United States v. Malcolm E. McVay

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11264 September 19, 2008
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00195 CR-2-IPJ-JGD
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MALCOM E. MCVAY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(September 19, 2008)
Before DUBINA, HULL and FAY, Circuit Judges.
PER CURIAM:
This is the second time we have considered an appeal in this case. In our
first decision, United States v. McVay, 447 F.3d 1348 (11th Cir. 2006), we vacated
McVay’s 60-month probationary sentence and remanded the case for resentencing.
(“McVay I”). On remand, the district court again imposed a 60-month
probationary sentence, and the government appealed.
It is important to recognize that the government is not challenging in this
appeal the district court’s advisory guideline calculation (as was done in McVay I),
or its imposition of a U.S.S.G. § 5K1.1 departure. In fact, the government
concedes that the district court fully complied with the law in this circuit in both
regards. The government’s challenge in this case is limited to the reasonableness
of the sentence the district court imposed. In light of the factors enumerated in 18
U.S.C. § 3553(a), including the seriousness of the offense, the need to promote
respect for the law, and the need for just punishment, a non-custodial sentence for
a key participant in a corporate fraud that exceeded a loss of a billion dollars and
left victims too numerous to be counted is, argued by the government,
unreasonable. We agree.
After considering what the Supreme Court said in Gall v. United States, 128
S. Ct. 586 (2007), and after reviewing what the district court did on resentencing
in this case, we conclude that the district court abused its discretion when it
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wholly failed to consider, among other things, the seriousness and full
implications of McVay’s criminal conduct.
A sentence of probation for a high-ranking officer in a corporation where
over a billion dollars of fraud was perpetrated on an unsuspecting work force and
investing public is not reasonable, given the criteria found in § 3553(a) for
determining an appropriate sentence. Probation does not account for the
seriousness of McVay’s conduct. It does not punish him sufficiently. It does not
deter the defendant’s future misconduct. It does not deter other similarly situated
individuals from engaging in criminal conduct. It does nothing to encourage
respect for the court system in this country. Post-Gall, a district court need not
justify an extraordinary departure with extraordinary reasons, but it must still
provide a compelling justification for the sentence it selects. In our view, that was
not done in this case. We once again vacate McVay’s sentence and remand this
case for resentencing.
VACATED and REMANDED.
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