                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 26 2010

                                                                         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. 09-30276

               Plaintiff - Appellee,             D.C. No. 4:08-cr-00150-SEH

   v.
                                                 MEMORANDUM *
 ANTHONY D. MELBOURNE,

               Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Anthony D. Melbourne appeals from the 168-month sentence imposed

following his guilty-plea conviction for second degree murder, in violation of



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

NC/Research
18 U.S.C. §§ 1111 and 1153(a). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we vacate and remand for resentencing.

       Melbourne contends that the sentence at the top of the advisory guideline

range is unreasonably long in light of his social background, age at the time of the

crime, and lack of any relevant mental health treatment. “On appeal, we first

consider whether the district court committed significant procedural error, then we

consider the substantive reasonableness of the sentence.” See United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). A district court should

normally explain why it accepts or rejects a party’s “specific, nonfrivilous

argument tethered to a relevant § 3553(a) factor in support of a requested

sentence.” See id. at 992-93. The record reflects that the district court failed to do

so in the instant case. See id. Specifically, the district court failed to acknowledge

or address at sentencing Melbourne’s mitigating arguments, including that he was

15 years old at the time of the offense conduct, that he suffered abuse as a child,

and that he witnessed significant episodes of violence as a child, such as the

shooting of his grandfather in the throat, the shooting of his uncle, and the shooting

of his cousin. Under these circumstances, the record is insufficient to allow us to

conduct meaningful appellate review. Cf. Carty, 520 F.3d at 995 (affirming as

reasonable a sentence at the bottom of the guidelines where Carty’s arguments for


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a lower sentence were neither “complex nor unusual”). Accordingly, we vacate

and remand for the district court to explain for the record why the sentence is

reasonable, given the mitigating arguments presented by Melbourne.

       VACATED AND REMANDED.




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