UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4737
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LACEY LEROY MCCLAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-01277-TLW-1)
Submitted: October 7, 2010 Decided: March 17, 2011
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Lacey Leroy McClam, Jr., of armed
robbery, in violation of 18 U.S.C. § 1951(a) (2006), and
possession of a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C.A. § 924(c)(1)(A) (West Supp. 2010). 1
The district court sentenced McClam to a total of 276 months of
imprisonment. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning the sufficiency
of the evidence and the reasonableness of the sentence. McClam
has filed a pro se supplemental brief. The Government has moved
to remand for resentencing, and McClam does not object. We
affirm McClam’s convictions, grant the Government’s motion,
vacate the sentence, and remand for resentencing.
Counsel first questions whether the Government
presented evidence sufficient to sustain McClam’s convictions.
“A defendant challenging the sufficiency of the evidence faces a
heavy burden.” United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). We review a sufficiency of the evidence challenge
by determining “whether, after viewing the evidence in the light
1
The jury acquitted McClam of four robbery counts and four
§ 924(c) counts.
2
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005) (internal quotation marks omitted). This court
will uphold a jury’s verdict if substantial evidence supports
the verdict and will reverse only in those rare cases of clear
failure by the prosecution. Foster, 507 F.3d at 244-45. With
these standards in mind, we have reviewed the record on appeal
and conclude that the evidence was sufficient. See United
States v. Kingrea, 573 F.3d 186, 197 (4th Cir. 2009) (discussing
elements of aiding and abetting); United States v. Khan, 461
F.3d 477, 489 (4th Cir. 2006) (setting forth elements of
§ 924(c) possession offense); United States v. Williams, 342
F.3d 350, 353 (4th Cir. 2003) (stating elements of Hobbs Act
robbery).
Next, counsel suggests that the district court erred
by relying on acquitted and uncharged conduct to support an
upward departure and variance, and McClam asserts that the
district court procedurally erred when it included the
consecutive sentence on the § 924(c) count in establishing the
Guidelines range from which it departed and varied. We review a
sentence for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
3
review requires appellate consideration of both the procedural
and substantive reasonableness of a sentence. Id. In reviewing
a sentence outside the Guidelines range, this court must
“consider whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the [Guidelines]
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). We also must ensure that the district
court analyzed any arguments presented by the parties and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-51. If the sentence is procedurally sound, we review the
substantive reasonableness of the sentence, “taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51).
McClam’s counsel challenges the procedural
reasonableness of the sentence by questioning whether the
district court erroneously relied on uncharged and acquitted
conduct in departing upward pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3(a)(2)(E) (2007), or in applying the
factors in 18 U.S.C. § 3553(a) (2006), to vary from the
Guidelines range. In deciding whether to depart under
4
§ 4A1.3(a)(2), the court may consider “[p]rior similar adult
criminal conduct not resulting in a criminal conviction.” USSG
§ 4A1.3(a)(2)(E); see United States v. Grubbs, 585 F.3d 793, 799
(4th Cir. 2009), cert. denied, 130 S. Ct. 1923 (2010). The
district court found, by a preponderance of the evidence, that
an upward departure was warranted because McClam had
participated in numerous other robberies and shot two people
during the course of those robberies. We conclude that the
evidence amply supported the district court’s finding. See
United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010)
(stating standard of review); United States v. White, 552 F.3d
240, 253 (2d Cir. 2009) (same). Thus, the district court’s
reliance on uncharged and acquitted conduct to support its
decision to depart or vary was reasonable.
In his pro se brief, McClam asserts that the district
court violated USSG § 5G1.2(a) in establishing the Guidelines
range from which it departed or varied on the robbery count.
Because McClam did not object on this ground in the district
court, our review is for plain error. United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010). To establish plain error,
McClam “must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
5
“The decision to correct the error lies within our discretion,
and we exercise that discretion only if the error ‘seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 343 (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
Section 5G1.2(a) provides that:
[e]xcept as provided in subsection (e) [pertaining to
career offenders], the sentence to be imposed on a
count for which the statute (1) specifies a term of
imprisonment to be imposed; and (2) requires that such
term . . . be imposed to run consecutively to any
other term of imprisonment, shall be determined by
that statute and imposed independently.
USSG § 5G1.2(a). The commentary to the Guidelines specifically
lists § 924(c) as an example of a statute to which § 5G1.2(a)
applies. USSG § 5G1.2 cmt. n.2(A); see USSG § 3D1.1 & cmt. n.2
(providing that § 924(c) count excluded from grouping rules).
Thus, “[t]he Guidelines are unequivocal: a sentence that run[s]
consecutively to any other term of imprisonment[] shall be
determined by that statute and imposed independently.” United
States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007) (internal
quotation marks omitted).
In sentencing McClam, the district court conflated the
properly calculated Guidelines range of forty-six to fifty-seven
months on the robbery count and the statutory mandatory minimum
consecutive eighty-four-month sentence on the § 924(c) count and
6
established a Guidelines range of 130 to 141 months as its
starting point for a departure or variance. Because the
district court violated § 5G1.2(a) by failing to impose
independently the sentence on the § 924(c) count, we conclude
that the district court erred and that the error is plain. See
Hatcher, 501 F.3d at 934 (“[A] mandatory consecutive sentence
under . . . § 924(c) is an improper factor to consider in making
a departure, or fashioning the extent of a departure.”)
(internal quotation marks omitted).
Moreover, we hold that the court’s plain error
affected McClam’s substantial rights. From the 130-to-141-month
range, the court departed upward six offense levels under USSG
§ 4A1.3, 2 resulting in a Guidelines range of 235 to 293 months.
2
The district court departed by increasing McClam’s offense
level based on the court’s conclusion that McClam’s criminal
history score under-represented the seriousness of his criminal
history. The manner in which the court departed also was
erroneous. If a defendant, like McClam, is not in the highest
criminal history category, a district court must move
horizontally across successive criminal history categories up to
category VI, and, if the court concludes that category VI is
inadequate, the court then must move vertically to successively
higher offense levels until it finds an appropriate Guidelines
range. USSG § 4A1.3(a)(4); United States v. Dalton, 477 F.3d
195, 199 (4th Cir. 2007) (explaining incremental approach and
sentencing court’s obligation to state its basis for departing);
see also United States v. Gutierrez-Hernandez, 581 F.3d 251, 254
(5th Cir. 2009) (“A departure based on the inadequacy of
(Continued)
7
Had the district court excluded the consecutive eighty-four
months, as required by § 5G1.2(a), the six-level departure would
have resulted in a Guidelines range of 87 to 108 months for the
robbery count. Adding the eighty-four-month consecutive
sentence on the § 924(c) conviction, McClam’s total Guidelines
range for both counts would have been 171 to 192 months — a
range significantly below the 276-month sentence McClam
received. We therefore exercise our discretion to notice the
procedural error in establishing the starting point for the
departure or variance. 3
In accordance with Anders, we have reviewed the entire
record in this case and have found other no meritorious issues
criminal history is not made by adjusting the factor that
accounts for the offense level of the instant crime.”).
3
We note that we have affirmed a sentence as procedurally
reasonable even though the district court may have erred in
applying a departure provision of the Guidelines where “the
district court adequately explained its sentence on alternative
grounds supporting a variance, by reference to the 18 U.S.C.
§ 3553(a) factors.” Grubbs, 585 F.3d at 804. However, we
cannot do so here. Although the district court’s decision to
vary based upon uncharged and acquitted conduct was reasonable
and the court tied the extent of the variance to the § 3553(a)
factors, see Gall, 552 U.S. at 50-51, McClam’s sentence
nevertheless is procedurally unreasonable because the district
court varied from an incorrect starting point.
8
for appeal. We therefore affirm McClam’s convictions, grant the
Government’s motion to remand, vacate the sentence, and remand
for resentencing. On remand, should the district court depart
or vary on the robbery count, it should begin at the properly
calculated total offense level of twenty-two and criminal
history category of II. We express no opinion on the ultimate
sentence McClam may receive on remand.
This court requires that counsel inform McClam, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McClam requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on McClam. 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 IN PART,
VACATED IN PART,
AND REMANDED
9