United States v. Roger Melchor , 580 F. App'x 173 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4731
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER TRENT MELCHOR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00028-TDS-1)
Submitted: June 12, 2014 Decided: July 31, 2014
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Ripley Rand, United States Attorney,
JoAnna G. McFadden, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Melchor appeals the seventy-four-month aggregate
sentence of imprisonment imposed by the district court following
his guilty plea to conspiracy to commit bank fraud, in violation
of 18 U.S.C. § 1349 (2012), and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) (2012). On appeal, Melchor
contends that the district court erred by applying sentencing
enhancements for abuse of a position of trust, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 3B1.3 (2012), and for
the number of victims, pursuant to USSG § 2B1.1(b)(2)(A)(i). * We
affirm.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). “The first step in this review
requires us to ensure that the district court committed no
significant procedural error, such as . . . improperly
calculating . . . the Guidelines range.” United States v.
Osborne, 514 F.3d 377, 387 (4th Cir. 2008). When reviewing the
district court’s application of the Sentencing Guidelines, we
review findings of fact for clear error and questions of law de
*
Melchor’s challenges pertain only to the fifty-month term
imposed on the conspiracy charge. The consecutive twenty-four
month term imposed on the identity theft charge was the
statutory mandatory term.
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novo. Id. The burden is on the government to establish by a
preponderance of the evidence that a sentencing enhancement
should be applied. See United States v. Manigan, 592 F.3d 621,
628-29 (4th Cir. 2010).
Melchor contends that he did not occupy a position of
trust and therefore the enhancement was incorrectly applied to
him. Section 3B1.3 applies if “the defendant abused a position
of trust and that abuse significantly contributed to the
commission or concealment of the [underlying offense].” United
States v. Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999); see USSG
§ 3B1.3 & cmt. n.1. However, in addition to a defendant in a
position of trust from the perspective of the victims, the
enhancement also applies to “[a] defendant who exceeds or abuses
the authority of his or her position in order to obtain . . .
any means of identification.” USSG § 3B1.3 cmt. n.2(B). We
have concluded that the enhancement applies to an individual in
a case similar to Melchor’s. See United States v. Abdelshafi,
592 F.3d 602, 610-12 (4th Cir. 2010). Therefore, because
Melchor abused his position to obtain the means of
identification that made his fraud possible, the district court
did not err in applying this enhancement.
Lastly, Melchor argues that the district court erred
in applying a two-level enhancement for the number of victims
because only victims who suffered a financial loss may be
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counted for purposes of the Guidelines. Section 2B1.1 provides
that “[i]f the offense involved 10 or more victims . . .
increase by 2 levels.” USSG § 2B1.1(b)(2)(A)(i). The
application notes state that, “in a case involving means of
identification[,] ‘victim’ means . . . any individual whose
means of identification was used unlawfully or without
authority.” USSG § 2B1.1(b)(2) cmt. n.4(E). Application Note
4(E) specifically states that this definition of victim exists
independently from the general definition of victim in
Application Note 1, id., which requires “actual loss” or “bodily
injury.” USSG § 2B1.1 cmt. n.1. Therefore, the district court
did not err by considering the individuals whose identifying
information was stolen by Melchor to be victims for purposes of
the Guidelines, making the enhancement appropriate.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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