US v. Phillip McGee

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00053-CCE-1. Copies to all parties and the district court. [999941918].. [15-4719]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4719

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP ALLEN MCGEE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cr-00053-CCE-1)

Submitted:

September 20, 2016

Decided:

October 5, 2016

Before GREGORY, Chief Judge, and WILKINSON and THACKER, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant.
Clifton Thomas Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Phillip Allen McGee pled guilty, pursuant to a written plea
agreement,

to

violation

of

conspiracy
21

U.S.C.

to

manufacture

§ 846

methamphetamine,

(2012).

The

district

in

court

sentenced McGee to 234 months’ imprisonment — a sentence below
the advisory Sentencing Guidelines range.

In accordance with

Anders v. California, 386 U.S. 738 (1967), McGee’s counsel has
filed a brief certifying there are no meritorious grounds for
appeal

but

applying

questioning

two

whether

sentencing

the

district

enhancements

sentence is substantively reasonable.

court

and

erred

whether

in

McGee’s

We affirm the district

court’s judgment.
We

review

abuse

of

discretion.

Gall v. United States, 552 U.S. 38, 51 (2007).

In

reviewing

district

a

a

defendant’s

court’s

sentence

decision

to

for

an

apply

a

sentencing

enhancement, “[w]e accord due deference to a district court’s
application of the sentencing guidelines.”
Steffen, 741 F.3d 411, 414 (4th Cir. 2013).

United States v.
We review the

district court’s factual determinations for clear error.
However,

“if

the

issue

turns

primarily

on

the

Id.
legal

interpretation of a guideline term, the standard moves closer to
de novo review.”

Id. (alterations and internal quotation marks

omitted).

2

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The district court imposed a two-level enhancement pursuant
to U.S. Sentencing Guidelines Manual § 2D1.1(b)(13)(A) (2014),
concluding that “the offense involved (i) an unlawful discharge,
emission,

or

release

into

the

environment

of

a

hazardous

or

toxic substance; or (ii) the unlawful transportation, treatment,
storage, or disposal of a hazardous waste.”

For the enhancement

to apply, the defendant’s conduct must violate one of several
environmental statutes, including the Resource Conservation and
Recovery Act, see 42 U.S.C. § 6928(d) (2012). 1
n.18.

USSG § 2D1.1 cmt.

McGee asserts that the district court erred in applying

this enhancement.
We disagree.
the

hazardous

manufacture

The district court heard testimony regarding

characteristics

methamphetamine. 2

of
The

the

chemicals

district

court

used
also

to

heard

testimony that McGee travelled in a vehicle while manufacturing
methamphetamine

and

that

he

disposed

littering and by burning it in a barrel.

of

the

byproduct

by

These chemicals and

1

Guidelines commentary that “interprets or explains a
guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.”
Stinson v. United
States, 508 U.S. 36, 38 (1993).
2

Although
McGee
questions
the
district
court’s
qualification of the witness as an expert in hazardous waste
disposal, the Federal Rules of Evidence do not apply at
sentencing.
Fed. R. Evid. 1101(d)(3); see United States v.
Powell, 650 F.3d 388, 392 (4th Cir. 2011).

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byproducts all had the potential to cause serious harm to human
health

or

the

environment

42 U.S.C. § 6903(5) (2012).

when

handled

improperly.

See

Thus, the district court properly

applied the § 2D1.1(b)(13)(A) enhancement.
Counsel next questions whether the district court properly
applied

a

four-level

enhancement

for

organizer or leader of the conspiracy.

McGee’s

role

as

an

A defendant qualifies

for a four-level enhancement to his offense level if he “was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.”
& cmt. n.4.

USSG § 3B1.1(a)

The district court’s determination that a defendant

was an organizer or leader is a factual matter reviewed for
clear error.

United States v. Thorson, 633 F.3d 312, 317 (4th

Cir. 2011).
Here,

McGee

introduced

the

“one-pot”

method

of

manufacturing methamphetamine to the conspiracy’s geographical
area.

Although the district court observed that this conspiracy

might not have been a typical drug conspiracy, the fact remains
that McGee was at the center of a large organization, taught
several individuals how to manufacture methamphetamine, and had
several

individuals

methamphetamine

for

purchase
him.

We

pseudoephedrine
therefore

conclude

and
that

sell
the

district court did not clearly err in finding that McGee acted
as a leader or organizer of this conspiracy.
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Finally, counsel questions whether McGee’s below-Guidelines
sentence is substantively reasonable.

If a sentence is free of

“significant procedural error,” as is the case here, we review
it for substantive reasonableness, “tak[ing] into account the
totality of the circumstances.”
sentence

that

is

within

Gall, 552 U.S. at 51.

or

below

a

properly

Guidelines range is presumptively reasonable.”
Louthian,

756

F.3d

295,

306

(4th

Cir.

“Any

calculated

United States v.

2014).

“Such

a

presumption can only be rebutted by showing that the sentence is
unreasonable
factors.”

when

Id.

measured

against

the

18

U.S.C.

§

3553(a)

We conclude that McGee has failed to overcome

the presumption of reasonableness accorded his below-Guidelines
sentence.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious grounds for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform McGee, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If McGee requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on McGee.

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We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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