UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP ALLEN MCGEE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cr-00053-CCE-1)
Submitted: September 20, 2016 Decided: October 5, 2016
Before GREGORY, Chief Judge, and WILKINSON and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Clifton Thomas Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Allen McGee pled guilty, pursuant to a written plea
agreement, to conspiracy to manufacture methamphetamine, in
violation of 21 U.S.C. § 846 (2012). The district court
sentenced McGee to 234 months’ imprisonment — a sentence below
the advisory Sentencing Guidelines range. In accordance with
Anders v. California, 386 U.S. 738 (1967), McGee’s counsel has
filed a brief certifying there are no meritorious grounds for
appeal but questioning whether the district court erred in
applying two sentencing enhancements and whether McGee’s
sentence is substantively reasonable. We affirm the district
court’s judgment.
We review a defendant’s sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In
reviewing a district court’s decision to apply a sentencing
enhancement, “[w]e accord due deference to a district court’s
application of the sentencing guidelines.” United States v.
Steffen, 741 F.3d 411, 414 (4th Cir. 2013). We review the
district court’s factual determinations for clear error. Id.
However, “if the issue turns primarily on the legal
interpretation of a guideline term, the standard moves closer to
de novo review.” Id. (alterations and internal quotation marks
omitted).
2
The district court imposed a two-level enhancement pursuant
to U.S. Sentencing Guidelines Manual § 2D1.1(b)(13)(A) (2014),
concluding that “the offense involved (i) an unlawful discharge,
emission, or release into the environment of a hazardous or
toxic substance; or (ii) the unlawful transportation, treatment,
storage, or disposal of a hazardous waste.” For the enhancement
to apply, the defendant’s conduct must violate one of several
environmental statutes, including the Resource Conservation and
Recovery Act, see 42 U.S.C. § 6928(d) (2012). 1 USSG § 2D1.1 cmt.
n.18. McGee asserts that the district court erred in applying
this enhancement.
We disagree. The district court heard testimony regarding
the hazardous characteristics of the chemicals used to
manufacture methamphetamine. 2 The district court also heard
testimony that McGee travelled in a vehicle while manufacturing
methamphetamine and that he disposed of the byproduct by
littering and by burning it in a barrel. These chemicals and
1Guidelines commentary that “interprets or explains a
guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).
2Although McGee questions the district court’s
qualification of the witness as an expert in hazardous waste
disposal, the Federal Rules of Evidence do not apply at
sentencing. Fed. R. Evid. 1101(d)(3); see United States v.
Powell, 650 F.3d 388, 392 (4th Cir. 2011).
3
byproducts all had the potential to cause serious harm to human
health or the environment when handled improperly. See
42 U.S.C. § 6903(5) (2012). Thus, the district court properly
applied the § 2D1.1(b)(13)(A) enhancement.
Counsel next questions whether the district court properly
applied a four-level enhancement for McGee’s role as an
organizer or leader of the conspiracy. A defendant qualifies
for a four-level enhancement to his offense level if he “was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” USSG § 3B1.1(a)
& cmt. n.4. The district court’s determination that a defendant
was an organizer or leader is a factual matter reviewed for
clear error. United States v. Thorson, 633 F.3d 312, 317 (4th
Cir. 2011).
Here, McGee introduced the “one-pot” method of
manufacturing methamphetamine to the conspiracy’s geographical
area. Although the district court observed that this conspiracy
might not have been a typical drug conspiracy, the fact remains
that McGee was at the center of a large organization, taught
several individuals how to manufacture methamphetamine, and had
several individuals purchase pseudoephedrine and sell
methamphetamine for him. We therefore conclude that the
district court did not clearly err in finding that McGee acted
as a leader or organizer of this conspiracy.
4
Finally, counsel questions whether McGee’s below-Guidelines
sentence is substantively reasonable. If a sentence is free of
“significant procedural error,” as is the case here, we review
it for substantive reasonableness, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. “Any
sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a
presumption can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” Id. We conclude that McGee has failed to overcome
the presumption of reasonableness accorded his below-Guidelines
sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform McGee, in writing, of
the right to petition the Supreme Court of the United States for
further review. If McGee 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 McGee.
5
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
6