                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
No. 12-1300
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.

                                                 -2-
No. 12-1300
United States v. Michael Melchor

       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,

                                                 -3-
No. 12-1300
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.




                                                   -4-
No. 12-1300
United States v. Michael Melchor

        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.



                                                   -5-
No. 12-1300
United States v. Michael Melchor

        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:

                                                 -6-
No. 12-1300
United States v. Michael Melchor

          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.

                                                 -7-
No. 12-1300
United States v. Michael Melchor

        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

                                                  -8-
No. 12-1300
United States v. Michael Melchor

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.




                                                  -9-
No. 12-1300
United States v. Michael Melchor

       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

                                                - 10 -
No. 12-1300
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


                                                - 11 -
No. 12-1300
United States v. Michael Melchor

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.




                                             - 12 -
