UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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).
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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 

 1 Guidelines 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). 

2 Although 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). 
4

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. 
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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.
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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