United States v. Marchello McCain

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 6, 2019
• Docket: 18-50013
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 06 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50013

Plaintiff-Appellee, D.C. No. 3:15-cr-00174-W-1

v. MEMORANDUM* MARCHELLO DSAUN McCAIN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Argued and Submitted April 12, 2019 Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.

Marchello McCain appeals his sentence after pleading guilty to charges of

being a felon in possession of a firearm, being a violent felon in possession of body

armor, and making false statements in a terrorism investigation. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. 1. McCain repeatedly contends that United States Sentencing Guideline

Section 3A1.4’s terrorism enhancement does not apply because he lied not to

promote terrorism, but rather to protect his wife and to avoid maligning his dead

brother. But an offense involving “obstructing an investigation of a federal crime

of terrorism” is “considered to have involved, or to have been intended to

promote,” that crime. U.S.S.G. § 3A1.4, cmt. n. 2. The district court’s finding that

McCain lied “to prevent the government from finding out about the offenses

themselves, and more importantly, the scope of the offenses,” was not clear error.

Nor was its finding that McCain’s statements both frustrated and delayed the

investigation. The district court did not abuse its discretion in concluding that the

terrorism enhancement applied to the facts here.

2. McCain’s argument that applying the enhancement violated his rights

under Apprendi fails because Apprendi is only implicated where a court imposes a

sentence above the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466,

490 (2000); United States v. Ochoa, 311 F.3d 1133, 1136 (9th Cir. 2002); United

States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001). Here, the court

sentenced McCain to the statutory maximum for each count. McCain cites no case

where a court found Apprendi error in a sentence below or at the statutory

maximum.

2 3. Similarly, McCain’s argument that the district court “g[ave] no effect

to” and “ignore[d]” the eight-year statutory maximum for the false statement count

falls short: the district court sentenced McCain to that statutory maximum. Nor is

McCain correct that the court “borrow[ed] statutory maxima from unrelated groups

of offenses.” Since the sentence imposed on the count with the highest statutory

maximum (the felon in possession charge’s 120 months) was adequate to achieve

the total punishment, the court correctly set the other sentences (including the false

statement charge’s 96-month statutory maximum) to run concurrently. See

U.S.S.G. § 5G1.2(c). Although the statutory maximum on the felon in possession

count was higher than the statutory maximum for the false statement count, that

does not mean the district court “ignored” the latter or failed to properly apply

U.S.S.G. § 5G1.1, as McCain argues.

AFFIRMED.