United States v. Michael Melchor

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0176n.06
No. 12-1300
FILED
Feb 14, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
MICHAEL MELCHOR, )
) OPINION
Defendant-Appellant. )
BEFORE: COLE, GRIFFIN, Circuit Judges; GWIN, District Judge.*
GWIN, District Judge. Michael Melchor appeals a 360-month sentence imposed by the
district court for receiving child pornography. Melchor argues that his sentence, which exceeded the
Sentencing Guidelines range of 210-262 months, is substantively unreasonable. For the reasons
below, we VACATE Melchor’s sentence and REMAND for resentencing.
I. BACKGROUND
In August 2011, an Oregon woman reported to police that her 12-year-old daughter J.S. was
using Facebook to communicate with 36-year-old Melchor. Melchor and J.S. met while playing an
online game and became Facebook friends shortly thereafter. The online contact between Melchor
and J.S. was sexual in nature. Melchor described in detail engaging in sexual intercourse with J.S.
and talked about shaving J.S.’s pubic hair.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
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United States v. Michael Melchor
The police discovered that Melchor, a previously registered sex offender, resided in Grand
Rapids, Michigan, and obtained a search warrant. Upon searching Melchor’s home, the police
discovered a laptop computer, a desktop computer, and thumb drives, all containing child
pornography. Melchor candidly admits his attraction to young girls.
On September 8, 2009, a grand jury returned a superseding indictment charging Melchor with
two counts: (1) knowingly receiving child pornography in the form of digital images using any
means or facility of interstate commerce, in violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1); and (2)
knowingly possessing child pornography shipped or transported in interstate commerce in violation
of 18 U.S.C. § 2252A(a)(5)(B).
After reaching a plea agreement, Melchor pleaded guilty to Count One. In exchange, the
Government moved to dismiss Count 2 and agreed not to bring charges for Melchor’s conduct with
J.S. After his acceptance of responsibility and after adjustments for specific offense characteristics,
the Presentence Investigation Report (PSR) recommended Melchor’s final offense level to be 35.
The calculation included a five-level enhancement under U.S.S.G. § 2G2.2(b)(5) for engaging in a
pattern of activity involving sexual abuse or exploitation of a minor.
The PSR based that enhancement on three prior documented instances of Melchor’s sexual
abuse or exploitation of a minor: (1) Melchor’s admission of sexually abusive contact with his two-
year-old sister when he was a teenager; (2) Melchor’s October 2001 conviction for interstate
transport of a minor with criminal sexual intent; and (3) Melchor’s December 2001 conviction for
traveling in interstate commerce for the purposes of engaging in a sexual act with a minor. The PSR
did not rely upon Melchor’s conduct with J.S. for the enhancement.
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An offense level of 35, paired with Melchor’s criminal history—yields a Guideline
recommendation of 210-262 months. But, the PSR recommended a sentence of 480 months—more
than double the Guideline recommended range and 218 months above the upper Guideline range.
The PSR gave two reasons for this recommendation: (1) the Guidelines did not account for
Melchor’s conduct with J.S. and (2) Melchor was not amenable to rehabilitation.
At Melchor’s sentencing, the Government recommended a sentence within the Guideline
range, while Melchor argued for a sentence below or within the Guideline range. Adopting the
reasoning of the PSR, the district court imposed a sentence of 360 months, ninety-eight months
above the high end of Melchor’s Guidelines range. Melchor filed a timely notice of appeal.
II. ANALYSIS
Melchor says that his sentence is substantively unreasonable. “A sentence may be considered
substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir.
2006) (internal citations omitted). The sentence must also “be proportionate to the seriousness of
the circumstances of the offense and offender, and sufficient but not greater than necessary, to
comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)
(internal citations omitted).
We review sentences for reasonableness under an abuse of discretion standard. United States
v. Penson, 526 F.3d 331, 336 (6th Cir. 2008). A sentence within the Guidelines range is
presumptively reasonable. Collington, 461 F.3d at 808. A sentence outside the Guidelines range,
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United States v. Michael Melchor
however, is not presumptively unreasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.
2008). For a sentence outside the Guidelines range, we may consider
the extent of the deviation, but must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The
fact that [we] might reasonably . . . [have] concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.
Gall v. United States, 552 U.S. 38, 51, (2007).
Melchor says: (1) that the district court erred in imposing an upward variance based on
Melchor’s likelihood for recidivism; and (2) that the district court erred in imposing an upward
variance based on Melchor’s conduct with J.S. We address his two arguments in turn.
A. Melchor’s Potential for Rehabilitation
First, Melchor says that it was improper for the district court to impose an upward variance
based on its assessment that Melchor had a high risk for recidivism. This assessment was partially
based on Melchor’s own statements at his allocution. Melchor admitted his inappropriate attraction
to children and noted that treatment programs had not been successful for him in the past. If required
to attend treatment again, Melchor said that he will “just put [his attractions] on the back burner in
[his] mind.” He furthermore conceded that “[t]he only way [he’s] willing to change is on [his] own
. . . but there’s no telling how long that’s going to take . . . .” In arguing that the district court erred
in its reliance upon Mechor’s risk of recidivism, Melchor says that recidivism is a trait common
among sexual offenders, that his candid statements are a reflection of this common issue, and that
they do not warrant an increase in his sentence.
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Melchor, however, cites no compelling support for this argument. The one case that he cites
to, United States v. Poynter, 495 F.3d 349 (6th Cir. 2007), is readily distinguishable. In Poynter, the
district court sentenced a sex offender to sixty years in prison—forty years above the top of the
applicable sentencing Guidelines. Id. at 353-354. In assigning such a large variance the district
court “left . . . little room to distinguish between Poynter and other sex offenders” in determining that
he was at high risk of re-offending. Id. at 354. In contrast, Melchor’s sentence is ninety-eight
months above the top of the Guidelines range, not forty years. Moreover, the district court found
Melchor was likely to reoffend because Melchor himself admitted that he was unlikely to change his
behavior.
Under 18 U.S.C. § 3553(a), the district court should consider deterrence and protection of
the public when assigning a sentence. 18 U.S.C. § 3553(a) (2010). And this Court has not hesitated
to affirm reasonable upward variances based on potential for recidivism in the past. See, e.g.,
United States v. Matheny, 450 F.3d 633, 641 (6th Cir. 2006) (“The district court’s six month’s
enhancement was not an unreasonable way to ensure that [the defendant] understood
that . . . recidivism is not acceptable”); United States v. Williams, 214 F. App’x 552, 556 (6th Cir.
2007) (affirming an upward variance in light of the defendants’ continuing propensity for violence);
Burton, 241 F. App’x at 320-21 (affirming an upward variance based on defendant’s criminal history
and high potential for recidivism). Melchor has said himself that he is a continuing threat to children
and that there is little hope for his rehabilitation. Thus, the district court did not abuse its discretion
when it found that Melchor’s potential for recidivism warranted an upward variance.
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B. Melchor’s Conduct with J.S.
Second, Melchor says that the district court improperly double-counted his conduct with J.S.
He says that his conduct with J.S. was already covered by the five-level increase he had received
under the Guidelines. Thus, he says the district court erred when it varied upward, based in part, on
its finding that the Guidelines did not account for that conduct. Melchor is correct that a sentence
is substantively unreasonable where the district court varies substantially from the Guidelines, yet
fails to identify a compelling justification for the variance. See United States v. Aleo, 681 F.3d 290
(6th Cir. 2012). A district court’s justification is not compelling if the “guidelines took into account
the very factors the judge said that they did not.” Id. at 301.
At the sentencing, the district court imposed a five-level enhancement for Melchor’s
engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. The
application notes to Guideline § 2G2.2(b)(5) define “pattern of activity” as “any combination of two
or more separate instances of sexual abuse or exploitation of a minor by the defendant . . . .”
U.S.S.G. § 2G2.2(b)(5) (emphasis added). The district court based the enhancement on three
instances of past conduct, but not on Melchor’s conduct with J.S. Specifically, the district court
remarked, “the situation with the Oregon girl is not taken into account in the guideline range.” It
then imposed a sentence ninety-eight months above the top of Melchor’s Guidelines range.
But Guideline § 2G2.2(b)(5) does cover Melchor’s conduct with J.S. Under § 2G2.2(b)(5),
“[s]exual abuse or exploitation” can mean conduct described in 18 U.S.C. §§ 2422 (coercion and
enticement) or 2423 (transportation of minors). U.S.S.G. § 2G2.2(b)(5). Melchor’s Facebook chats
with J.S. revealed:
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Mr. Melchor mailed J.S. a birthday card with $25.00, and also included a post-it note with
his address written on it; sexual conversations, to include Mr. Melchor messaging [sic] her
breasts, shaving her pubic hair, and making babies with her; Mr. Melchor’s
acknowledgement of J.S.’s age; . . . discussion about . . . Mr. Melchor and J.S. meeting in
person; and Mr. Melchor’s desire to be with J.S. and make babies.
According to Melchor’s plea agreement, the Government believed that his conduct with J.S.
qualified as an offense under both §§ 2422 and 2423, though it agreed not to bring these charges in
exchange for his plea. Thus, Melchor’s conduct with J.S. was one more additional instance of sexual
abuse or exploitation of a minor under the pattern of activity enhancement.2 And by its terms,
Guideline § 2G2.2(b)(5) imposes the large five-level increase for “any combination of two or more
separate instances of sexual abuse or exploitation” of a minor. U.S.S.G. § 2G2.2(b)(5) (emphasis
added).
In Aleo, the district court imposed a substantial upward variance after concluding that the
Guidelines did not account for the seriousness of the defendant’s conduct. 681 F.3d at 300. There,
the defendant pleaded guilty to multiple crimes related to possessing and transporting child
pornography. Id. at 293. One of the crimes involved him recording his molestation of his five-year-
old granddaughter. Id. at 294. At the sentencing, the district court said it “believed the guidelines
could not possibly have envisioned a crime as horrendous as Aleo’s.” Id. Thus, the district court
concluded, “‘there’s no way that the sentencing guidelines are adequate . . . .’” Id. at 297. It went
on to impose a sentence 427 months above the top of Aleo’s Guidelines range. Id.
2
The Government does not argue that Melchor’s conduct with J.S. falls outside of §§ 2422
or 2423.
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But the Guidelines did cover Aleo’s crimes. Id. at 300 (Aleo’s Guidelines calculation
“included several enhancements that specifically addressed the unique characteristics of his
offense.”). Thus, we held that the district court imposed a substantively unreasonable sentence
because its justification for the variance was based on factors already envisioned by the Guidelines.
Id.
Like the district court in Aleo, here the district court imposed an upward variance, in part,
because it believed that Melchor’s conduct with J.S. was not covered by the Guidelines. The
Government says that the district court imposed an upward variance on Melchor because the pattern
of activity enhancement did not fully represent the extent of Melchor’s pattern of sexual abuse of
children, or because Melchor’s criminal history category substantially underrepresented the
seriousness of his criminal history. But those were not the justifications offered by the district court.
At the sentencing, the district court said the “the situation with the Oregon girl is not taken into
account in the guideline range.” Thus, because Guideline § 2G2.2(b)(5) already accounted for
Melchor’s conduct with J.S., the district court erred in concluding that the Guidelines did not cover
that conduct. Consequently, Aleo governs the instant case, and the district court imposed the upward
variance without compelling justification.
Further, Melchor’s conduct with J.S. is not “substantially in excess of” the type of conduct
ordinarily involved in cases like this. U.S.S.G. § 5K2.0(a)(3). Under § 5K2.0(a)(3), a district court
may depart from the Guidelines, in an “exceptional case,” even though the conduct that “forms the
basis for the departure is taken into consideration in determining the guidelines range.” Id. But, to
justify such departure, the court must determine “that such circumstance is present . . . to a degree
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substantially in excess of . . . that which ordinarily is involved in that kind of offense. Id. Here, the
district court based the pattern of activity enhancement on three instances of past conduct, but not
on Melchor’s conduct with J.S. Counting Melchor’s conduct with J.S. would result in only four
instances of conduct under the § 2G2.2(b)(5) enhancement. Because § 2G2.2(b)(5) applies for “any
combination of two or more separate instances” of conduct, the four instances do not make
Melchor’s case so exceptional as to justify an upward departure. U.S.S.G. § 2G2.2(b)(5) (emphasis
added).
At sentencing, the district court appropriately found that Melchor’s apparent lack of
rehabilitation potential also warranted an upward variance. But the district court’s explanation did
not say how much the variance resulted from Melchor’s conduct with J.S.—which had already been
counted under § 2G2.2(b)(5)—and how much of the variance resulted from Melchor’s lack of
rehabilitation potential. Thus, we remand to the district court to consider what sentence is
appropriate without consideration of Melchor’s conduct with J.S.
III. CONCLUSION
For the reasons above, we VACATE Melchor’s sentence and REMAND for resentencing.
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GRIFFIN, J., dissenting.
I respectfully dissent. I would affirm the district court on the basis that it did not abuse its
discretion in sentencing defendant. Under the totality of the circumstances, defendant’s sentence is
substantively reasonable.
Even if Melchor’s conduct with the victim, J.S., was already accounted for in the Guidelines
computations underlying the five-level enhancement applied by the district court pursuant to
U.S.S.G. § 2G2.2(b)(5), “[t]he sentencing guidelines expressly authorize a district court to grant an
upward departure where ‘the defendant’s criminal history category substantially under-represents
the seriousness of [his] criminal history or the likelihood that [he] will commit other crimes.’”
United States v. Burton, 241 F. App’x 316, 321 (6th Cir. 2007) (quoting U.S.S.G. § 4A1.3(a)(1))
(alterations in original); see also United States v. Lanning, 633 F.3d 469, 475–76 (6th Cir. 2011).
Section 2G2.2(b)(5) only requires two prior instances of sexual abuse or exploitation of a minor to
justify application of the enhancement, but Melchor’s conduct with J.S. was his fourth such offense.
Because this is a case in which the criminal history category under the advisory Guidelines under-
represented the seriousness of Melchor’s criminal history, I conclude that the district court did not
abuse its discretion by considering Melchor’s conduct with J.S. in imposing the above-Guidelines
sentence.
In any event, Melchor’s high risk of recidivism independently supports the 98-month
variance imposed by the district court. As the majority notes, the sentencing record is replete with
indications of Melchor’s strong propensity to re-offend. In addition to his own admissions to this
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United States v. Michael Melchor
effect made to the district court during allocution, Melchor advised his probation officer, prior to
sentencing, that it was “too programmed” in him to change and he “d[id] not believe counseling will
change” him; he further admitted that he “likes young females” and he “does not think it will go
away.” Melchor told the officer that he did not feel he had a choice—he was labeled as a sex
offender and “fulfill[ed] the prophecy of the label.” On the basis of these admissions, the PSR
recommended an upward variance from the advisory Guidelines range to protect the public from
Melchor, “a repeat and dangerous sex offender who, by his own words, [was] not amenable to
counseling or incarceration.”
The district court expressly agreed with this characterization and cited Melchor’s incorrigible
behavior as the basis for its decision to impose the upward variance, stating:
I’m not going to accept in whole the recommendation of 480 months from the
presentence writer, but I’m going to vary upwards to 360 months. Let me explain
why, and it’s basically the same reasons set forth by the presentence writer, and that
is even based on his allocution here today, there doesn’t seem to be any hope in my
judgment, anyway, that the defendant’s going to change. So he ought to be
incarcerated for that period of time that he will be disabled from engaging in this kind
of activity, and I would hope that when he gets into his 60s, just because of age if
nothing else, this kind of activity will stop.
In other words, I’m not counting on any kind of counseling changing this kind of
behavior. He was convicted here. He was then charged with almost the same kind
of conduct when he violated his supervised release. This goes back all the way to the
Oklahoma case that was sent up here. But he has been enrolled in a sex offender
program. He admits being fixated on young girls. He likes young females. He says
that he doesn’t have a choice. I refer the parties and the Court of Appeals . . . to
Paragraph 72 [of the PSR].
The court concluded, in sum, that “[t]here’s a variance upwards, as I said, of about a hundred months
on this because I just, you know, bluntly, I see very little hope for any kind of change in his
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behavior.”
Given the abundant evidence demonstrating that Melchor was more likely to re-offend than
the average sex offender, the upward variance imposed by the district court was warranted and
reasonable on this ground alone. I would affirm.
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