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NOT FOR PUBLICATION MAR 26 2010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
NC/Research 2 09-30276
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.
NC/Research 3 09-30276