UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4442

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

ANTOINE DEWAYNE MYLES, a/k/a Twan,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00172-BO-2)

Argued: January 29, 2020 Decided: March 11, 2020

Before AGEE, DIAZ, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ARGUED: Cindy Helene Popkin-Bradley, CINDY H. POPKIN-BRADLEY, ATTORNEY AT LAW, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Antoine Myles was sentenced to life imprisonment after being convicted by a jury

of five counts arising from his role in a drug-trafficking organization that he and his brother

formed in 2004. He raises a number of issues on appeal, including a claim that the district

court deprived him of due process by making comments on the morning of jury selection

that amounted to “presentencing” him to life imprisonment. As part of this claim, Myles

suggests that the district court also failed to adequately explain his reasons for imposing

the life sentence that it ultimately imposed during the sentencing hearing. Agreeing that

Myles’s life sentence is procedurally unreasonable, we vacate his sentence and remand for

resentencing, while affirming his conviction. 1

I.

The Drug-Trafficking Organization (“DTO”) that Myles ran with his brother in

Godwin, North Carolina was detected by the Narcotics Unit of the Cumberland County

Sheriff’s Office. Using surveillance techniques, including wire taps and pen registers,

investigators determined that Myles “became involved in the DTO after he was released

from the Bureau of Prisons on April 1, 2008,” and that he “took over as the primary person

1 In addition to the sentencing claims, Myles raises three trial errors on appeal: that the district court conducted inadequate voir dire, deprived him of his right to represent himself at trial, and erred in denying his motions to suppress the evidence obtained by means of the government’s wire taps and pen registers. Based on our careful review of these issues and the record, we find no reversible trial error.

2 responsible for supplying [cocaine base] to the [DTO’s] trap house” by at least April 1,

2011, 2 when Myles was released from another period of incarceration. S.J.A. 1229–30.

Into the year 2015, the trap house was operated “24 hours a day, 365 days a year”

by multiple shift workers who put in “9 to 12-hour shifts an average of five days per week”

selling cocaine and cocaine base. S.J.A. 1230. In all, investigators estimated that Myles

was responsible for distributing at least 43.6 kilograms of cocaine base and 504.6 grams of

cocaine, in addition to 46.83 grams of marijuana. They also discovered that Myles and his

brother “attempted to conceal the source of [their] illegally obtained proceeds by placing

assets in other individuals’ names, depositing the proceeds in business accounts,

purchasing land and vehicles, and concealing deposits to personal accounts by providing

false employment information.” S.J.A. 1233.

Myles was arrested on June 5, 2015, pursuant to an indictment naming 19

coconspirators and alleging 39 counts. He was later charged by second superseding

indictment, as the sole remaining defendant, with five counts: conspiracy to distribute and

possess with intent to distribute 280 grams or more of cocaine and five kilograms or more

of cocaine base, in violation of

(a)(1) and 846; two counts of possessing

cocaine with intent to distribute it, in violation of

(a)(1); conspiracy to

engage in money laundering by concealment, in violation of

(a)(1)(A)(i)

2 A “trap house” is a term commonly used by narcotic traffickers and narcotic users to refer to a house used for the sole purpose of distributing cocaine and cocaine base. See United States v. Bush,

, 193 n.7 (4th Cir. 2019).

3 and 1956(h); and engaging in monetary transactions with unlawfully obtained currency, in

violation of

. Myles proceeded to a jury trial; was convicted on all counts;

and was sentenced to a guidelines sentence of life imprisonment.

Two episodes from Myles’s proceedings in the district court stand out for purposes

of this appeal. The first occurred at the beginning of jury selection, which took place on

the morning of the first day of trial. After defense counsel asked the court to excuse the

jury venire, the following colloquy ensued:

The Court: Okay. The jury is out of the courtroom. [Probation Officer], if you know, what is the maximum sentence I can give if [Myles] gets convicted of everything?

[Probation Officer]: Life in prison.

The Court: Okay. Life in prison. [Defense Counsel], what did you want to tell me. I let the jury go out at your request.

[Defense Counsel]: Thank you. Thank you, Your Honor.

The Court: How old is your client?

....

[Defense Counsel]: Forty-two (42).

The Court: Forty-two (42). Okay. So he’s looking at spending the rest of his natural life in federal prison?

[Defense Counsel]: That’s correct, Your Honor.

The Court: Has he been in lockup now for four or five years?

[Defense Counsel]: Three, I believe.

The Court: Three years. Well, that’s probably going to happen. So what do you want to know between now and that?

4 J.A. 1134–35. Defense counsel ultimately didn’t want to know much of anything; the

parties proceeded to select a jury; and the trial began that afternoon.

The second episode occurred at Myles’s brief sentencing hearing, which took place

about two-and-a-half months after the trial. Myles represented himself at sentencing, and

spoke in allocution by objecting to several enhancements identified in the presentence

report for drug weight and obstruction of justice (i.e., perjury). After the government had

argued in favor of the enhancements and a corresponding guidelines sentence of life

imprisonment, the district court said the following:

I’ll deny all these objections. [Myles] testified, he was untruthful, he perjured himself, he tried to avoid facing the facts that were clearly established. And the government’s position regarding the drug weight is well supported by the evidence in this case. Under all of these circumstances, the guideline range is 43, Category IV. I’ll sentence the defendant to the guideline of life in the custody of the United States Bureau of Prisons . . . . [Myles] can appeal the sentence and . . . . the verdict of the jury to the court of appeals under the rules provided in the Rules of Federal Appellant [sic] Procedure and Criminal Law.

J.A. 1117. Together, these bookends to Myles’s jury trial form the basis of the sentencing

issues to which we now turn.

II.

Myles’s opening brief alleges a due process claim that the district court deprived

him of a fair sentencing hearing by committing to a life sentence during the colloquy that

took place before jury selection. As part of this claim, Myles devotes a paragraph to

asserting that the court’s failure to explain the life sentence it ultimately imposed reflected

that the court had already fixed on that sentence before the trial even began.

5 Though Myles’s brief doesn’t assert that the court’s failure to explain his sentence

rendered it procedurally unreasonable, his suggestion readily placed this issue on our

radar—as well as, evidently, the government’s, which made sure to assert in its brief that

Myles had abandoned it. Mindful of our discretion to reach matters of great importance,

however, we asked the parties to file supplemental briefs on whether the life sentence

imposed in this case is procedurally reasonable and whether we have any basis for reaching

the issue. Because (as we explain) we answer both questions in the affirmative, we decline

to reach Myles’s due process claim.

A.

We first conclude that, even assuming Myles abandoned the issue of procedural

reasonableness by taking only “a passing shot” at it in his opening brief, see Grayson O

Co. v. Agadir Int’l LLC,

(4th Cir. 2017), 3 we should exercise our

discretion to reach the issue. As we have often recognized, the rules of abandonment “are

not jurisdictional in the sense that they encroach in any fashion upon our inherent authority

to consider and decide pertinent matters.” United States v. Holness,

(4th

Cir. 2013). We thus “possess the discretion under appropriate circumstances to disregard

the parties’ inattention to a particular argument or issue.” Id.; see also Manning v. Caldwell

for City of Roanoke,

(4th Cir. 2019) (“[T]he matter of what questions

may be taken up and resolved for the first time on appeal is one left primarily to the

3 We omit internal quotation marks and citations, and adopt alterations, here and throughout this opinion, unless otherwise noted.

6 discretion of the courts of appeals, to be exercised on the facts of individual cases.”

(quoting Singleton v. Wulff,

(1976))).

As we stated in Manning, exercising our discretion to reach an abandoned issue is

warranted where three criteria are satisfied: (1) the record provides an adequate basis to

consider the issue, (2) neither party is prejudiced by such consideration, and (3) the issue

is one of “‘exceptional importance.’” See 930 F.3d at 271–72 (quoting United States v.

Simms,

(4th Cir. 2019) (“[W]e opt to proceed to the merits in view of

the exceptional importance and recurring nature of the question presented.”)). Manning

synthesized these criteria from previous cases, which sometimes phrased our ability to

exercise such discretion in terms of avoiding “a miscarriage of justice.” See, e.g., A

Helping Hand, LLC v. Baltimore Cty., Md.,

(4th Cir. 2008); see also

Villatoro v. Sessions,

(4th Cir. 2017).

These criteria are satisfied in this instance. First, the record enables us to determine

whether the sentence is procedurally reasonable, which issue turns entirely on the transcript

of the sentencing hearing, and even on the single page containing the district court’s

explanation. Second, the government wouldn’t be prejudiced by our doing so because it

had the opportunity to address the issue in supplemental briefing and at oral argument. See,

e.g., United States v. Ramos-Cruz,

, 497 n.5 (4th Cir. 2012) (“Inclusion of this

argument during supplemental briefing . . . fulfilled the important goal of putting the

government on notice as to the substance of Ramos-Cruz’s argument.”). And while the

government asserts that it would have briefed the issue differently had it been raised in

Myles’s opening brief, we fail to see how a response brief would have furnished the

7 government a more meaningful opportunity to make its case than did the supplemental

briefing—since, as noted, the issue of procedural reasonableness turns largely on a single

page of the record. 4

Finally, we think the reasonableness of Myles’s life sentence sufficiently important

to warrant exercising our discretion to reach it. Though this issue may not affect the public

at large in the same way as did the issues in Manning and Simms, we have frequently

exercised our discretion to reach issues whose exceptional importance was confined largely

to the parties before us. See, e.g., Villatoro,

(reaching the Board of

Immigration Appeals’ particular social group determination with respect to an individual

petitioner); Holness, 706 F.3d at 591–93 (reaching a Miranda issue with respect to an

individual defendant); Ramos-Cruz, 667 F.3d at 494–97 (reaching a jury instruction issue

with respect to an individual defendant). Further, albeit under somewhat different

circumstances, we recently addressed the procedural reasonableness of a sentence in spite

of the government’s abandonment of the issue at every stage of the appeal. See United

States v. Provance,

(4th Cir. 2019). We think these cases support the

view that the reasonableness of a sentence that would put the defendant in prison for the

remainder of his life is too important to be abandoned where the record readily allows us

to resolve the issue and where no party would be prejudiced thereby.

4 This observation belies the government’s assertion that the circumstances of Myles’s jury trial could, with the additional time and pages afforded by a response brief, be shown to provide sufficient “clues that might explain [the chosen] sentence.” See United States v. Carter,

(4th Cir. 2009).

8 B.

We turn now to the proper standard under which to review the procedural

reasonableness of the life sentence imposed by the district court. We agree with both

parties that the standard in this case is plain error.

The applicable standard of review is governed by our decision in United States v.

Lynn, which held that “the rigorous plain-error standard applies to unpreserved claims of

procedural sentencing error.”

(4th Cir. 2010). In particular, Lynn

teaches that a defendant preserves a claim of inadequate explanation by “drawing

arguments from [18 U.S.C.] § 3553 for a sentence different than the one ultimately

imposed.” Id. at 578 (citing United States v. Grier,

, 571 n.11 (3d Cir. 2007)

(en banc) (“An objection to [an inadequate explanation] will be preserved if, during

sentencing proceedings, the defendant properly raised a meritorious or factual legal issue

relating to one or more of the factors enumerated in

(a).”)).

Like the defendant in Lynn, Myles (as he conceded during oral argument) “failed to

preserve his objection in the district court to that court’s . . . explanation for the sentence

imposed” because he neglected to “ask the court to depart from the correctly calculated

Guidelines range based on consideration of the relevant § 3553 factors.” See

. That is, while Myles did assert (without much of a basis) that the evidence was

insufficient to support several enhancements that figured into the presentence report’s

calculation of the guidelines range, he didn’t argue for a sentence below the correctly

calculated guidelines range—or even below the sentence he ultimately received—based on

any of the § 3553(a) factors. We must therefore review his claim for plain error. See id.

9 To establish plain error, Myles bears the burden of showing “(1) that the court erred,

(2) that the error is clear and obvious, and (3) that the error affected his substantial rights,

meaning that it ‘affected the outcome of the district court proceedings.’” See United States

v. Catone,

(4th Cir. 2014) (quoting United States v. Olano,

, 732–34 (1993)). “Even when this burden is met, we retain discretion whether to

recognize the error and will deny relief unless the district court’s error ‘seriously affects

the fairness, integrity or public reputation of judicial proceedings.’”

(quoting Olano,

).

C.

Turning finally to the merits, we conclude that the district court plainly erred in

failing to articulate any reason for imposing a life sentence—even if such was

recommended by the guidelines—in this particular case.

For starters, the district court’s failure to say anything about its chosen sentence was

a clear and obvious error under the first two prongs of plain-error review. The Supreme

Court held years ago that, even where a judge elects to impose a guidelines sentence, he

must provide “a statement of reasons” explaining at a minimum that he “rests his decision

upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence

(in terms of § 3553(a) and other congressional mandates) in the typical case, and that the

judge has found that the case before him is typical.” Rita v. United States,

(2007); see also Gall v. United States,

, 49–50 (2007) (“[A]fter giving both

parties an opportunity to argue for whatever sentence they deem appropriate, the district

judge should then consider all of the § 3553(a) factors to determine whether they support

10 the sentence requested by a party. In so doing, he may not presume that the Guidelines

range is reasonable . . . . He must make an individualized assessment based on the facts

presented.”). Our case law has frequently reiterated these minimal standards. See, e.g.,

Provance,

(“When rendering a sentence, the district court must make an

individualized assessment based on the facts presented and must state in open court the

particular reasons supporting its chosen sentence.”); accord, e.g., United States v. Blue,

, 518–19 (4th Cir. 2017); Lynn,

; Carter,

.

Here, the district court clearly and obviously failed to satisfy these requirements.

Just as in Provance (a case involving this same district court), the court here failed not only

“to explain how the § 3553(a) factors support the [chosen] sentence,” but to provide “any

rational explanation for this sentence” whatsoever. See 944 F.3d at 219. Instead, the court

merely declared that it would “sentence the defendant to the guideline of life in the custody

of the United States Bureau of Prisons,” without a further word. See J.A. 1117. The court’s

total failure to support this sentence by reference to the § 3553(a) factors or to an

individualized assessment of the particular facts at bar was manifestly deficient.

Moreover, the government’s attempt to construe the court’s explanation as

something more is unavailing. While the court did state that Myles “was untruthful,” that

he “tried to avoid facing the facts that were clearly established,” and that “the government’s

position regarding the drug weight” was “well supported by the evidence” before

pronouncing the sentence, these comments spoke only to the court’s decision to reject

Myles’s objections to the sentencing enhancements. See J.A. 1117. Unlike in Rita,

11 however, the court said nothing to explain why the correctly calculated guidelines sentence

was appropriate in this particular case.

Though the third prong of plain-error review presents a closer call, we are also

satisfied that the district court’s failure to explain the sentence affected Myles’s substantial

rights, i.e., that it “had a prejudicial effect on the sentence imposed.” See Lynn,

. True, much as in Lynn, Myles’s “arguments before the district court” did not urge

the court to impose anything other than a correctly calculated guidelines sentence. See

Nor did Myles make an argument before this court for a less-than-guidelines sentence of

life imprisonment. Nonetheless, we find the circumstances of this case sufficiently

different from those of Lynn in view of the troubling sentencing-related comments that the

district court made on the morning of jury selection and trial.

Recall that the district court began the proceedings by asking the government about

the “maximum sentence” that it could “give” Myles “if he gets convicted of everything.”

J.A. 1134. While the court had every right to know this information, it had no business

suggesting that Myles would “probably” spend “the rest of his natural life in federal

prison,” pursuant to that sentence, before asking defense counsel what she wanted to know

“between now and that.” See J.A. 1134–35.

That said, we think it doubtful that these comments make out a due process

violation. Unlike in United States v. Dunlap—in which we vacated a sentence where this

same district court not only “asked the probation officer to identify the maximum possible

sentence,” but added, “Okay . . . . I’ll do it” before the defendant’s opportunity to allocute,

12 see

(4th Cir. 2016)—in this case the court didn’t expressly commit

to imposing a life sentence before the end of the sentencing proceeding.

Nonetheless, we are satisfied that the district court’s “injudicious” pretrial

remarks 5—when considered in combination with the court’s abject failure to explain its

decision to impose the very sentence to which the remarks improperly alluded—violated

Myles’s substantial rights in these unique circumstances. Here, the district court did not

simply impose a life sentence without explanation—it did so against a backdrop of

comments suggesting its inclination (if not firm commitment) to impose such a sentence

before the trial even began. This backdrop takes the instant case well beyond the complete

absence of prejudice we found in Lynn, for it raises the concern that the court’s failure of

explanation reflected an overly facile application of a sentence it had been contemplating

for months.

For similar reasons, we have “little doubt that this is the kind of case in which our

limited discretion under Rule 52(b) is appropriately exercised so as to preserve the fairness,

integrity and reputation of the judicial process.” See United States v. David,

(4th Cir. 1996). On this record, the integrity and reputation of the judicial process

requires the district court to articulate some reason for its chosen sentence, not simply in

light of the severity of the sentence, but also to dispel the perception from its gratuitous

comments on the morning of trial that it had long ago made up its mind. Accordingly, just

5 See United States v. Richardson, __ F. App’x __,

, at *2–3 (4th Cir. Dec. 12, 2019) (discussing similarly injudicious remarks by the same district court).

13 as we exercise our discretion to reach the issue of procedural reasonableness in the first

place, so too do we exercise our discretion to recognize the district court’s plain error in

failing to explain its chosen sentence of life imprisonment.

III.

For the reasons given, we affirm Myles’s conviction, but vacate his sentence and

remand to the district court for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

14