FILED
NOT FOR PUBLICATION JAN 07 2011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. 09-30350
Plaintiff - Appellee, D.C. No. 3:09-cr-00018-RRB-1
v.
MEMORANDUM *
MICHAEL A. MCLOONE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted November 5, 2010
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**
Michael McLoone appeals his sentence for being a felon in possession of
firearms and ammunition. We have jurisdiction under 18 U.S.C. § 1291. We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
McLoone’s federal conviction and sentence for being a felon in possession
of firearms and ammunition, 18 U.S.C. §§ 922, 924, arise from his assaulting his
girlfriend, including holding a gun to her head. The investigation into the assault
charges revealed that McLoone possessed two firearms and bought ammunition on
at least one occasion.
McLoone was convicted in Alaska state court of two counts of felony assault
and four counts of misdemeanor assault. On the first count, assault in the third
degree by means of a dangerous instrument (a 9 mm pistol), McLoone was
sentenced to four years imprisonment with one year suspended, and five years
probation. Combined with his sentences for the other five counts, his total state
sentence was five years and 240 days jail, exclusive of suspended and concurrent
time, and five years probation, exclusive of concurrent time. In federal court,
McLoone was sentenced for being a felon in possession of firearms and
ammunition to forty-six months, with twenty-two months to run concurrent to his
state sentence for assault with a firearm, and twenty-four months to run
consecutive to that sentence.
McLoone first argues that his federal sentence is procedurally erroneous
because the district court failed to consider and apply Sentencing Guideline §
5G1.3(b). Under that guideline, if a sentence resulted from another offense that is
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relevant conduct to and was the basis for an increase in the offense level for the
instant offense, the sentence for the instant offense: 1) shall be adjusted for any
period of imprisonment already served on the undischarged term of imprisonment
for the other offense, if such period of imprisonment will not be credited to the
federal sentence by the Bureau of Prisons; and 2) shall be imposed to run
concurrently to the remainder of the undischarged term of imprisonment for the
other offense. U.S. Sentencing Guidelines Manual § 5G1.3(b)(1), (2).
The district court made an informed decision, in light of 18 U.S.C. § 3553(a)
factors, not to apply § 5G1.3(b) to McLoone’s state sentence for assault with a
firearm. Under the advisory guidelines system, such a variance is permitted, if the
district court adequately explains its reasons. State v. Armstead, 552 F.3d 769, 784
(9th Cir. 2008). The district court’s reference to the § 3553(a) factors and its
explanation that a fully concurrent sentence would insufficiently punish McLoone
for his separate federal offense was adequate.
McLoone next argues that the sentence is procedurally erroneous because the
district court failed to give him notice of its intention not to follow § 5G1.3(b).
Notice, however, was not required because McLoone’s sentence was a variance,
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and not a pre-Booker1 departure under 18 U.S.C. § 3553(b). Irizarry v. United
States, 553 U.S. 708, 714-15 (2008). Furthermore, McLoone in fact was given
notice and was granted a continuance to supplement his briefing of the § 5G1.3(b)
issue.
McLoone argues the sentence was procedurally erroneous because the district
court failed to consider his arguments in support of a horizontal departure from
criminal history category V to category IV. Namely, McLoone claimed that
category V over-represented his criminal history because it included a seventeen-
year-old warrant for failure to appear in Florida state court on a misdemeanor
battery charge to which he had pleaded no contest, but which has not been yet
adjudicated. Contrary to McLoone’s contentions, the district court adequately
considered the arguments, but rejected them because of McLoone’s history of
violence against his female partners. There was no procedural error.
Finally, McLoone argues that the twenty-four-month consecutive portion of
his sentence was substantively unreasonable. He contends that his crime of being a
felon in possession was only of three months’ duration and was innocuous except
for the assaultive conduct. He also contends that he did not acquire the guns, that
the guns were legally owned by his girlfriend, that they did not have unusual
1
United States v. Booker, 543 U.S. 220 (2005).
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characteristics, and that he did not typically carry the guns on his person, but used
them only for target shooting and home protection.
In rejecting McLoone’s plea for a lighter sentence, the district court
repeatedly emphasized McLoone’s violent nature, as reflected by his criminal
history and the events giving rise to the instant offense, and the increased risk to
society that his possession of firearms posed for that reason. The district court also
expressed concern that by imposing a sentence fully concurrent to the state sentence
for assault with a firearm, McLoone would be too leniently punished for his
separate, and serious, federal offense of being a felon in possession of firearms and
ammunition. It therefore sentenced McLoone to the high end of the Guidelines
sentencing range, forty-six months, twenty-two of which are to be served
concurrent to his state sentence and twenty-four consecutive to that sentence.
Where the district court specifically considered the § 3553(a) factors and
sentenced McLoone at the high end of the Guidelines sentencing range in
recognition of the aggravating circumstances in his criminal history and the instant
offense and the fact that almost half the sentence will be served concurrent to a
different sentence, we cannot say that the district court abused its discretion or that
the sentence was unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th
Cir 2008), cert. denied Zavala v. United States, 553 U.S. 1061 (2008).
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AFFIRMED.
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