United States of America v.  ANTONIO ALFREDO MARTINEZ- MELGAR, a/k/a Alfredo Antonio Martinez-Melgar

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-4569  ANTONIO ALFREDO MARTINEZ-
MELGAR, a/k/a Alfredo Antonio
Martinez-Melgar,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:06-cr-00449-FDW-1)
Argued: December 4, 2009
Decided: January 20, 2010
Before SHEDD and DUNCAN, Circuit Judges,
and T. S. ELLIS, III, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Senior Judge
Ellis wrote the opinion, in which Judge Shedd and Judge
Duncan joined.
COUNSEL
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North

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Carolina, for Appellant. Mark Andrew Jones, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
ELLIS, Senior District Judge:
Appellant, convicted on charges of drug trafficking and
possession of a firearm during and in relation to the drug traf-
ficking conviction, challenges his sentence as procedurally
infirm. He claims the district court erroneously counted dispo-
sition by a state drug court supervision program as a "prior
sentence" within the meaning of U.S.S.G. §§ 4A1.1 and
4A1.2. We agree, and therefore vacate the sentence and
remand for resentencing.
I.
On May 11, 2007, Martinez-Melgar pled guilty without a
plea agreement to (i) one count of possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a), and (ii)
one count of possession of a firearm during and in relation to
a drug trafficking crime in violation of 18 U.S.C. § 924(c).
The offense conduct charged in the indictment, and admitted
to by Martinez-Melgar, occurred on February 2, 2006. J.A. 9,
46. A probation officer subsequently prepared a presentence
report outlining (i) the offenses, (ii) Martinez-Melgar’s crimi-
nal history, (iii) his personal characteristics, and (iv) available
sentencing options. With respect to Martinez-Melgar’s crimi-
nal history, the report states that in connection with a 2003
cocaine possession charge in North Carolina state court,
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Martinez-Melgar on January 13, 2004 "was ordered to partici-
pate in and successfully complete the District Court Step
Drug Program as outlined in the Deferred Prosecution Agree-
ment." J.A. 5–6. According to the presentence report,
Martinez-Melgar was thereafter "[t]ransferred to unsupervised
probation" on November 23, 2004, and the charge was ulti-
mately dismissed on May 9, 2006. J.A. 5. Accordingly, the
probation officer applied a one-point "prior sentence"
enhancement to Martinez-Melgar’s offense level for his par-
ticipation in the program because "an admission of guilt in a
judicial proceeding is required for acceptance into this pro-
gram in Mecklenburg County, North Carolina." J.A. 6. More-
over, the probation officer assessed two additional criminal
history points because "[a]t the time the instant offense was
committed, the defendant was a participant in the District
Court Step Drug Program" and was therefore on probation as
that term is used in the Sentencing Guidelines. J.A. 6.
Martinez-Melgar, through counsel, objected to the probation
officer’s assessment of these three criminal history points.
Specifically, Martinez-Melgar objected to the findings (i) that
he made an admission of guilt in connection with his partici-
pation in "STEP," the Mecklenburg County, North Carolina
drug court supervision program, and (ii) that he was on proba-
tion at the time of the offense of conviction.
Martinez-Melgar raised these objections during the course
of a sentencing hearing held on April 14, 2008. His counsel
represented that she was unable to locate any records relating
to the charge in North Carolina state court, or to his alleged
participation in the STEP program. In response, the probation
officer indicated that computerized printouts obtained from a
state agency demonstrated that Martinez-Melgar had, in fact,
entered and successfully completed the STEP program. To
support her statement that participation in the STEP program
required an admission of guilt, the probation officer also
described her experience working in the state’s "general
deferred prosecution program." J.A. 59. In that program, the
officer explained, "the defendant was required to sign a state-
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ment admitting their [sic] guilt to the offense." J.A. 58. She
further noted that in the state’s general deferred prosecution
program at the time she was a state probation officer, the
statement of responsibility would be "handed to the judge,
along with the Deferred Prosecution Agreement, for review,"
and that the judge would sign the contract and the statement
of responsibility would be retained in the defendant’s proba-
tion file. J.A. 58. While acknowledging that the STEP pro-
gram was "slightly different," the probation officer stated that
she had spoken with a Mecklenburg County assistant district
attorney named Steve Ward, who
assured me that at the time the program was initiated
and presently, a statement of guilt—an admission of
guilt was necessary for acceptance into the program,
and he has no reason to believe that at any time in
between the beginning of the program and now that
that policy would have changed.
J.A. 59.
Nonetheless, the probation officer indicated that she had
been unable to acquire the statement of responsibility or
deferred prosecution agreement because the state’s probation
office could not locate Martinez-Melgar’s probation file and
because the public defender’s office refused to allow her to
view their file. The district judge expressed some frustration
with the public defender’s apparent refusal to turn over "the
documents,"1 noting that they were not privileged or confiden-
tial because "it was done in open court by a state district
judge." J.A. 63. Thus, the district judge continued sentencing
to May 12, 2008, in part to afford the government an adequate
opportunity to locate documents related to Martinez-Melgar’s
participation in the STEP program.
1While there is some ambiguity as to which "documents" the district
judge was referring to, it appears from the record that he was alluding to
the deferred prosecution agreement and statement of responsibility previ-
ously referenced by the probation officer.
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At the May 12, 2008 hearing, the government’s counsel
informed the district judge that he had been unable to locate
any such documents. He further stated that the public defend-
er’s file had revealed that Martinez-Melgar was represented
by private counsel at the time that he allegedly entered the
STEP program, and the government’s counsel apparently
decided not to contact this attorney to attempt to retrieve cop-
ies of the statement of responsibility and the deferred prosecu-
tion agreement. Instead, at the May 12, 2008 hearing, the
government presented testimony from Steve Ward, the Meck-
lenburg County assistant district attorney. Ward testified that
he was the "architect" of Mecklenburg County’s STEP pro-
gram, that he was its coordinator from 1994 until 1998, and
that at the time of the hearing he sat on the management com-
mittee that oversees the program. Accordingly, while he had
no personal knowledge whatever of Martinez-Melgar’s case
or his alleged participation in the STEP program, Ward testi-
fied to the structure and procedures of the STEP program as
he understood them. Specifically, Ward described STEP as a
"pretrial diversion program." J.A. 84. With respect to the
requirements to enter the program, Ward testified as follows:
[An eligible defendant must] sign a contract with
the court that is signed by the district court judge,
the prosecutor, defense counsel, and the defendant
agreeing to abide by all the terms and conditions
of the program. And they are also required to sign
a Statement of Responsibility, or an admission of
guilt, where they admit that they possessed the
drugs in question.
Q: And what is done—the Statement of Responsibil-
ity, what is done with that document?
A: The Statement of Responsibility is usually
retained by the defense attorney pending the out-
come of the case. It is not filed in the court file, nor
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is it kept by the prosecutor. The contract is put in the
court file and a copy is given to all parties.
J.A. 86-87. Ward further explained that upon signing the con-
tract and the statement of responsibility, the defendant enters
the STEP program, which entails attending meetings, receiv-
ing counseling, and appearing in court every two weeks to
report on compliance or noncompliance with the program’s
rules. According to Ward, if a defendant fails to comply with
the program terms, he is removed from the program and
defense counsel is ordered to turn the statement of responsi-
bility over to the prosecutor for use in prosecuting the defen-
dant. On the other hand, if a defendant successfully completes
the program, then the "charges would be dismissed and the
documentation [would remain] . . . where it has been all
along." J.A. 87. Finally, Ward noted that "[a]ll of this is con-
tingent on everyone doing what they are supposed to do, and
there may be a circumstance, a rare one, where someone for-
gets to get the Statement of Responsibility signed." J.A. 87.
Following Ward’s testimony, Martinez-Melgar’s attorney
argued that the government had failed to show (i) that
Martinez-Melgar participated in the STEP program or (ii) that
he made an admission of guilt. The attorney further objected
to the use of computerized printouts from the North Carolina
Offender Information System as evidence of Martinez-
Melgar’s cocaine possession charge and his subsequent par-
ticipation in the STEP program.
The district judge overruled these objections and concluded
that the one-point criminal history enhancement was appropri-
ate. In support of his ruling, the district judge found that the
computerized printouts proved (i) that Martinez-Melgar was
charged in North Carolina state court with possession of
cocaine, (ii) that he entered the STEP program on January 13,
2004 as a result of this charge, (iii) that he was transferred to
unsupervised probation on November 23, 2004, and (iv) that
the charge of cocaine possession was ultimately dismissed on
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May 9, 2006. J.A. 97-98. Moreover, the district judge found
that Ward’s testimony showed that, in order to enter the STEP
program, Martinez-Melgar must have signed a statement of
responsibility, which, he held, constituted an admission of
guilt. The district judge did not explicitly rule on the objection
relating to whether Martinez-Melgar was on probation at the
time of the offense conduct. Instead, he calculated a guide-
lines sentencing range that included one criminal history point
attributable to the prior sentence and two criminal history
points attributable to committing the offense while under a
criminal justice sentence. When the district judge asked if the
parties agreed to the calculation, Martinez-Melgar’s counsel
said that she did, "subject to my objections." J.A. 98. Yet, at
no point during the course of the May 12, 2008 hearing was
the objection to the finding that Martinez-Melgar was on pro-
bation at the time of the offense conduct specifically raised,
nor was any objection raised with respect to any failure by the
district judge to make a factual finding to that effect. The dis-
trict judge proceeded to calculate an offense level of 22, a
criminal history category of II, and a guideline sentencing
range of 46 to 57 months on the first count and 60 months on
the second count, which was statutorily required to run con-
secutively to the sentence imposed on the first count. Accord-
ingly, he sentenced Martinez-Melgar to a total of 117 months
in prison.
II.
The issue on appeal is whether the district court properly
assessed three criminal history points in connection with
Martinez-Melgar’s alleged participation in the STEP program.
Martinez-Melgar argues that the sentencing court erred in
assessing the three criminal history points pursuant to
U.S.S.G. §§ 4A1.1(c) and 4A1.1(d) because his participation
in the program did not result from an admission of guilt in a
judicial proceeding in open court, as required by the guide-
lines. In the alternative, he contends that the sentencing court
erred in assessing two of those three criminal history points
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pursuant to § 4A1.1(d) because he was no longer under a
criminal justice sentence at the time of the offense of convic-
tion. Pure questions of law related to guidelines determina-
tions are reviewed de novo, while factual findings at
sentencing are reviewed for clear error. See United States v.
Dove, 247 F.3d 152, 155 (4th Cir. 2001); see also United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (apply-
ing the same standard post-Booker).
The analysis properly begins with the Sentencing Guide-
lines provisions governing criminal history, which require
assessing one criminal history point for a "prior sentence,"
U.S.S.G. § 4A1.1(c), and two additional points if the offense
of conviction is committed "while under any criminal justice
sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status," Id. § 4A1.1(d).
The terms "prior sentence" and "criminal justice sentence" are
defined to include "any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of
nolo contendere, for conduct not part of the instant offense."2
Id. § 4A1.2(a)(1). The guidelines further clarify that
"[d]iversion from the judicial process without a finding of
guilt (e.g., deferred prosecution) is not counted," but that a
"diversionary disposition resulting from a finding or admis-
sion of guilt, or a plea of nolo contendere, in a judicial pro-
ceeding is counted" as a sentence even if a conviction is not
formally entered. Id. § 4A1.2(f). Importantly, the commentary
to § 4A1.2 further states that a diversionary disposition quali-
fies as a "prior sentence" only if it results from "a judicial
determination of guilt or an admission of guilt in open court."
Id. § 4A1.2 cmt. 9. Thus, in order to qualify as a prior sen-
tence and as a criminal justice sentence within the meaning of
§§ 4A1.1(c) and 4A1.1(d), the sentence must result from (i)
2"Criminal justice sentence" is defined as a subset of a "prior sentence,"
namely, as a prior sentence having a custodial or supervisory component.
Thus, a term of probation would normally qualify as a "criminal justice
sentence" and as a "prior sentence." See U.S.S.G. § 4A1.1 cmt. 4.
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a finding or an admission of guilt (ii) in a judicial proceeding
(iii) in open court.
Martinez-Melgar first argues that the district court erred as
a matter of law in two respects. First, he argues that a qualify-
ing prior sentence requires formal entry of a plea or of a judg-
ment of conviction. This argument is without merit. Indeed,
the guidelines plainly include within the definition of a prior
sentence diversionary dispositions resulting from an "admis-
sion of guilt in open court." Id. § 4A1.2 cmt. 9. Martinez-
Melgar’s construction of § 4A1.2 would impermissibly read
this language out of the guidelines. Therefore, such an inter-
pretation is contrary to the plain meaning of § 4A1.2.3
Second, Martinez-Melgar argues that the district judge did
not make the required factual finding that the alleged admis-
sion occurred in a judicial proceeding in open court. Yet, it is
clear from the record that the district judge made precisely
such a finding. Indeed, during the April 14, 2008 hearing, the
district judge repeatedly referred to the "documents," includ-
ing the statement of responsibility and the deferred prosecu-
tion agreement, as having been "put on the record in open
court." J.A. 63; see also J.A. 61, 64. Thus, having determined
that the district court did make the requisite factual finding,
we next turn to the question whether that finding was clearly
erroneous.
It is well-settled that in reviewing a district court’s factual
findings for clear error, the court of appeals does not simply
substitute its judgment for that of the district court. Instead, a
factual determination may be found to be clearly erroneous
only "when although there is evidence to support [the district
3See United States v. Jones, 448 F.3d 958, 960-61 (7th Cir. 2006) (con-
cluding that a stipulation to "the facts supporting the charge" resulting in
a disposition of supervision was sufficient to constitute a prior sentence
under § 4A1.2, even in the absence of a formal plea or judgment of con-
viction).
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court’s finding], the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed." United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948). And in this respect, a reviewing court may
only find clear error where the factual determinations "‘are
not supported by substantial evidence.’" Brice v. Va. Beach
Corr. Ctr., 58 F.3d 101, 106 (4th Cir. 1995) (quoting U.S.
Gypsum Co., 333 U.S. at 361). Put another way, clear error
occurs when a district court’s factual findings "are against the
clear weight of the evidence considered as a whole." Miller v.
Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983).
Because the district court’s determination, by a preponderance
of the evidence, that Martinez-Melgar admitted his guilt in a
judicial proceeding in open court is unsupported by the
record, we hold that this finding was clearly erroneous.
To begin with, it is clear that district courts may properly
rely on circumstantial evidence in the course of making fac-
tual findings for purposes of calculating the correct advisory
guidelines range. In other words, there is no rule that a tran-
script, signed statement, or eyewitness testimony need be
presented in order for a sentencing court to conclude that the
defendant admitted his guilt in a judicial proceeding in open
court. More specifically, if evidence is presented that a defen-
dant previously participated in a specific diversionary pro-
gram, and if there is further evidence presented that the
specific program requires an admission of guilt in a judicial
proceeding in open court as a prerequisite to entry, then, in
the absence of any evidence to the contrary, a sentencing
court could reasonably conclude, by a preponderance of the
evidence, that the defendant admitted his guilt in a judicial
proceeding in open court. In such an event, a court must
assess the additional criminal history point accordingly. Yet,
as always, the inferences drawn from evidence by the trier of
fact must be reasonable in light of the record taken as a
whole. Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 359-
60 (4th Cir. 2001).
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The district judge in this case properly relied on computer-
ized printouts from the North Carolina Offender Information
System to support his findings (i) that Martinez-Melgar was
charged with cocaine possession and (ii) that as a result he
enrolled in, and successfully completed, the Mecklenburg
County STEP program. The district judge committed no error
in reaching these conclusions. Indeed, sentencing courts rou-
tinely rely on similar printouts of computerized records in
making such findings for purposes of calculating guidelines
ranges, and there is no support in our case law for Martinez-
Melgar’s contention that courts may not rely on such records
in these circumstances. Specifically, Martinez-Melgar’s argu-
ment that the district court erred in considering evidence other
than what is permitted by Taylor v. United States, 495 U.S.
575, 602 (1990), and Shepard v. United States, 544 U.S. 13,
16 (2005), misapprehends the significance of those opinions.
Those cases concerned whether the substantive content of a
prior conviction qualified the defendant for an Armed Career
Criminal Act enhancement pursuant to 18 U.S.C. § 924(e),
not the conceptually distinct issue of whether a conviction had
occurred at all. Similarly, in United States v. Maroquin-Bran,
___ F.3d ____, 2009 WL 3720864, at *3 (4th Cir. Nov. 9,
2009), we held that the district court could only consider
"Shepard-approved documents" for purposes of determining
whether the defendant’s prior conviction constituted a "drug
trafficking offense" that qualified him for a guidelines
enhancement. Again, the issue in Maroquin-Bran, as in Tay-
lor and Shepard, was not whether the prior conviction had
occurred, but rather the issue was the nature of the prior
offense. To the contrary, in this case the substantive content
of Martinez-Melgar’s alleged admission is not in issue;
instead, the question is whether the district judge clearly erred
in concluding that Martinez-Melgar made an admission in
open court in a judicial proceeding. Thus, in a case where, as
here, there is no indication whatever that the state records are
inaccurate, sentencing judges may reasonably conclude that
the records are accurate for purposes of guidelines calcula-
tions.
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In concluding that Martinez-Melgar admitted his guilt in a
judicial proceeding in open court, the district judge relied on
statements of a federal probation officer and the testimony of
Steve Ward, the Mecklenburg County assistant district attor-
ney. While the conclusion that Martinez-Melgar admitted his
guilt is supported by the probation officer’s assertions and
Ward’s testimony, neither statement supports the conclusion
that he was required to do so, and in fact did so, in a judicial
proceeding in open court. Specifically, the probation officer’s
statements about deferred prosecution program procedures
referred not to the Mecklenburg County STEP program, but
instead to North Carolina’s "general deferred prosecution pro-
gram," with which she was familiar from having been a North
Carolina state probation officer at some time in the past. J.A.
59. Thus, the probation officer’s assertion that, in the state’s
"general deferred prosecution program," a "statement admit-
ting [a defendant’s] guilt to the offense . . . was handed to the
judge, along with the Deferred Prosecution Agreement, for
review" is only probative of the Mecklenburg County STEP
program procedures to the extent that the record allows an
inference that the same procedure was followed in both pro-
grams. J.A. 58.
Yet, the record refutes such an inference. Indeed, it is pellu-
cidly clear from the record that the STEP program procedures
differ from the general state deferred prosecution program
procedures in a manner that does not permit the inference that
defendants are required to admit their guilt in a judicial pro-
ceeding in open court in order to be enrolled in the STEP pro-
gram. While the probation officer stated that under the general
North Carolina deferred prosecution program, the statements
of responsibility are retained in the defendant’s probation file,
she also said that Ward informed her that under the STEP pro-
gram, a deliberate choice was made not to keep the statements
of responsibility in the probation file because "they didn’t
want the admission of guilt floating around in all these differ-
ent files." J.A. 59. Moreover, in his testimony, Ward distin-
guished between (i) the STEP program contract, which is
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signed by the judge, prosecutor, defense counsel, and the
defendant, and placed in the court file, and (ii) the statement
of responsibility, which is "usually retained by the defense
attorney pending the outcome of the case, . . . [and] is not
filed in the court file, nor is it kept by the prosecutor." J.A.
86–87. Finally, Ward stated that upon successful completion
of the program, the charges would be dismissed and "the doc-
umentation [would remain] . . . where it has been all along."
J.A. 87. Only if the defendant is removed from the program
prior to successful completion will defense counsel turn over
the statement of responsibility to the prosecutor who, presum-
ably, would file it in court.
Ward’s testimony therefore made it clear that the STEP
program does not follow the same procedures as the general
North Carolina deferred prosecution program with respect to
statements of responsibility. Moreover, it is clear that in creat-
ing the STEP program, measures were implemented to
address concerns that a successful STEP program partici-
pant’s statement of responsibility would still be "floating
around" after the charges were dismissed. Thus, the probation
officer’s statement regarding the general North Carolina pro-
gram procedures are not probative of the STEP program pro-
cedures that may have been followed in Martinez-Melgar’s
case. Indeed, to the extent that any inference may be drawn
from Ward’s testimony concerning whether defendant’s
admission of guilt required for participation in the STEP pro-
gram ordinarily occurs in a judicial proceeding in open court,
the only permissible inference is that it does not.4 Accord-
ingly, the district judge clearly erred in concluding, on the
4The inference that the STEP program does not require an admission of
guilt in a judicial proceeding in open court is further supported by the
North Carolina probation statute, which only requires "approval of the
court, pursuant to a written agreement with the defendant" for placement
of a defendant on probation in connection with enrollment in a drug court
treatment program. N.C. Gen. Stat. § 15A-1341(a2). The statute does not
require a defendant to admit guilt to participate in a drug court treatment
program. Id.
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basis of the record before him, that Martinez-Melgar’s admis-
sion of guilt occurred in a judicial proceeding in open court.
It follows that the criminal history points should not have
been assessed.
Martinez-Melgar also objects to the guidelines range calcu-
lation on the ground that the district judge failed to make a
required factual finding that he was on probation at the time
of the offense of conviction, February 2, 2006. Because the
error addressed above requires that the sentence be vacated,
this issue need not be decided at this time. Nonetheless, for
purposes of offering appropriate guidance to the district court
on remand, it is worth noting that, while it appears that the
district judge found that Martinez-Melgar was still on proba-
tion when the offense conduct occurred,5 the record does not
support this conclusion. This is particularly true because the
North Carolina probation statute limits deferred prosecution
probation periods to a maximum of two years, a time period
that had expired on or before January 13, 2006, well before
the offense of conviction occurred on February 2, 2006. See
N.C. Gen. Stat. § 15A-1342(a). Thus even if, on remand, the
government is able to prove that Martinez-Melgar’s participa-
tion in the STEP program resulted from an admission of guilt
in a judicial proceeding in open court, it is far from clear that
it can be shown that Martinez-Melgar was still on probation
from the STEP program at the time of the offense of convic-
tion.
5Specifically, the district judge found that Martinez-Melgar entered the
STEP program on January 13, 2004, "and ultimately on November 23,
2004, was transferred to unsupervised probation, and on May 9th, 2006,
the charge of possession of cocaine, which is the key charge we’re talking
about in paragraph 23 of the Presentence Report, was dismissed." J.A. 97.
The obvious inference from this statement is that the district judge found
that Martinez-Melgar was on unsupervised probation until May 9, 2006,
the date on which the charge was dismissed.
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III.
For the foregoing reasons, we vacate Martinez-Melgar’s
sentence and remand to the district court for resentencing con-
sistent with this opinion.
VACATED AND REMANDED
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