UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 06-5101

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant, 

 v. 

STEPHEN DALE MCCLELLAN, 

 Defendant - Appellee. 

On Remand from the Supreme Court of the United States. 

(S. Ct. No. 07-1154) 

Submitted: January 29, 2009 Decided: April 3, 2009

Before WILLIAMS, Chief Judge, MICHAEL, Circuit Judge, and 

HAMILTON, Senior Circuit Judge. 

Vacated and remanded by unpublished per curiam opinion. 

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

North Carolina; Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellant. R. Deke Falls, 

BARNETT & FALLS, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Stephen Dale McClellan was found guilty by a jury of 

conspiracy to possess with the intent to distribute in excess of 

1.5 kilograms of methamphetamine, in violation of 21 U.S.C. 

§§ 841, 846 (2006). The jury further found, however, that 

McClellan did not know and could not have reasonably foreseen 

the involvement of at least 1.5 kilograms of methamphetamine. 

At the original sentencing hearing, the district court 

determined that it could only sentence McClellan based on the 

twenty grams of methamphetamine he admitted at trial, in light 

of the jury’s special verdict finding. On this basis, the 

district court found that McClellan’s offense level was 20, 

yielding a sentencing range under the advisory Sentencing 

Guidelines of thirty-three to forty-one months of imprisonment. 

McClellan was sentenced to thirty-six months of imprisonment. 

 On appeal, we vacated McClellan’s sentence and 

remanded the case for resentencing because we found that the 

district court erred as a matter of law by failing to take the 

imperative initial step of calculating McClellan’s sentence 

under the advisory Sentencing Guidelines, using all 

methamphetamine amounts properly attributable to him. See

United States v. McClellan, 182 F. App’x 224, 226-27 (4th Cir. 

2006) (“McClellan I”). 

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 On remand, the district court again stated its belief 

that it could apply the advisory Guidelines using only the drug 

quantity McClellan admitted at trial. On that basis, the 

district court entered an “Amended Judgment” imposing the 

original thirty-six-month sentence. In addition, in recognition 

of our mandate on remand, the district court examined the record 

and found that McClellan knew, understood, and foresaw the 

involvement of the conspiracy of at least 500 grams of the drug, 

that such a finding supported an offense level of 32, and, that 

with his criminal history category of I, McClellan’s sentencing 

range was 121-151 months of imprisonment. The district court, 

after considering 18 U.S.C. § 3553(a) (2006), ordered a sentence 

of 121 months of imprisonment as memorialized in an “Alternative 

Amended Judgment.” 

 On appeal, we vacated and remanded again, noting that 

a district court imposing a sentence after the Supreme Court’s 

decision in United States v. Booker, 543 U.S. 220, 261-62 

(2005), must: (1) properly calculate the Sentencing Guidelines 

range; (2) determine whether a sentence within that range serves 

the factors under 18 U.S.C. § 3553(a); (3) implement mandatory 

statutory limitations; and (4) explain its reasons for selecting 

a sentence, especially a sentence outside the range. We 

instructed the district court on remand to make the appropriate 

findings regarding drug quantity in applying the advisory 

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Guidelines. See United States v. McClellan, 257 F. App’x 654, 

656 (4th Cir. 2007) (“McClellan II”), vacated, 129 S. Ct. 33 

(2008) (No. 07-1154). 

 The Supreme Court, however, granted a petition for 

writ of certiorari, vacated our judgment in McClellan II, and 

remanded the case to this court for further consideration in 

light of Gall v. United States, 128 S. Ct. 586 (2007). We note 

that Gall issued on the same day as our opinion in McClellan II. 

Thus, the district court did not have the benefit of Gall when 

it resentenced McClellan. 

 In Booker the Supreme Court invalidated both 18 U.S.C. 

§ 3553(b)(1) (2006), which made the Sentencing Guidelines 

mandatory, and 18 U.S.C. § 3742(e) (2006), which required 

appellate courts to conduct a de novo review of departures from 

the Guidelines. 543 U.S. at 260-62. As a result of Booker, the 

Guidelines are now advisory, and appellate courts are limited to 

reviewing sentencing decisions to determine whether such 

sentences are “reasonable.” Gall, 128 S. Ct. at 594. As the 

Supreme Court has made clear, the “appellate ‘reasonableness’ 

review” required by Booker “merely asks whether the trial court 

abused its discretion.” Rita v. United States, 127 S. Ct. 2456, 

2465 (2007). Further “appellate review of the reasonableness of 

a sentence focuses on whether the sentencing court abused its 

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discretion in imposing the chosen sentence.” United States v. 

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 

 As we noted in Pauley, the Gall opinion instructed 

that a sentencing court should first calculate the applicable 

Guidelines range. Id. This starting point furthers Congress’ 

desire for efficient administration and consistency in 

sentencing. After calculating the Sentencing Guidelines range, 

the court must give each party an opportunity to argue for 

whatever sentence they deem appropriate. Id.; see Kimbrough v. 

United States, 128 S. Ct. 558, 569 (2007). The sentencing court 

must then consider all of the § 3553(a) factors to determine if 

they support the sentence requested by either party. In so 

doing, the district court may not presume the Guidelines range 

is reasonable. Pauley, 511 F.3d at 473; see Gall, 128 S. Ct. at 

596. If the sentencing court decides to sentence a defendant 

outside the Guidelines sentencing range, it must consider the 

extent of the deviation to ensure that the justification is 

sufficiently compelling to support the degree of variance. 

Pauley, 511 F.3d at 473. As noted by the Gall Court, a major 

departure should be supported by a more significant 

justification than a minor one. Gall, 128 S. Ct. at 596; 

Pauley, 511 F.3d at 473. 

 Accordingly, we vacate and remand McClellan’s sentence 

for resentencing in light of the Supreme Court’s opinion in 

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Gall, and this court’s opinions applying Gall and related 

authority. See, e.g., Pauley, 511 F.3d at 473-76. 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. 

VACATED AND REMANDED