                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 24 2011

                                                                        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. 10-50184

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01201-ODW-70

  v.
                                                 MEMORANDUM *
KLINT AUSTIN MELCER, AKA Danger,
AKA Austin Melcer,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                       Argued and Submitted August 2, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
      Pursuant to a written plea agreement, Defendant-Appellant Klint Melcer

(“Melcer”) pleaded guilty to a charge of conspiring to commit racketeering

offenses. The Presentence Investigation Report determined Melcer’s total offense

level to be 26, and his criminal history category to be IV. These determinations

resulted in an advisory Guidelines range of 92 to 115 months’ imprisonment. At

the sentencing hearing, the District Court informed the parties that it intended to

depart upward two levels and was considering the imposition of a sentence at the

high end of the recommended range of 110-137 months’ imprisonment, because of

the brutality of Melcer’s crime and his prior conviction for assault with a firearm.

The district court ultimately imposed a sentence of 137 months’ imprisonment,

followed by three years of supervised release, and a special assessment of $100.

Melcer appeals his sentence.

      Melcer does not dispute his pre-departure total offense level, his criminal

history category, or his advisory Guidelines range. He does, however, raise two

challenges to the district court’s upward departure.

      1. Melcer argues that, because death is an element of manslaughter under 18

U.S.C. § 1112 and there were no exceptional circumstances outside the heartland

of the offense, the District Court was not authorized to rely on death as a factor for

upward departure under U.S.S.G. § 5K2.1. Melcer’s specific argument - that the


                                           2
district court committed procedural error in relying on factors already accounted

for by the Guidelines to justify an upward departure - has been explicitly rejected.

See United States v. Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir. 2011).

Instead, our “review of upward departures from the advisory Guidelines merges

with [our] review of the ultimate sentence for reasonableness, and is not reviewed

as a separate issue.” Id., citing United States v. Mohamed, 459 F.3d 979, 986 (9th

Cir. 2006).

      2. Melcer also argues that, even if the District Court had legal authority to

depart from the Guidelines, it failed to provide the requisite reasoned explanation

of the extent of the departure, founded on the structure, standards and policies of

the Sentencing Reform Act and the Guidelines. This argument relies on United

States v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir. 1991) (en banc), which has

been overruled. See United States v. Roston, 168 F.3d 377, 378-79 (9th Cir. 1999);

United States v. Beasley, 90 F.3d 400, 402-03 (9th Cir. 1996) (citing Koon v.

United States, 518 U.S. 81 (1996)). Under current precedents, a district court’s

explanation of its sentence must be sufficient to permit meaningful appellate

review. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

Although the district court must “explain why [it] imposes a sentence outside the

Guidelines,” id., the explanation itself need not rely upon (indeed, it may expressly


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contradict) the Guidelines. See, e.g., United States v. Mitchell, 624 F.3d 1023,

1029-30 (9th Cir. 2010). Here, the district court’s explanation of its sentence was

sufficient to permit meaningful appellate review.

      3. Melcer’s opening brief on appeal did not challenge the substantive

reasonableness of his sentence. The government’s answering brief identified fatal

defects with Melcer’s procedural arguments and addressed his latent substantive

unreasonableness claim. Because the government did brief the substantive

reasonableness issue, we exercise our discretion to reach it. See Koerner v. Grigas,

328 F.3d 1039, 1048-49 (9th Cir. 2003) (citing In re Riverside-Linden Inv. Co.,

945 F.2d 320, 324 (9th Cir. 1991)).

      Melcer’s sentence was not substantively unreasonable. Although Melcer “is

correct that some of the facts the court relied on to impose an above-Guidelines

sentence were already taken into account by the Guidelines and the various

enhancements imposed,” the district court “also identified additional facts which

were of a different nature than those required for the enhancements . . . .”

Lichtenberg, 631 F.3d at 1027. The district court stated that Melcer’s savage

beating of Huddleston, which was apparently unprovoked and occurred while

Melcer was on parole for felony assault, demonstrated “an unabated, depraved

indifference to human life.” As the district court noted at sentencing, this fact


                                           4
contributed to the magnitude of the offense and the need to protect the public. The

district court’s sentence was therefore not substantively unreasonable.

      AFFIRMED.




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