NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
JAN 04 2012
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50317
Plaintiff - Appellee, D.C. No. CR-09-2792-BTM
v.
MEMORANDUM *
MELVIN LUTRELL McGEE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and submitted December 9, 2011
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**
Melvin Lutrell McGee appeals his sentence imposed after his guilty plea to
voluntary manslaughter in violation of 18 U.S.C.A. § 1112. Although his 71-month
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
sentence falls within the applicable range of the Sentencing Guidelines, McGee argues
that it should be reversed for three reasons. First, McGee contends that the district
court erroneously treated his offense as murder, rather than voluntary manslaughter.
In a related argument, McGee claims that the court improperly rejected his
explanation of his state of mind in commission of the offense. Finally, McGee argues
that the sentence was procedurally erroneous because the court used the statutory
maximum as its analytical starting point, rather than the Guidelines range.
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). After
carefully reviewing the record, we conclude that the sentence imposed by the district
court was not unreasonable.
The district court did not contradict McGee=s voluntary manslaughter
conviction by discrediting his claim that the victim had reached for a gun. Under
federal law, A[i]f the defendant killed with the mental state required for murder . . . ,
but the killing occurred in the >heat of passion= caused by adequate provocation, then
the defendant is guilty of voluntary manslaughter.@ United States v. Paul, 37 F.3d 496,
499 (9th Cir. 1994). “Heat of passion” encompasses a state of >Arage, resentment,
anger, terror or fear=@ in which the defendant loses self-control as a result of
circumstances that would provoke such a passion in an ordinary person, but which do
not justify the use of deadly force. United States v. Frady, 456 U.S. 152, 170 n.18
(1982) (emphasis added) (quoting Austin v. United States, 382 F.2d 129, 137 (D.C.
Cir. 1967), overruled on other grounds by United States v. Foster, 783 F.2d 1082,
1085 (D.C. Cir. 1986)). Thus, a finding of imperfect self-defense was not necessary
for the offense to qualify as voluntary manslaughter.
For similar reasons, we do not accept McGee=s argument that the district court
improperly rejected the written explanation of his state of mind. As discussed, the
court did not automatically default to murder when it rejected McGee=s explanation.
Moreover, given the broad discretion of the district court at sentencing, see Nichols
v. United States, 511 U.S. 738, 747 (1994), it was not unreasonable for the court to
express skepticism as to the credibility of McGee=s explanation for his crime.
Furthermore, we reject McGee=s procedural error claim. It is established that
A[a]ll sentencing proceedings are to begin by determining the applicable Guidelines
range.@ Carty, 520 F.3d at 991. The record shows that the district court started its
analysis with the Guidelines range and repeatedly referred to it throughout the
sentencing process.1 The court also engaged in a lengthy analysis of each of the '
3553(a) factors, highlighting the seriousness of the offense and the fact that McGee
did not take responsibility for the crime until he was implicated by someone else 20
years later. The within-Guidelines sentence was not procedurally improper simply
1
Immediately after a victim impact statement, the court stated, AAre you
ready to make your recommendation and your guideline calculations? Why don=t
we start there.@
because the court made reference to the statutory maximum near the beginning of the
sentencing hearing.
AFFIRMED.