UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4799

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EDWARD MCLEAN, JR.,

Defendant - Appellant.

No. 05-4821

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PAUL ZIMMERMAN,

Defendant - Appellant.

No. 05-4924

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
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DEBBIE ZIMMERMAN,

Defendant - Appellant.

Appeals from the United States District Court for the Western

District of North Carolina, at Charlotte. Lacy H. Thornburg,

District Judge. (CR-02-156)

Submitted: June 30, 2006 Decided: July 31, 2006

 

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lawrence W. Hewitt, JAMES, MCELROY & DIEHL, P.A., Charlotte, North

Carolina; Trevor M. Fuller, THE FULLER LAW FIRM, P.C., Charlotte,

North Carolina; Danielle B. Obiorah, Charlotte, North Carolina, for

Appellants. Gretchen C. F. Shappert, United States Attorney,

Michael E. Savage, Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

James Edward McLean, Jr., Paul Zimmerman and Debbie

Zimmerman appeal their sentences imposed upon resentencing. For

the reasons stated below, we affirm.

The Appellants were convicted by a jury for their

participation in a scheme to obtain millions of dollars by making

and selling fictitious mortgage notes to the Federal National

Mortgage Association (“Fannie Mae”) and the Government National

Mortgage Association (“Ginnie Mae”). The charges set forth in the

66-count indictment fell into eight groups: wire fraud to sell

fraudulent mortgages to Fannie Mae; wire fraud through the

transmission of false Department of Housing and Urban Development

(“HUD”) documents to secure Ginnie Mae mortgage securities;

submitting false statements in connection with the Ginnie Mae

scheme; making false entries on monthly status reports required by

HUD; making and passing false mortgage notes to influence HUD; bank

fraud against BB&T; money laundering; and conspiracy to commit the

above-mentioned substantive offenses. 

 McLean was convicted of all sixty-six counts. Based on

a total offense level of thirty-seven and a criminal history

category of II, McLean’s sentencing guidelines range was 235 to 293

months’ imprisonment. The district court initially sentenced

McLean to 252 months’ imprisonment.
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Paul and Debbie Zimmerman were convicted of conspiracy to

defraud the United States and of passing to HUD false mortgage

notes dated after February 1, 2000. For both Zimmermans, the

statutory maximum for the conspiracy charge was five years, see 18

U.S.C. § 371 (2000), and the statutory maximum for counts fortyseven, fifty-one and fifty-two (the money laundering charges) was

two years for each count, see 18 U.S.C. § 1010 (2000), leaving a

combined statutory maximum of 132 months’ imprisonment. Because

132 months is less than the low end of each of the guidelines

ranges (168 months for Paul Zimmerman; 135 months for Debbie

Zimmerman), the guidelines sentences were reduced to 132 months’

imprisonment pursuant to U.S. Sentencing Guidelines Manual

§ 5G1.1(a) (1998). The district court imposed the statutory

maximum for each count. On appeal, we affirmed Appellants’

convictions, but vacated their sentences in light of United States

v. Booker, 543 U.S. 220 (2005), and remanded for resentencing. See

United States v. McLean, 131 F. App’x 34 (4th Cir. 2005).

On remand, McLean and Paul Zimmerman received the same

sentences as previously imposed. The district court sentenced

Debbie Zimmerman to 120 months’ imprisonment, which amounted to a

twelve-month reduction from her previous sentence. On appeal,

Appellants argue that their sentences are unreasonable under United

States v. Booker, 543 U.S. 220 (2005).
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After Booker, a sentencing court is no longer bound by

the range prescribed by the sentencing guidelines. See United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in

determining a sentence post-Booker, sentencing courts are still

required to calculate and consider the guideline range prescribed

thereby as well as the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2006). Id. This court will affirm a

post-Booker sentence if it is both reasonable and within the

statutorily prescribed range. Id. at 546-47; see also United

States v. Green, 436 F.3d 449, 457 (4th Cir.) (stating a sentence

imposed within a properly calculated guideline range is

presumptively reasonable), cert. denied, 126 S. Ct. 2309 (2006).

When reviewing the district court’s application of the sentencing

guidelines, this court reviews findings of fact for clear error and

questions of law de novo. Green, 436 F.3d at 456. A sentence is

unreasonable if based on an error in construing or applying the

sentencing guidelines. Id. at 456-57. 

Moreover, reasonableness review involves both procedural

and substantive components. United States v. Moreland, 437 F.3d

424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). When

conducting reasonableness scrutiny, we note two considerations.

First, although a sentence may be procedurally unreasonable if the

district court provides an inadequate statement of reasons or fails

to make a necessary factual finding, a district court need not
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“robotically tick through § 3553(a)’s every subsection.” United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). Second,

although a sentence may be substantively unreasonable if the court

relies on an improper factor or rejects policies articulated by

Congress or the Sentencing Commission, see Moreland, 437 F.3d at

434, “excessive weight” may not be given to any one § 3553 factor.

See United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir. 2006).

Applying the above principles, we cannot find that the sentences

imposed after remand were unreasonable.

We therefore affirm Appellants’ sentences. 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