United States v. Marchello McCain ( 2019 )

FILED
NOT FOR PUBLICATION
MAY 06 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50013
Plaintiff-Appellee, D.C. No. 3:15-cr-00174-W-1
v.
MEMORANDUM*
MARCHELLO DSAUN McCAIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted April 12, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.
Marchello McCain appeals his sentence after pleading guilty to charges of
being a felon in possession of a firearm, being a violent felon in possession of body
armor, and making false statements in a terrorism investigation. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
1. McCain repeatedly contends that United States Sentencing Guideline
Section 3A1.4’s terrorism enhancement does not apply because he lied not to
promote terrorism, but rather to protect his wife and to avoid maligning his dead
brother. But an offense involving “obstructing an investigation of a federal crime
of terrorism” is “considered to have involved, or to have been intended to
promote,” that crime. U.S.S.G. § 3A1.4, cmt. n. 2. The district court’s finding that
McCain lied “to prevent the government from finding out about the offenses
themselves, and more importantly, the scope of the offenses,” was not clear error.
Nor was its finding that McCain’s statements both frustrated and delayed the
investigation. The district court did not abuse its discretion in concluding that the
terrorism enhancement applied to the facts here.
2. McCain’s argument that applying the enhancement violated his rights
under Apprendi fails because Apprendi is only implicated where a court imposes a
sentence above the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466,
490 (2000); United States v. Ochoa, 311 F.3d 1133, 1136 (9th Cir. 2002); United
States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001). Here, the court
sentenced McCain to the statutory maximum for each count. McCain cites no case
where a court found Apprendi error in a sentence below or at the statutory
maximum.
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3. Similarly, McCain’s argument that the district court “g[ave] no effect
to” and “ignore[d]” the eight-year statutory maximum for the false statement count
falls short: the district court sentenced McCain to that statutory maximum. Nor is
McCain correct that the court “borrow[ed] statutory maxima from unrelated groups
of offenses.” Since the sentence imposed on the count with the highest statutory
maximum (the felon in possession charge’s 120 months) was adequate to achieve
the total punishment, the court correctly set the other sentences (including the false
statement charge’s 96-month statutory maximum) to run concurrently. See
U.S.S.G. § 5G1.2(c). Although the statutory maximum on the felon in possession
count was higher than the statutory maximum for the false statement count, that
does not mean the district court “ignored” the latter or failed to properly apply
U.S.S.G. § 5G1.1, as McCain argues.
AFFIRMED.
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