US v. Roger Melchor, No. 13-4731 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4731 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER TRENT MELCHOR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00028-TDS-1) Submitted: June 12, 2014 Decided: July 31, 2014 Before NIEMEYER, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Ripley Rand, United States Attorney, JoAnna G. McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roger Melchor appeals the seventy-four-month aggregate sentence of imprisonment imposed by the district court following his guilty plea to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (2012), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (2012). On appeal, Melchor contends that the district court erred by applying sentencing enhancements for abuse of a position of trust, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 3B1.3 (2012), and for the number of victims, pursuant to USSG § 2B1.1(b)(2)(A)(i). * We affirm. We deferential review sentences for abuse-of-discretion States, 552 U.S. 38, 41 (2007). requires us significant calculating to ensure procedural . . . the that reasonableness standard. Gall under v. a United The first step in this review the error, district such Guidelines as range. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). court . . committed . United no improperly States v. When reviewing the district court s application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de * Melchor s challenges pertain only to the fifty-month term imposed on the conspiracy charge. The consecutive twenty-four month term imposed on the identity theft charge was the statutory mandatory term. 2 novo. Id. The burden is on the government to establish by a preponderance of the should be applied. evidence that a sentencing enhancement See United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010). Melchor contends that he did not occupy a position of trust and therefore the enhancement was incorrectly applied to him. of Section 3B1.3 applies if the defendant abused a position trust and that abuse significantly contributed commission or concealment of the [underlying offense]. to the United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999); see USSG § 3B1.3 & cmt. n.1. position of trust However, in addition to a defendant in a from the perspective of the victims, the enhancement also applies to [a] defendant who exceeds or abuses the authority of his or her position in order to obtain . . . any means of identification. USSG § 3B1.3 cmt. n.2(B). We have concluded that the enhancement applies to an individual in a case similar to Melchor s. 592 F.3d Melchor 602, 610-12 abused his (4th See United States v. Abdelshafi, Cir. position 2010). to Therefore, obtain the because means of identification that made his fraud possible, the district court did not err in applying this enhancement. Lastly, Melchor argues that the district court erred in applying a two-level enhancement for the number of victims because only victims who suffered 3 a financial loss may be counted for purposes of the Guidelines. that [i]f increase the by application offense 2 levels. notes state identification[,] means of involved identification authority. USSG that, victim 10 was or more victims . . . § 2B1.1(b)(2)(A)(i). in means Section 2B1.1 provides . a . used case . involving any means individual unlawfully USSG § 2B1.1(b)(2) cmt. n.4(E). The or of whose without Application Note 4(E) specifically states that this definition of victim exists independently from the general definition of victim in Application Note 1, id., which requires actual loss or bodily injury. USSG § 2B1.1 cmt. n.1. Therefore, the district court did not err by considering the individuals whose identifying information was stolen by Melchor to be victims for purposes of the Guidelines, making the enhancement appropriate. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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