From U.S. v. Melzer, decided last week by Second Circuit Judges Susan Carney, Joseph Bianco, and William Nardini:
Defendant-Appellant Ethan Phelan Melzer appeals from the district court's judgment, following his guilty plea, to: (1) attempting to murder U.S. service members, in violation of 18 U.S.C. §§ 1114 and 2; (2) providing and attempting to provide material support to terrorists, in violation of 18 U.S.C. §§ 2339A and 2; and (3) illegally transmitting national defense information, in violation of 18 U.S.C. §§ 793(d) and 2. The district court sentenced Melzer principally to a term of 540 months' imprisonment, followed by supervised release for a term of three years.
Melzer's sole argument on appeal is that the district court procedurally erred at sentencing because its "reference to Melzer's dislike of 'Judeo and Christian values' created the appearance that the length of the sentence the court imposed was affected by a constitutionally impermissible consideration." Melzer did not object to the district court's comments during the sentencing, and we generally review claims of procedural unreasonableness under the plain error standard if no objection was raised in the district court. To determine whether error occurred, we review de novo whether the district court improperly considered a constitutionally impermissible factor in its sentencing….
In 2018, Melzer enlisted in the United States Army, and, after completing basic training, he was deployed to a military complex in Italy. During his assignment in Italy, Melzer plotted the murder of his fellow servicemembers, as part of his membership in the Order of the Nine Angels ("O9A"), which is a violent, white supremacist, neo-Nazi, Satanist, pro-jihadist group. In early May 2020, the Army reassigned Melzer to a platoon scheduled for a classified foreign deployment.
On or about May 23, 2020, in an O9A group chat on Telegram, Melzer wrote a series of messages, identifying himself as a U.S. servicemember stationed in Italy who was going on a deployment to another location and proposing that he and other members of O9A coordinate a jihadist attack on his platoon at that location. On May 25, 2020, he revealed highly sensitive information about the upcoming deployment to a co-conspirator via Telegram and discussed how an attack on the platoon could be successfully carried out.
After Melzer exchanged other Telegram messages with co-conspirators regarding the planned attack on the platoon, military investigators took him into custody on May 30, 2020, as his platoon waited to board buses to the airport in Italy en route to their new deployment location. On Melzer's phone, investigators found a message that Melzer had drafted, but not yet sent, in which he was responding to additional questions from a co-conspirator in order to affirm the depth of his ideological commitment to O9A.
