FILED
NOT FOR PUBLICATION JUN 01 2012
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. 11-50143
Plaintiff - Appellee, D.C. No. 2:09-cr-00921-AHM-1
v.
MEMORANDUM *
MELVIN KING, aka Duck,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted May 11, 2012
Pasadena, California
Before: PREGERSON and GRABER, Circuit Judges, and CHEN,** District Judge.
Appellant Melvin King appeals his 67-month sentence for distribution of
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Defendant
contends that the district court erred in departing upward from the Sentencing
Guidelines and in failing to give adequate notice of its intent to depart. We affirm.
A. Upward Departure
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendant argues that the court erred in departing upward under U.S.S.G.
§ 4A1.3(a). We review “the district court’s interpretation of the Sentencing
Guidelines de novo, [its] application of the Sentencing Guidelines to the facts of a
case for abuse of discretion, and [its] factual findings for clear error.” United
States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (internal quotation marks
omitted).
First, the district court adequately explained its ruling. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (noting that it is procedural
error “to fail adequately to explain the sentence selected, including any deviation
from the Guidelines range”). Although the court did not list each prior act by
Defendant that formed a basis for its decision, it did list the factors underlying its
decision and tied those factors to the pre-sentence submissions for further
explanation. See id. at 992 (noting that “adequate explanation . . . [may] be
inferred from the PSR or the record as a whole”). The record thus provides a clear
basis for the court’s decision.
Second, the district court’s sentence was not substantively unreasonable.
See United States v. Ellis, 641 F.3d 411, 421–22 (9th Cir. 2011) (“[I]t is not
necessary to consider whether the district court correctly applied U.S.S.G § 4A1.3
(the provision at issue here), only whether the defendant’s ultimate sentence was
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reasonable.”). Here, the district court based its sentence on its conclusion that
Defendant was a serial criminal, used aliases, and had a decades-long span of
arrests and crimes, some of which were violent. The court also noted that many of
Defendant’s prior convictions were not taken into account in the criminal history
calculation and concluded that an above-Guidelines sentence was warranted to
deter future crime and to protect the public. Such considerations are proper. 18
U.S.C. § 3553(a); U.S.S.G. § 4A1.3(a)(2); Ellis, 641 F.3d at 423; United States v.
Rodriguez-Castro, 908 F.2d 438, 442 (9th Cir. 1990). Because the court relied on
permissible factors and sentenced Defendant to only ten months above the
Guidelines range, the sentence was not substantively unreasonable.
B. Adequate Notice
Federal Rule of Criminal Procedure 32(h) requires a district court to give
“the parties reasonable notice that it is contemplating . . . departure” from the
applicable Guideline range “on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission . . . . The notice must
specify any ground on which the court is contemplating a departure.” Fed. R.
Crim. P. 32(h) (emphasis added). Reviewing for plain error, we hold that
Defendant received adequate notice of the district court’s intent to depart upward.
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See United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir. 2008) (where
party fails to object in the court below, review is for plain error).
Nearly all of the district court’s bases for departure—Defendant’s decades-
long history of criminal conduct, the fact that many of his crimes were violent, the
fact that many of his crimes were not part of the criminal history calculation, the
need to protect the public, and the need to deter him from committing future
crimes—were identified in the pre-sentence materials. Thus, Defendant had
adequate notice under Rule 32(h) of those grounds for departure.
Defendant contends that he should have had notice of more specific grounds
for the court’s sentence, such as particular convictions that would warrant
departure, but that level of specificity is not required. See, e.g., United States v.
Williams, 291 F.3d 1180, 1193 (9th Cir. 2002) (per curiam) (identifying grounds
such as “extensive criminal history” as sufficient), overruled on other grounds by
United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc).
Defendant also argues that he did not have adequate notice of the district
court’s intent to rely on his use of aliases. But the PSR listed Defendant’s aliases
and referred to them throughout its discussion of his criminal history.
Furthermore, at the sentencing hearing, the district court announced its intent to
rely on the use of aliases, and Defendant’s counsel did not object or request a
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continuance. See United States v. Orlando, 553 F.3d 1235, 1238 (9th Cir. 2009)
(noting that the defendant must show “a prejudicial surprise” and how notice
would have “affect[ed] the parties’ presentation of argument and evidence”
(internal quotation marks omitted)).
AFFIRMED.
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