United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).
Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).
360-month sentence. GLs were 210 to 262.
Receiving CP.
COA vacated and remanded: sentence was substantively unreasonable.
The defendant was 36 years old. Met a 12-year-old girl on-line and became Facebook friends. They had on-line contact that was sexual in nature (sexual discussions and such). Defendant was a registered sex offender. The mother of the girl discovered the relationship and contacted police. Police executed a warrant and discovered CP. The defendant confessed an interest in young girls. The defendant pleaded guilty to receiving CP. The gov agreed not to charge him with the conduct related to the 12-year-old girl.
Total offense level 35. Enhancement b/c of "pattern of activity": prior exploitation of a minor. PSR recommended sentence of 480 months. Gov recommended GL sentence. Defendant argued for a sentence below the GLs, or at least within them. Dist ct gave 360-month sentence. Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.
Points:
* Potential for recidivism may provide grounds for variance. Defendant here did not appear amendable to rehab. Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance.
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement). This conduct was covered---even if other conduct also supported the enhancement. So this conduct was not a justification for the upward variance.
* Defendant's conduct was not outside of what is generally covered by the GLs.
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary.
J. Griffin dissented.
Dissent:
* Given totality of circumstances, the sentence was substantively reasonable.
* GLs provide for upward departure for under-represented criminal history.
* Defendant presented a high risk of recidivism---more so than "the average sex offender."
