UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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

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 

 

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.

 

1 The jury acquitted McClam of four robbery counts and four 

§ 924(c) counts.
3

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 
4

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 
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§ 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). 
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“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 
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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

 

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 

resulting in a Guidelines range of 235 to 293 months. 

(Continued)
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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. 
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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