United States v. McCallister

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4136

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

STEVEN D. MCCALLISTER,

Defendant – Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:08-cr-00120-1)

Submitted: September 9, 2009 Decided: October 9, 2009

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Lisa G. Johnston, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Steven D. McCallister pled guilty without a plea

agreement to unlawful possession of ammunition by a convicted

felon in violation of 18 U.S.C. § 922(g)(1) (2006). The

district court determined that McCallister falsely told the

probation officer that the ammunition belonged to a friend, and

maintained that position throughout sentencing, in an attempt to

obtain a lower sentence. The court therefore denied

McCallister’s request for a downward variance and instead

imposed a seventy-five-month sentence, a variance above the

guideline range of 51-63 months. McCallister appeals his

sentence, contending that the district court committed

significant procedural error by increasing his sentence without

sufficient explanation and failed to consider either the 18

U.S.C. § 3553(a) (2006) factors or the need to avoid sentencing

disparity. We affirm.

The ammunition was found in McCallister’s car when he

was arrested for a parole violation. McCallister’s girlfriend,

Teddi Rose, testified before the grand jury that she saw the

ammunition in the car that day and asked McCallister about it,

and that he said he was going to sell it to a friend. In his

interview with the probation officer, McCallister stated that

the ammunition did not belong to him and that he intended to

return it to the owner. At sentencing, McCallister requested a

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downward variance from the advisory guideline range of 51-63

months to a sentence of probation or a minimal term of

imprisonment. During the first sentencing hearing, the district

court adopted the presentence report and indicated that it would

be inclined to vary below the guideline range if McCallister’s

disclaimer of ownership were true, but was concerned about the

discrepancy between his statement and Rose’s testimony. The

court continued sentencing to allow the government to produce

Rose as a witness and to allow McCallister to cross-examine her.

The court warned McCallister that, if it should find that he had

“frivolously contested this relevant conduct . . . he could

certainly suffer consequences as a result[.]”

After Rose testified at the second sentencing hearing,

the court found that her testimony was more credible than

McCallister’s statement. The court found that McCallister

“knowingly attempted to get this court to sentence [him] at a

lower range by providing essentially a false story.” The court

told McCallister that “[i]f someone takes [the] position that

you’ve taken in the proceeding . . . back in December, and again

today, and I believe it was falsely done, I think you have

earned [an] additional penalty.” The court declined to vary

downward as McCallister had requested, and instead imposed a

variance sentence above the guideline range, noting that the

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increase to a seventy-five-month term was the equivalent of a

two-level increase in his offense level.

Appellate courts review a sentence for reasonableness,

applying an abuse of discretion standard, whether the sentence

is inside or outside the guideline range. Gall v. United

States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). First, we

must “ensure that the district court committed no significant

procedural error, such as . . . improperly calculating the

Guidelines range.” Id. at 597; United States v. Osborne,

514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525

(2008). Procedural errors also include “failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence.” Gall, 128 S. Ct. at 597. Further, a district court

must provide an “individualized assessment” based upon the

specific facts before it. “That is, the sentencing court must

apply the relevant § 3553(a) factors to the specific

circumstances of the case before it.” Id. at 598. “Such

individualized treatment is necessary ‘to consider every

convicted person as an individual and every case as a unique

study in the human failings that sometimes mitigate, sometimes

magnify, the crime and the punishment to ensue.’” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting

Gall, 128 S. Ct. at 597-98). In so doing, the district court

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must “‘set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and has a reasoned basis

for exercising his own legal decisionmaking authority.’” Id.

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

Only after determining that no significant procedural

error occurred will we review the substantive reasonableness of

the sentence, “taking into account the ‘totality of the

circumstances, including the extent of any variance from the

[g]uidelines range.’” United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597).

McCallister maintains that the district court

procedurally erred by failing to make the necessary findings to

support a two-level increase under U.S. Sentencing Guidelines

Manual § 3C1.1 (Obstruction of Justice) (2008), without giving

him notice of the facts warranting the enhancement and an

opportunity to refute them. The district court was not required

to give notice before imposing a variance sentence, as it did,

rather than making an adjustment for obstruction of justice.

Irizarry v. United States, 128 S. Ct. 2198, 2202-03 (2008)

(holding that upward variances do not require Fed. R. Crim. P.

32(h) notice). Nor would it have been required to give notice

before determining that an adjustment applied under the

sentencing guidelines. McCallister also argues that the court

failed to make a finding of the elements of perjury to justify

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the increase under United States v. Dunnigan, 507 U.S. 87, 94-95

(1993). Dunnigan does not apply because the increase was not

based on perjured testimony by McCallister, but rather on his

false statement to the probation officer.

However, McCallister’s conduct did warrant an

adjustment for obstruction of justice under § 3C1.1 based on the

district court’s finding that he knowingly and falsely told the

probation officer he did not own the ammunition found in his car

and persisted in that falsehood through two sentencing hearings

with the intention of obtaining a reduced sentence. Providing

materially false information to a probation officer with respect

to a presentence report, or to a judge, is conduct covered by

USSG § 3C1.1. See USSG § 3C1.1, comment. (n.4(f), (h)).

Material information, as used in § 3C1.1, means “information

that, if believed, would tend to influence or affect the issue

under determination.” USSG § 3C1.1, comment. (n.6); United

States v. Gormley, 201 F.3d 290, 294-95 (4th Cir. 2000).

McCallister’s false information was certainly material. The

district court explicitly stated that it would have been

inclined to vary below the guideline range if, as McCallister

maintained, the ammunition in his car did not belong to him and

he intended to return it to the owner.

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If the defendant engaged in conduct that warrants an

adjustment, the sentencing court is obligated to make the

adjustment. United States v. Ashers, 968 F.2d 411, 414

(4th Cir. 1992). Because the district court did not give

McCallister an adjustment for obstruction of justice after

making findings that supported such an adjustment, the court did

not properly calculate the guideline range. The court thus

committed a significant procedural error. Gall, 128 S. Ct. at

597.

However, the error benefited McCallister. If the

court had given McCallister an adjustment for obstruction of

justice, it likely would not have given him an adjustment for

acceptance of responsibility because Application Note 4 to USSG

§ 3E1.1 provides that “conduct resulting in an enhancement under

§ 3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct.” A two-level

increase for obstruction of justice, without a three-level

reduction for acceptance of responsibility, would have resulted

in a total offense level of 22 and a guideline range of 84-105

months. The government has not raised the error on appeal.

Therefore, we are precluded from noticing it. Greenlaw v.

United States, 128 S. Ct. 2559 (2008) (holding that, when the

government has not appealed or cross-appealed, an appellate

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court may not increase a defendant’s sentence because of an

error that benefited the defendant).

McCallister also contends that the district court

erred in not discussing the § 3553(a) factors. The record

discloses that the district court did not refer to § 3553(a) at

either sentencing hearing. However, we conclude that the court

did consider and “apply the relevant § 3553(a) factors to the

specific circumstances of the case before it.” Carter, 564 F.3d

at 328 (quoting Gall, 128 S. Ct. at 598). The reasons

articulated by the district court for a given sentence need not

be “couched in the precise language of § 3553(a),” so long as

the “reasons can be matched to a factor appropriate for

consideration . . . and [are] clearly tied [to the defendant’s]

particular situation.” United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).

Here, the court was most concerned with the nature and

circumstances of the offense; that is, McCallister’s reason for

having ammunition in his car. The court indicated that, if

indeed the ammunition had been left there by his friend and he

intended to do nothing with it but return it to the owner, then

a downward variance might be warranted. On the other hand, if

McCallister intended to sell or trade the ammunition, a

guideline sentence would be appropriate. Ultimately, when the

court decided that McCallister had presented a false story to

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the court in an attempt to obtain a lower sentence, the court

focused on the characteristics of the defendant, that is, his

persistence in attempting to deceive the court, and on the need

to provide just punishment for the offense. The court explained

that, because McCallister was more than a passive possessor of

the ammunition, a downward variance not warranted, and his

attempt to deceive the court justified a sentence above the

guideline range, as calculated by the court.

The court also specifically considered McCallister’s

history in connection with his last argument, that the district

court refused to consider the lenient sentence imposed on rapper

Clifford Harris. McCallister’s contention is without merit

because McCallister has not established that the rapper was a

similarly situated defendant. The court explained to

McCallister that he was facing a longer sentence than many

defendants convicted of the same offense because of his serious

criminal history.

On balance, we conclude that the court did not commit

any significant procedural error in explaining its reasons for

the sentence chosen. Further, the sentence was substantively

reasonable because the upward variance punished McCallister to

the same extent that an adjustment for obstruction of justice

would have. In fact, as discussed above, in all likelihood the

sentence is shorter than it would have been had the court given

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McCallister an adjustment for obstruction of justice instead of

varying above the guideline range as calculated by the court.

For the reasons discussed, we affirm the sentence

imposed by the district court. 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.

AFFIRMED