has joined in the Government’s motion,

and,    for    the      following       reasons,       we    grant     the    Government’s



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motion,     affirm      in    part,      vacate         in    part,        and     remand      for

resentencing.

            Looking first to Melton’s conviction, we conclude that

Melton’s parallel prosecution in state court for the conduct

supporting       this    federal        conviction           does     not        raise    double

jeopardy concerns.           See United States v. Alvarado, 440 F.3d 191,

196-97 (4th Cir. 2006) (explicating dual sovereignty doctrine).

We therefore affirm the conviction.

            We    do     agree       with    the    parties,         however,          that    the

Government breached Melton’s plea agreement in failing to move

for a reduction in Melton’s offense level for his acceptance of

responsibility under USSG § 3E1.1(b).                         Because Melton did not

claim such a breach in the district court, we review for plain

error.    Puckett v. United States, 556 U.S. 129, 133-34 (2009).

Accordingly,      Melton      must     show       not    only       that    the        Government

plainly   breached        his    plea       agreement,        but     also       that     he   was

prejudiced by the error and that “the breach was so obvious and

substantial that failure to notice and correct it affect[s] the

fairness,     integrity         or    public       reputation          of        the     judicial

proceedings.”        United States v. McQueen, 108 F.3d 64, 65-66 (4th

Cir. 1997) (internal quotation marks and alteration omitted);

see United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).

            Here, Melton’s plea agreement unambiguously obligated

the   Government        to   move     for    an    additional         reduction           in   his

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offense level under § 3E1.1(b) “if [Melton] qualifie[d] for a

decrease under [USSG] § 3E1.1(a),” and requested the district

court to consider the agreement as such a motion.                         Accordingly,

because the court granted Melton the benefit of § 3E1.1(a), we

find       that    the    Government     correctly     concedes    that    it   clearly

breached Melton’s plea agreement by refusing to move for the

§ 3E1.1(b)          reduction.         Cf.   Dawson,      587     F.3d    at    644-48.

Concluding         that    Melton’s    substantial      rights    were    affected    by

this breach, we find that he has established plain error and is

entitled to the resentencing he and the Government request.                          Id.

Such       resentencing      will   be    before   a   different     district     court

judge. *      Santobello v. New York, 404 U.S. 257, 263 (1971); see

Dawson, 587 F.3d at 648.

                  Although we vacate Melton’s sentence and remand for

resentencing, we conclude that judicial resources will be best

conserved if we address in this appeal counsel’s challenge to

the district court’s calculation of relevant conduct under USSG

§ 1B1.3.          We review for clear error the district court’s factual

findings for relevant conduct.                   United States v. Brooks, 524


       *
       We emphasize that our decision to direct resentencing
before a different judge is in no way a reflection on the able
district court judge who originally sentenced Melton; the error
here was the Government’s.     Nevertheless, consistent with our
precedent,   we  conclude   that   the  appearance  of   judicial
neutrality will be best served if the resentencing proceeding is
conducted by a judge without prior involvement in this matter.


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F.3d 549, 565 (4th Cir. 2008).                   Here, as Melton concedes, the

district court carefully evaluated drug quantity after taking

evidence     on    the    issue,      rejecting     the    highest       estimation    as

supported by less reliable evidence.                   We find no error in the

district court’s findings in this regard.                     See United States v.

Bell, 667 F.3d 431, 441 (4th Cir. 2011) (holding government must

establish     drug        quantity       under      preponderance         of     evidence

standard).        Therefore, on remand, the sentencing court need not

revisit its earlier findings as to relevant conduct, but is not

precluded from doing so, should it be so inclined.

             In accordance with Anders, we have reviewed the record

and   have   found       no   other     meritorious    issues      for    appeal.       We

therefore     affirm      Melton’s      conviction,        grant   the    Government’s

motion, vacate Melton’s sentence, and remand for resentencing

consistent with this opinion and before a different district

court judge.       This court requires that counsel inform Melton, in

writing,     of   his     right    to    petition    the    Supreme      Court    of   the

United States for further review.                    If Melton requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, counsel may move in this court for leave to

withdraw from representation.               Counsel’s motion must state that

a copy thereof was served on Melton.                        We dispense with oral

argument because the facts and legal contentions are adequately



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presented in the materials before the court and argument would

not aid the decisional process.

                                             AFFIRMED IN PART,
                                              VACATED IN PART,
                                                  AND REMANDED




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