US v. McClellan

Filing 920090403

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-5101

UNITED STATES OF AMERICA, Plaintiff - Appellant, v. STEPHEN DALE MCCLELLAN, Defendant - Appellee.

On Remand from the Supreme Court of the United States. (S. Ct. No. 07-1154)

Submitted:

January 29, 2009

Decided:

April 3, 2009

Before WILLIAMS, Chief Judge, HAMILTON, Senior Circuit Judge.

MICHAEL,

Circuit

Judge,

and

Vacated and remanded by unpublished per curiam opinion.

Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellant. R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Stephen Dale McClellan was found guilty by a jury of conspiracy to possess with the intent to distribute in excess of 1.5 kilograms 846 of methamphetamine, The jury in violation found, of 21 U.S.C. that

§§ 841,

(2006).

further

however,

McClellan did not know and could not have reasonably foreseen the involvement of at least 1.5 kilograms of methamphetamine. At the original sentencing hearing, the district court

determined that it could only sentence McClellan based on the twenty grams of methamphetamine he admitted at trial, in light of the jury's court a special found verdict that finding. On this basis, was the 20,

district yielding

McClellan's under

offense

level

sentencing

range

the

advisory

Sentencing

Guidelines of thirty-three to forty-one months of imprisonment. McClellan was sentenced to thirty-six months of imprisonment. On appeal, we vacated McClellan's sentence and

remanded the case for resentencing because we found that the district court erred as a matter of law by failing to take the imperative under the initial step of calculating McClellan's sentence all See

advisory amounts

Sentencing properly

Guidelines, attributable to

using him.

methamphetamine

United States v. McClellan, 182 F. App'x 224, 226-27 (4th Cir. 2006) ("McClellan I").

2

On remand, the district court again stated its belief that it could apply the advisory Guidelines using only the drug quantity district McClellan court admitted an at trial. On that basis, imposing the the

entered

"Amended

Judgment"

original thirty-six-month sentence. In addition, in recognition of our mandate on remand, the district court examined the record and found that McClellan knew, understood, and foresaw the

involvement of the conspiracy of at least 500 grams of the drug, that such a finding supported an offense level of 32, and, that with his criminal history category of I, McClellan's range was 121-151 months of imprisonment. sentencing

The district court,

after considering 18 U.S.C. § 3553(a) (2006), ordered a sentence of 121 months of imprisonment as memorialized in an "Alternative Amended Judgment." On appeal, we vacated and remanded again, noting that a district court imposing a sentence after the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 261-62

(2005), must: (1) properly calculate the Sentencing Guidelines range; (2) determine whether a sentence within that range serves the factors under 18 U.S.C. § 3553(a); (3) implement mandatory statutory limitations; and (4) explain its reasons for selecting a sentence, especially a sentence outside the range. We

instructed the district court on remand to make the appropriate findings regarding drug quantity 3 in applying the advisory

Guidelines. 656

See United States v. McClellan, 257 F. App'x 654,

(4th Cir. 2007) ("McClellan II"), vacated, 129 S. Ct. 33

(2008) (No. 07-1154). The Supreme Court, however, granted a petition for

writ of certiorari, vacated our judgment in McClellan II, and remanded the case to this court for further consideration in light of Gall v. United States, 128 S. Ct. 586 (2007). We note

that Gall issued on the same day as our opinion in McClellan II. Thus, the district court did not have the benefit of Gall when it resentenced McClellan. In Booker the Supreme Court invalidated both 18 U.S.C. § 3553(b)(1) and (2006), 18 which § made the Sentencing (2006), Guidelines required

mandatory,

U.S.C.

3742(e)

which

appellate courts to conduct a de novo review of departures from the Guidelines. 543 U.S. at 260-62. As a result of Booker, the

Guidelines are now advisory, and appellate courts are limited to reviewing sentencing decisions to determine whether such As the

sentences are "reasonable."

Gall, 128 S. Ct. at 594.

Supreme Court has made clear, the "appellate `reasonableness' review" required by Booker "merely asks whether the trial court abused its discretion." 2465 (2007). Rita v. United States, 127 S. Ct. 2456,

Further "appellate review of the reasonableness of

a sentence focuses on whether the sentencing court abused its

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discretion in imposing the chosen sentence." United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). As we noted in Pauley, the Gall opinion instructed that a sentencing court should first calculate the applicable Guidelines range. desire for Id. This starting point furthers Congress' administration and consistency in

efficient

sentencing. the court

After calculating the Sentencing Guidelines range, must give each party an opportunity to argue for

whatever sentence they deem appropriate. United States, 128 S. Ct. 558, 569 (2007).

Id.; see Kimbrough v. The sentencing court

must then consider all of the § 3553(a) factors to determine if they support the sentence requested by either party. In so

doing, the district court may not presume the Guidelines range is reasonable. 596. Pauley, 511 F.3d at 473; see Gall, 128 S. Ct. at

If the sentencing court decides to sentence a defendant

outside the Guidelines sentencing range, it must consider the extent of the deviation to to ensure support that the the justification of is

sufficiently

compelling

degree

variance.

Pauley, 511 F.3d at 473. departure should than be a

As noted by the Gall Court, a major supported by Gall, a more 128 S. significant Ct. at 596;

justification

minor

one.

Pauley, 511 F.3d at 473. Accordingly, we vacate and remand McClellan's sentence for resentencing in light of the 5 Supreme Court's opinion in

Gall,

and

this

court's

opinions

applying

Gall

and

related

authority.

See, e.g., Pauley, 511 F.3d at 473-76.

We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

VACATED AND REMANDED

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