United States v. Kenneth McClain ( 2019 )

Case: 18-10767 Document: 00514800422 Page: 1 Date Filed: 01/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-10767 January 17, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
KENNETH REVEN MCCLAIN, also known as Jessie, also known as Lonnie
Smith, also known as Roosevelt Hicks, also known as Corey Arness, also
known as Keith Perry, also known as Paul Linder,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-332-1
Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kenneth McClain was sentenced to 21-month imprisonment after
violating his supervised-release conditions. The revocation petition alleged two
Grade A and two Grade C violations. McClain contested all four and put the
government to its burden of proof. After hearing the evidence, the district court
found that McClain had committed only the Grade C violations. Yet
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-10767 Document: 00514800422 Page: 2 Date Filed: 01/17/2019
No. 18-10767
immediately after announcing this finding, it applied the Grade A sentencing
range. These two statements do not match.
“[U]nclear or ambiguous sentences must be vacated and remanded for
clarification.” United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006).
Accordingly, we vacate McClain’s revocation and sentence, and remand this
case to the district court to resolve the internal inconsistency in the oral
pronouncement and to reveal its true intent. See United States v. Thompson,
254 F. App’x 278, 280 (5th Cir. 2007) (per curiam) (remanding for resentencing
to resolve internal inconsistencies in the oral pronouncement of the sentence).
The sole issue on remand will be as follows: In addition to the Grade C
violations, does the district court find that—based on the evidence presented
at the previous revocation—McClain more likely than not committed the Grade
A violations while on supervised release? If yes, then the district court may use
the same sentencing range as before. 1 If no, then the court should use the
Grade C range and sentence McClain accordingly.
VACATED AND REMANDED.
1McClain also argues that the district court denied him his right to allocute. Though
we do not reach this issue, the district court should allow McClain a chance to allocute on
remand.
2