Vacated by Supreme Court, October 6, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5101
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. (1:04-cr-00074-5)
Submitted: November 28, 2007 Decided: December 10, 2007
Before WILLIAMS, Chief Judge, and WILKINS and HAMILTON, Senior
Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
This case is before the court a second time after a
remand to the district court for the resentencing of Stephen Dale
McClellan. The United States appeals the amended judgment imposing
a sentence of thirty-six months’ imprisonment, challenging the
district court’s calculation of McClellan’s sentencing range under
the Sentencing Guidelines. For the reasons that follow, we vacate
the district court’s amended judgment and remand the case for
resentencing in accordance with the district court’s alternative
amended judgment.
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, in violation of 21
U.S.C. §§ 841, 846 (West 1999 & Supp. 2007). 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. The jury further found
that 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 special verdict findings. On this basis, the district
court found that McClellan’s offense level was 20, yielding a
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sentencing range under the Guidelines of thirty-three to forty-one
months’ imprisonment. McClellan was sentenced to thirty-six
months’ imprisonment. The Government appealed.
We vacated McClellan’s sentence and remanded the case for
resentencing because, “[b]y 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.” United States v. McClellan, 182 F. App’x 224 (4th Cir. 2006)
(unpublished).
On remand, the district court again stated its belief
that it could apply the advisory guidelines only using the drug
quantity McClellan admitted at trial. On that basis, the district
court entered an “Amended Judgment” imposing the 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 in the amount of at least 500 grams.” That finding
supported an offense level of 32. See U.S. Sentencing Guidelines
Manual § 2D1.1(c)(4) (2004). With a criminal history category of
I, McClellan’s guidelines sentence range was 121-151 months’
imprisonment. The district court, “having considered the factors
noted in 18 U.S.C. § 3553(a),” ordered a sentence of 121 months’
imprisonment in the “Alternative Amended Judgment”.
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In imposing a sentence following the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220, 261-62 (2005),
a district court must (1) properly calculate the sentencing
guidelines range; (2) determine whether a sentence within that
range serves the factors under 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007); (3) implement mandatory statutory limitations; and
(4) explain its reasons for selecting a sentence, especially a
sentence outside the range. United States v. Green, 436 F.3d 449,
455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Under an advisory guidelines scheme, a district court
does not violate the Sixth Amendment by making factual findings as
to drug quantity by a preponderance of the evidence as long as the
fact-finding does not enhance the sentence beyond the maximum term
specified in the substantive statute. See United States v. Morris,
429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121
(2006).
On remand, we instructed the district court to make the
appropriate findings regarding drug quantity in applying the
advisory guidelines. The district court’s failure to do so, as
reflected in the amended judgment, again violated the dictates of
Moreland and Green. Accordingly, we vacate the amended judgment
and remand for resentencing in accordance with the district court’s
alternative amended judgment.
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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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