United States v. Richard William Melanson

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Duane Benton (UNPUBLISHED) [4463851] [16-1227]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1227
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Richard William Melanson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: October 17, 2016
Filed: October 28, 2016
[Unpublished]
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Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
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PER CURIAM.
Richard William Melanson pleaded guilty to travel with intent to engage in
illicit sexual contact, in violation of 18 U.S.C. § 2423(b). He appeals from the 360-

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month sentence of imprisonment and lifetime supervised release imposed by the
district court,1 arguing that the sentence is substantively unreasonable. We affirm.2
Melanson was serving a ten-year sentence imposed in January 2012 by a South
Dakota state court judge on a charge of possessing, manufacturing, and distributing
child pornography. It was discovered during the investigation of that charge that
Melanson had made three trips to Guatemala between 2007 and 2010.
The evidence introduced at the federal sentencing hearing established that
Melanson had engaged in sexual contact with three under-age boys during his trips to
Guatemala. The evidence also established that Melanson had whipped one of the
victims with a belt.
Melanson testified at length about his trips to Guatemala and his interactions
with the victims. He acknowledged that during his 2008 trip he had paid one of the
victims and an of-age boy money to submit themselves to being beaten with a belt and
to being touched in a sexual manner. He testified that he met with another of the
victims during his 2010 trip, who indicated that everything that Melanson proposed
to do with him “was okay.”
The district court questioned Melanson about the seventeen-minute video that
he had made that showed him beating one of the victims with a belt. Melanson
acknowledged that the video showed the victim convulse and recoil in pain with each
strike of the belt, only to have Melanson push the victim’s head back down so that he
was completely prone on the bed. Melanson also acknowledged that on one of the

1

The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
2

Electing to decide the appeal on its merits, we deny the government’s objectedto motion to dismiss the appeal based upon Melanson’s appeal waiver.
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beating occasions the victim appeared to be biting down on a blanket in anticipation
of the next strike of the belt. Melanson also acknowledged that after the beatings he
would have the victims stand up against the wall so that Melanson could take still
photos of the red striations across their buttocks. The video also showed the minor
victim performing oral sex on Melanson following one of the beatings. Finally,
Melanson acknowledged that he had agreed in his factual basis statement that his
travels to Guatemala were for the purpose of engaging in illicit sex with minors.
After considering the parties’ positions regarding the calculations of the
appropriate sentencing guidelines range, the district court determined that Melanson’s
total offense level was 43 and his criminal history category was II, resulting in a
guidelines range of life imprisonment. Because the statutorily authorized thirty-year
maximum sentence provided by 18 U.S.C. § 2423(b) was less than the minimum of
the applicable guideline range, the guideline term of imprisonment was 360 months.
U.S. Sentencing Guidelines Manual § 5G1.1(a).
After hearing Melanson’s expression of remorse for his conduct, his need for
therapy, and his plea for leniency, the district court heard testimony from the two
victims who had traveled from Guatemala, in which they described the adverse
impacts that Melanson’s conduct was having in their lives, including loss of selfesteem and feelings of shame and of fear of being found out by others.
Pointing to the fact that Melanson was 53 years of age, defense counsel
requested a sentence of ten years’ imprisonment and five years of supervised release.
He stated that Melanson’s expert witness’s psychosexual evaluation in the state
criminal proceedings placed Melanson in the lower half of offenders. He also argued
that a thirty-year sentence would result in too great a disparity with the twenty-fiveyear sentence that the district court had recently imposed in a pornography possession
case.

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The district court rejected defense counsel’s disparity argument, pointing out
the differences in the two cases. It stated that it had found the report regarding
Melanson’s psychosexual evaluation to be “the least helpful evaluation I have seen
from [the expert].” The district court then discussed at length that Congress had
enacted the statute to protect minors from the predatory behavior of sexual tourists
with the intention of making it clear that such conduct carries with it serious
consequences. It pointed to Melanson’s repeated travel to a country in which he knew
there were teenagers who were desperate for money and who yearned for the material
possessions displayed by visiting tourists. The court described Melanson as a highly
intelligent, high-functioning individual whose behavior focused on the target group
of vulnerable young males, upon one of whom he had inflicted extraordinary pain and
whom he had photographed for his sexual gratification. It noted the need to protect
the public, both in this country and in the international community, from the conduct
that Melanson had engaged in.
The district court concluded by recognizing that Melanson was capable of
benefitting from sex offender treatment, saying that it would recommend that he be
placed in a prison facility that provided such treatment. It stated further that “Prison
is punishment; that’s what it is. Congress says it’s not rehabilitation. But to the extent
the Bureau of Prisons has sex offender treatment, the judgment will say I recommend
that you be placed in a facility where you can undertake that.” It concluded by
ordering that the sentence be served concurrent with the undischarged portion of the
sentence that Melanson was serving on the state charge.
Melanson argues that his sentence is substantively unreasonable, imposed as it
was upon a 53-year-old offender whose prior criminal history was unrelated to the
conduct that resulted in the federal charges, rendering (in Melanson’s eyes, at least)
him a first-time offender. He asserts that the district court abused its discretion
because it “fundamentally sentenced him on the basis of [its] personal outrage at
Melanson’s offense conduct,” that it did not take into account Melanson’s age and
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uncontested low risk of recidivism, that it ignored the disparity with the sentence in
a comparable case, and that it improperly considered Melanson’s need for
rehabilitation and treatment as a factor in determining the length of the sentence.
We review the substantive reasonableness of a sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A
district court abuses its discretion when it fails to consider a relevant factor, gives
significant weight to an irrelevant or improper factor, or considers only appropriate
factors but nevertheless commits a clear error of judgment by arriving at a sentence
that lies outside the limited range of choice dictated by the facts of the case.” United
States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting United States v.
Jones, 509 F.3d 911, 913 (8th Cir. 2007)); see also Gall, 552 U.S. at 59 (noting that
the range of choice dictated by the facts of a case was significantly broadened after the
guidelines became advisory).
We conclude that our above-set-forth recitation of the district court’s sentencing
explanation carries with it a refutation of Melanson’s disparity and recidivism
arguments. As for the alleged outrage-based sentencing determination allegation, we
agree that the sentencing transcript reflects the district court’s deeply felt thoughts
regarding Melanson’s repeated travels to Guatemala to prey upon his vulnerable
victims in that poverty-stricken place. While a sentence must not be imposed out of
unrestrained emotion, a sentencing court should not be required to view with
dispassionate aplomb that which all would consider to be repellent, predatory conduct.
Accordingly, we reject the argument that the district court’s sentence in this case was
other than the result of a careful, systematic analysis of that which was needed and
appropriate in light of the sentencing factors set forth in 18 U.S.C. § 3553(a).
Likewise, we conclude that the district court’s discussion of Melanson’s need
for and amenability to sex offender treatment did not result in a sentence that was
imposed or lengthened to promote Melanson’s rehabilitation, but rather reflected its
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desire that Melanson be placed in a facility that would provide him with such
treatment. As the United States Supreme Court said in Tapia v. United States, 564
U.S. 319, 333 (2011), “a court may urge the BOP to place an offender in a prison
treatment program,” which is what the district court did in United States v. Rickert,
685 F. 3d 760, 769 (8th Cir. 2012), and what the district court did here.
The sentence is not unreasonable, and it is therefore affirmed.
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