UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5005
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
STEPHEN DALE MCCLELLAN,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-74)
Submitted: May 11, 2006 Decided: May 25, 2006
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.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, OFFICE OF
THE 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The United States appeals the sentence imposed on Stephen Dale
McClellan, principally challenging the district court’s calculation
of McClellan’s sentencing range under the Guidelines. For the
reasons that follow, we vacate the sentence and remand the case for
resentencing.
On August 2, 2004, McClellan was charged along with six others
with conspiracy to possess with the intent to distribute in excess
of 1.5 kilograms of methamphetamine, 21 U.S.C. §§ 841 and 846.
Following a jury trial, McClellan was found guilty of the charged
offense. By special verdict, the jury found that the conspiracy
involved at least 1.5 kilograms of methamphetamine but that
McClellan did not know and could not have reasonably foreseen the
involvement of at least 1.5 kilograms of methamphetamine.
In preparation for sentencing, a presentence report (PSR) was
prepared. In the PSR, the probation officer calculated a base
offense level of 34 based on a determination that the conspiracy
involved at least 1.5 kilograms of methamphetamine. A base offense
level of 34, coupled with a criminal history category of I,
produced a sentencing range under the Guidelines of 151 to 188
months’ imprisonment.
At the sentencing hearing on August 31, 2005, the district
court determined that, in light of the jury’s special verdict
finding that McClellan did not know and could not have reasonably
2
foreseen the involvement of at least 1.5 kilograms of
methamphetamine, the court could only sentence McClellan based on
the twenty grams of methamphetamine he admitted at trial that he
possessed. Based on the court’s determination that McClellan was
responsible for twenty grams of methamphetamine, the court found
that McClellan’s offense level was 20, yielding a sentencing range
under the Guidelines of 33 to 41 months’ imprisonment. The court
then sentenced McClellan to thirty-six months’ imprisonment. The
government noted a timely appeal.
On appeal, the government contends that McClellan’s sentence
was unreasonable as a matter of law because the district court
erred in calculating the sentencing range under the Guidelines.
More specifically, the government posits that the court erred as a
matter of law when it concluded that it could only sentence
McClellan based on the twenty grams of methamphetamine he admitted
at trial that he possessed.
Following the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound
by the sentencing range prescribed by the Guidelines. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006); United
States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006); United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Post-Booker,
when reviewing a sentence, we must “determine whether the sentence
is within the statutorily prescribed range and is reasonable.”
3
Moreland, 437 F.3d at 433 (citation and internal quotation marks
omitted). In imposing a sentence post-Booker, sentencing courts
must:
(1) properly calculate the sentence range recommended by
the Sentencing Guidelines; (2) determine whether a
sentence within that range and within statutory limits
serves the factors set forth in § 3553(a) and, if not,
select a sentence that does serve those factors; (3)
implement mandatory statutory limitations; and (4)
articulate the reasons for selecting the particular
sentence, especially explaining why a sentence outside of
the Sentencing Guideline range better serves the relevant
sentencing purposes set forth in § 3553(a).
Green, 436 F.3d at 456 (citation and internal footnote omitted).
Under Green, a sentence imposed within the sentencing range
calculated under the Guidelines is “presumptively reasonable.” Id.
at 457 (citation and internal quotation marks omitted). If the
sentence deviates from the sentencing range, we must determine
whether, in light of the factors set forth in § 3553(a) and the
relevant provisions of the Guidelines, the district court “acted
reasonably with respect to (1) the imposition of a variance
sentence, and (2) the extent of the variance.” Moreland, 437 F.3d
at 434.
Moreover, a post-Booker sentence may be unreasonable for both
procedural and substantive reasons. “A sentence may be
procedurally unreasonable, for example, if the district court
provides an inadequate statement of reasons or fails to make a
necessary factual finding. A sentence may be substantively
unreasonable if the court relies on an improper factor or rejects
4
policies articulated by Congress or the Sentencing Commission.”
Id.
In this case, the district court plainly stated on the record
that it was limited to sentencing McClellan based on the twenty
grams of methamphetamine he admitted at trial that he possessed.
According to the court, to sentence McClellan based on any other
amount would violate both Booker and McClellan’s Sixth Amendment
rights. Unquestionably, the district court’s sentencing approach
violates the dictates of Moreland, Green, and Hughes, which all
require the sentencing court first to calculate the defendant’s
sentencing range under the Guidelines. By failing to take the
imperative initial step of calculating McClellan’s sentence under
the Guidelines, using all methamphetamine amounts properly
attributable to McClellan under the Guidelines, the court erred as
a matter of law.* This error of law rendered the sentence imposed
*
Indeed, we have noted that, in sentencing a defendant post-
Booker, a sentencing court should apply a preponderance of the
evidence standard, taking into account that the resulting
sentencing range under the Guidelines is advisory only:
Booker does not in the end move any decision from judge
to jury, or change the burden of persuasion. The
remedial portion of Booker held that decisions about
sentencing factors will continue to be made by judges, on
the preponderance of the evidence, an approach that
comports with the [S]ixth [A]mendment so long as the
guideline system has some flexibility in application. As
a practical matter, then, [a defendant’s] sentence[]
would be determined in the same way if [he was] sentenced
today; the only change would be the degree of flexibility
judges would enjoy in applying the guideline system.
5
unreasonable. Cf. Green, 436 F.3d at 460 (“Because Green’s
sentence was imposed as the result of an incorrect application of
§ 4B1.1 of the Sentencing Guidelines, we vacate the sentence as
unreasonable and remand the case for further sentencing, consistent
with this opinion.”).
Accordingly, we vacate McClellan’s sentence and remand for
resentencing in compliance with Booker and its progeny. 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
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (citation
and internal quotation marks omitted).
6