United States v. Klint Melcer , 448 F. App'x 712 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50184
Plaintiff - Appellee, D.C. No. 2:08-cr-01201-ODW-70
v.
MEMORANDUM *
KLINT AUSTIN MELCER, AKA Danger,
AKA Austin Melcer,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted August 2, 2011
Pasadena, California
Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
Pursuant to a written plea agreement, Defendant-Appellant Klint Melcer
(“Melcer”) pleaded guilty to a charge of conspiring to commit racketeering
offenses. The Presentence Investigation Report determined Melcer’s total offense
level to be 26, and his criminal history category to be IV. These determinations
resulted in an advisory Guidelines range of 92 to 115 months’ imprisonment. At
the sentencing hearing, the District Court informed the parties that it intended to
depart upward two levels and was considering the imposition of a sentence at the
high end of the recommended range of 110-137 months’ imprisonment, because of
the brutality of Melcer’s crime and his prior conviction for assault with a firearm.
The district court ultimately imposed a sentence of 137 months’ imprisonment,
followed by three years of supervised release, and a special assessment of $100.
Melcer appeals his sentence.
Melcer does not dispute his pre-departure total offense level, his criminal
history category, or his advisory Guidelines range. He does, however, raise two
challenges to the district court’s upward departure.
1. Melcer argues that, because death is an element of manslaughter under 18
U.S.C. § 1112 and there were no exceptional circumstances outside the heartland
of the offense, the District Court was not authorized to rely on death as a factor for
upward departure under U.S.S.G. § 5K2.1. Melcer’s specific argument - that the
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district court committed procedural error in relying on factors already accounted
for by the Guidelines to justify an upward departure - has been explicitly rejected.
See United States v. Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir. 2011).
Instead, our “review of upward departures from the advisory Guidelines merges
with [our] review of the ultimate sentence for reasonableness, and is not reviewed
as a separate issue.” Id., citing United States v. Mohamed, 459 F.3d 979, 986 (9th
Cir. 2006).
2. Melcer also argues that, even if the District Court had legal authority to
depart from the Guidelines, it failed to provide the requisite reasoned explanation
of the extent of the departure, founded on the structure, standards and policies of
the Sentencing Reform Act and the Guidelines. This argument relies on United
States v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir. 1991) (en banc), which has
been overruled. See United States v. Roston, 168 F.3d 377, 378-79 (9th Cir. 1999);
United States v. Beasley, 90 F.3d 400, 402-03 (9th Cir. 1996) (citing Koon v.
United States, 518 U.S. 81 (1996)). Under current precedents, a district court’s
explanation of its sentence must be sufficient to permit meaningful appellate
review. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Although the district court must “explain why [it] imposes a sentence outside the
Guidelines,” id., the explanation itself need not rely upon (indeed, it may expressly
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contradict) the Guidelines. See, e.g., United States v. Mitchell, 624 F.3d 1023,
1029-30 (9th Cir. 2010). Here, the district court’s explanation of its sentence was
sufficient to permit meaningful appellate review.
3. Melcer’s opening brief on appeal did not challenge the substantive
reasonableness of his sentence. The government’s answering brief identified fatal
defects with Melcer’s procedural arguments and addressed his latent substantive
unreasonableness claim. Because the government did brief the substantive
reasonableness issue, we exercise our discretion to reach it. See Koerner v. Grigas,
328 F.3d 1039, 1048-49 (9th Cir. 2003) (citing In re Riverside-Linden Inv. Co.,
945 F.2d 320, 324 (9th Cir. 1991)).
Melcer’s sentence was not substantively unreasonable. Although Melcer “is
correct that some of the facts the court relied on to impose an above-Guidelines
sentence were already taken into account by the Guidelines and the various
enhancements imposed,” the district court “also identified additional facts which
were of a different nature than those required for the enhancements . . . .”
Lichtenberg, 631 F.3d at 1027. The district court stated that Melcer’s savage
beating of Huddleston, which was apparently unprovoked and occurred while
Melcer was on parole for felony assault, demonstrated “an unabated, depraved
indifference to human life.” As the district court noted at sentencing, this fact
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contributed to the magnitude of the offense and the need to protect the public. The
district court’s sentence was therefore not substantively unreasonable.
AFFIRMED.
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