UNPUBLISHED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, MICHAEL, 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Vacated and remanded by unpublished per curiam opinion.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,
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Unpublished opinions are not binding precedent in this circuit.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 of methamphetamine, in violation of 21 U.S.C.
§§ 841, 846 (2006). The jury further found, however, 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 finding. On this basis, the
district court found that McClellan’s offense level was 20,
yielding a sentencing range under 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 initial step of calculating McClellan’s sentence
under the advisory Sentencing Guidelines, using all
methamphetamine amounts properly attributable to him. See
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 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 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 sentencing
range was 121-151 months of imprisonment. 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 in applying the advisory
3
Guidelines. See United States v. McClellan, 257 F. App’x 654,
656 (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) (2006), which made the Sentencing Guidelines
mandatory, and 18 U.S.C. § 3742(e) (2006), which required
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
sentences are “reasonable.” Gall, 128 S. Ct. at 594. As the
Supreme Court has made clear, the “appellate ‘reasonableness’
review” required by Booker “merely asks whether the trial court
abused its discretion.” Rita v. United States, 127 S. Ct. 2456,
2465 (2007). Further “appellate review of the reasonableness of
a sentence focuses on whether the sentencing court abused its
4
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. Id. This starting point furthers Congress’
desire for efficient administration and consistency in
sentencing. After calculating the Sentencing Guidelines range,
the court must give each party an opportunity to argue for
whatever sentence they deem appropriate. Id.; see Kimbrough v.
United States, 128 S. Ct. 558, 569 (2007). 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. Pauley, 511 F.3d at 473; see Gall, 128 S. Ct. at
596. If the sentencing court decides to sentence a defendant
outside the Guidelines sentencing range, it must consider the
extent of the deviation to ensure that the justification is
sufficiently compelling to support the degree of variance.
Pauley, 511 F.3d at 473. As noted by the Gall Court, a major
departure should be supported by a more significant
justification than a minor one. Gall, 128 S. Ct. at 596;
Pauley, 511 F.3d at 473.
Accordingly, we vacate and remand McClellan’s sentence
for resentencing in light of the Supreme Court’s opinion in
5
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
6