09-2839-cr
United States v. Melvin


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of May, two thousand ten.

PRESENT:         JON O. NEWMAN,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                               No. 09-2839-cr

TITO MELVIN,
                                 Defendant-Appellant.

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APPEARING FOR APPELLANT:                          SAMUEL M. BRAVERMAN, Bronx, New York.

APPEARING FOR APPELLEE:                           JOHN P. COLLINS, JR., Assistant United States
                                                  Attorney (Katherine Polk Failla, Assistant United
                                                  States Attorney, on the brief), for Preet Bharara,
                                                  United States Attorney for the Southern District
                                                  of New York, New York, New York.



          Appeal from the United States District Court for the Southern District of New York
(Kenneth M. Karas, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 26, 2009, is AFFIRMED.

       Defendant Tito Melvin, who pleaded guilty to three counts of trafficking in crack

cocaine, on one occasion in an amount of at least fifty grams, see 21 U.S.C. §§ 812,

841(a)(1), 841(b)(1)(A), (B), challenges the reasonableness of the 192-month sentence

imposed after remand from this court. See United States v. Melvin, No. 06-0465-cr (2d Cir.

May 15, 2008) (remanding for resentencing consistent with Kimbrough v. United States, 552

U.S. 85 (2007)).1 We review Melvin’s reasonableness challenge for abuse of discretion, see

Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Cavera, 550 F.3d 180, 187 (2d

Cir. 2008) (en banc), assuming the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.




       1
          In summarily affirming Melvin’s original sentence, this court rejected Melvin’s
argument that the district court erred in failing to consider the Guidelines’ crack/powder
cocaine disparity on the ground that “it is error to give a below Guidelines sentence based
solely on a policy disagreement with the Guidelines’ disparate treatment of crack and powder
cocaine.” United States v. Melvin, 252 F. App’x 381, 381 (2d Cir. 2007). After concluding
otherwise in Kimbrough, the Supreme Court remanded this case for further consideration,
see Melvin v. United States, 552 U.S. 1253, 1253 (2008), prompting, in turn, our remand to
the district court for resentencing “consistent with Kimbrough,” United States v. Melvin, No.
06-0465-cr (2d Cir. May 15, 2008). For the reasons stated in text, Melvin’s sentence, based
on his status as a career offender and imposed by a district court well aware of its sentencing
discretion, is not at odds with Kimbrough.

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       1.     Procedural Reasonableness

       Melvin submits that his sentence is procedurally unreasonable because the district

court (1) failed to begin its sentencing determination with the mandated minimum of 120

months’ incarceration rather than the 262-to-327 month Guidelines range, (2) gave undue

deference to the original 216-month sentence imposed by Judge Charles L. Brieant, and (3)

failed adequately to consider the disparity between the Guidelines’ treatment of crack and

powder cocaine offenses discussed in Kimbrough v. United States. We disagree.

       At the outset, we note that the district court clearly “rested its sentence on the

appropriate considerations.” Kimbrough v. United States, 552 U.S. at 111. The record

demonstrates that it calculated the applicable Guidelines range, considered the sentencing

factors set out in 18 U.S.C. § 3553(a), addressed the parties’ arguments, and imposed a

below-Guidelines sentence of 192 months’ incarceration in light of – and with express

reference to – “§ 3553(a)’s overarching instruction to impose a sentence sufficient, but not

greater than necessary, to accomplish the sentencing goals advanced in § 3553(a)(2).” Id.

We thus have no reason to question the district court’s understanding of its sentencing

discretion under United States v. Booker, 543 U.S. 220 (2005), or its faithful discharge of

its sentencing obligations under § 3553(a), see United States v. Legros, 529 F.3d 470, 478

(2d Cir. 2008).

       Contrary to Melvin’s argument, nothing in Kimbrough, Booker, or our summary

decision in United States v. Baker, 254 F. App’x 73 (2d Cir. 2007), required the district court



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to use the statutory minimum sentence as a starting point for its sentencing determination and

to justify “any upward departure from the minimum,” Appellant’s Br. at 9. To the contrary,

the Supreme Court has suggested that the Guidelines range – even though now advisory –

provides “the starting point and the initial benchmark” for sentencing. Gall v. United States,

552 U.S. at 49; accord United States v. Cavera, 550 F.3d at 189.

       Nor was the district court precluded from considering the below-Guidelines sentence

previously imposed by Judge Brieant as information relevant to, but in no way binding on,

the court’s exercise of its discretion.2 Cf. United States v. Garcia, 413 F.3d 201, 228 & n.19

(2d Cir. 2005) (instructing that where original judge is unavailable to handle Crosby remand,

new judge should “carefully consider any statements made by the original sentencing judge

indicating an inclination to show greater leniency or severity but for the Guidelines

mandates”). Melvin’s argument that the previous sentence unduly constrained the district

court’s exercise of its discretion finds no support in the record.

       Melvin’s claim that the district court failed adequately to consider Kimbrough is

similarly without merit. The district court expressly referenced the procedural history of the

case, which included this court’s remand for resentencing consistent with Kimbrough.

Further, Melvin’s attorney referenced Kimbrough in letters to the court before sentencing and



       2
         Although Melvin did not challenge the district court’s consideration of Judge
Brieant’s sentence below, we do not consider the possibility of waiver, as the government
does not argue that point on appeal. See United States v. Quiroz, 22 F.3d 489, 491 (2d Cir.
1994) (observing that government “waive[s] waiver” when it does not raise argument on
appeal (internal quotation marks omitted)).

                                              4
orally during sentencing.    What Melvin overlooks is that his Guidelines range was

determined by his conceded status as a career offender under U.S.S.G. § 4B1.1(a), not by

Guidelines applicable to crack cocaine offenses. In a case decided after the remand order in

Melvin’s case, this court held that Kimbrough’s holding that a sentencing court may

consider the Guidelines’ crack/powder cocaine disparity in imposing a non-Guidelines

sentence, see 552 U.S. at 91, has no bearing when a crack defendant’s Guidelines are based

on career offender status, see United States v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008)

(holding that resentencing under Kimbrough is unnecessary when sentence “was not the

result of the Guidelines’ 100-to-1 powder to crack ratio, but rather resulted from

[defendant’s] status as a career offender”).

       Accordingly, we identify no procedural error rendering Melvin’s sentence

unreasonable.

       2.       Substantive Reasonableness

       Melvin asserts that his sentence is substantively unreasonable because it is greater

than necessary to achieve the goals of sentencing. We review the substantive reasonableness

of a district court’s sentence deferentially, and we will set the sentence aside “only in

exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks

omitted); United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007). This is not such a case.

We will rarely identify substantive unreasonableness in a Guidelines sentence. See Rita v.



                                               5
United States, 551 U.S. 338, 347 (2007); United States v. Ministro-Tapia, 470 F.3d 137, 142

(2d Cir. 2006); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Still less are we

likely to conclude that a below-Guidelines sentence is substantively unreasonable under the

parsimony clause. See United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing

that broad range of sentences qualify as reasonable punishments). Here, the district court

imposed a sentence 70 months below the bottom of the applicable Guidelines range after

considering, inter alia, the societal effects of large-scale drug dealing (through counsel,

Melvin acknowledged that he was a “big-time crack cocaine dealer,” Sent’g Tr. at 18), the

need for deterrence, and Melvin’s efforts to rehabilitate himself in prison. On this record,

we cannot conclude that the challenged sentence was substantively unreasonable.

       We have considered Melvin’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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