United States v. McCallister

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4136
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN D. MCCALLISTER,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:08-cr-00120-1)
Submitted: September 9, 2009 Decided: October 9, 2009
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Lisa G. Johnston, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven D. McCallister pled guilty without a plea
agreement to unlawful possession of ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court determined that McCallister falsely told the
probation officer that the ammunition belonged to a friend, and
maintained that position throughout sentencing, in an attempt to
obtain a lower sentence. The court therefore denied
McCallister’s request for a downward variance and instead
imposed a seventy-five-month sentence, a variance above the
guideline range of 51-63 months. McCallister appeals his
sentence, contending that the district court committed
significant procedural error by increasing his sentence without
sufficient explanation and failed to consider either the 18
U.S.C. § 3553(a) (2006) factors or the need to avoid sentencing
disparity. We affirm.
The ammunition was found in McCallister’s car when he
was arrested for a parole violation. McCallister’s girlfriend,
Teddi Rose, testified before the grand jury that she saw the
ammunition in the car that day and asked McCallister about it,
and that he said he was going to sell it to a friend. In his
interview with the probation officer, McCallister stated that
the ammunition did not belong to him and that he intended to
return it to the owner. At sentencing, McCallister requested a
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downward variance from the advisory guideline range of 51-63
months to a sentence of probation or a minimal term of
imprisonment. During the first sentencing hearing, the district
court adopted the presentence report and indicated that it would
be inclined to vary below the guideline range if McCallister’s
disclaimer of ownership were true, but was concerned about the
discrepancy between his statement and Rose’s testimony. The
court continued sentencing to allow the government to produce
Rose as a witness and to allow McCallister to cross-examine her.
The court warned McCallister that, if it should find that he had
“frivolously contested this relevant conduct . . . he could
certainly suffer consequences as a result[.]”
After Rose testified at the second sentencing hearing,
the court found that her testimony was more credible than
McCallister’s statement. The court found that McCallister
“knowingly attempted to get this court to sentence [him] at a
lower range by providing essentially a false story.” The court
told McCallister that “[i]f someone takes [the] position that
you’ve taken in the proceeding . . . back in December, and again
today, and I believe it was falsely done, I think you have
earned [an] additional penalty.” The court declined to vary
downward as McCallister had requested, and instead imposed a
variance sentence above the guideline range, noting that the
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increase to a seventy-five-month term was the equivalent of a
two-level increase in his offense level.
Appellate courts review a sentence for reasonableness,
applying an abuse of discretion standard, whether the sentence
is inside or outside the guideline range. Gall v. United
States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). First, we
must “ensure that the district court committed no significant
procedural error, such as . . . improperly calculating the
Guidelines range.” Id. at 597; United States v. Osborne,
514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525(2008). Procedural errors also include “failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 128 S. Ct. at 597. Further, a district court
must provide an “individualized assessment” based upon the
specific facts before it. “That is, the sentencing court must
apply the relevant § 3553(a) factors to the specific
circumstances of the case before it.” Id. at 598. “Such
individualized treatment is necessary ‘to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.’” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting
Gall, 128 S. Ct. at 597-98). In so doing, the district court
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must “‘set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.’” Id.(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
Only after determining that no significant procedural
error occurred will we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597).
McCallister maintains that the district court
procedurally erred by failing to make the necessary findings to
support a two-level increase under U.S. Sentencing Guidelines
Manual § 3C1.1 (Obstruction of Justice) (2008), without giving
him notice of the facts warranting the enhancement and an
opportunity to refute them. The district court was not required
to give notice before imposing a variance sentence, as it did,
rather than making an adjustment for obstruction of justice.
Irizarry v. United States, 128 S. Ct. 2198, 2202-03 (2008)
(holding that upward variances do not require Fed. R. Crim. P.
32(h) notice). Nor would it have been required to give notice
before determining that an adjustment applied under the
sentencing guidelines. McCallister also argues that the court
failed to make a finding of the elements of perjury to justify
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the increase under United States v. Dunnigan, 507 U.S. 87, 94-95
(1993). Dunnigan does not apply because the increase was not
based on perjured testimony by McCallister, but rather on his
false statement to the probation officer.
However, McCallister’s conduct did warrant an
adjustment for obstruction of justice under § 3C1.1 based on the
district court’s finding that he knowingly and falsely told the
probation officer he did not own the ammunition found in his car
and persisted in that falsehood through two sentencing hearings
with the intention of obtaining a reduced sentence. Providing
materially false information to a probation officer with respect
to a presentence report, or to a judge, is conduct covered by
USSG § 3C1.1. See USSG § 3C1.1, comment. (n.4(f), (h)).
Material information, as used in § 3C1.1, means “information
that, if believed, would tend to influence or affect the issue
under determination.” USSG § 3C1.1, comment. (n.6); United
States v. Gormley, 201 F.3d 290, 294-95 (4th Cir. 2000).
McCallister’s false information was certainly material. The
district court explicitly stated that it would have been
inclined to vary below the guideline range if, as McCallister
maintained, the ammunition in his car did not belong to him and
he intended to return it to the owner.
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If the defendant engaged in conduct that warrants an
adjustment, the sentencing court is obligated to make the
adjustment. United States v. Ashers, 968 F.2d 411, 414
(4th Cir. 1992). Because the district court did not give
McCallister an adjustment for obstruction of justice after
making findings that supported such an adjustment, the court did
not properly calculate the guideline range. The court thus
committed a significant procedural error. Gall, 128 S. Ct. at
597.
However, the error benefited McCallister. If the
court had given McCallister an adjustment for obstruction of
justice, it likely would not have given him an adjustment for
acceptance of responsibility because Application Note 4 to USSG
§ 3E1.1 provides that “conduct resulting in an enhancement under
§ 3C1.1 . . . ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct.” A two-level
increase for obstruction of justice, without a three-level
reduction for acceptance of responsibility, would have resulted
in a total offense level of 22 and a guideline range of 84-105
months. The government has not raised the error on appeal.
Therefore, we are precluded from noticing it. Greenlaw v.
United States, 128 S. Ct. 2559 (2008) (holding that, when the
government has not appealed or cross-appealed, an appellate
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court may not increase a defendant’s sentence because of an
error that benefited the defendant).
McCallister also contends that the district court
erred in not discussing the § 3553(a) factors. The record
discloses that the district court did not refer to § 3553(a) at
either sentencing hearing. However, we conclude that the court
did consider and “apply the relevant § 3553(a) factors to the
specific circumstances of the case before it.” Carter, 564 F.3d
at 328 (quoting Gall, 128 S. Ct. at 598). The reasons
articulated by the district court for a given sentence need not
be “couched in the precise language of § 3553(a),” so long as
the “reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007).
Here, the court was most concerned with the nature and
circumstances of the offense; that is, McCallister’s reason for
having ammunition in his car. The court indicated that, if
indeed the ammunition had been left there by his friend and he
intended to do nothing with it but return it to the owner, then
a downward variance might be warranted. On the other hand, if
McCallister intended to sell or trade the ammunition, a
guideline sentence would be appropriate. Ultimately, when the
court decided that McCallister had presented a false story to
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the court in an attempt to obtain a lower sentence, the court
focused on the characteristics of the defendant, that is, his
persistence in attempting to deceive the court, and on the need
to provide just punishment for the offense. The court explained
that, because McCallister was more than a passive possessor of
the ammunition, a downward variance not warranted, and his
attempt to deceive the court justified a sentence above the
guideline range, as calculated by the court.
The court also specifically considered McCallister’s
history in connection with his last argument, that the district
court refused to consider the lenient sentence imposed on rapper
Clifford Harris. McCallister’s contention is without merit
because McCallister has not established that the rapper was a
similarly situated defendant. The court explained to
McCallister that he was facing a longer sentence than many
defendants convicted of the same offense because of his serious
criminal history.
On balance, we conclude that the court did not commit
any significant procedural error in explaining its reasons for
the sentence chosen. Further, the sentence was substantively
reasonable because the upward variance punished McCallister to
the same extent that an adjustment for obstruction of justice
would have. In fact, as discussed above, in all likelihood the
sentence is shorter than it would have been had the court given
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McCallister an adjustment for obstruction of justice instead of
varying above the guideline range as calculated by the court.
For the reasons discussed, we affirm the sentence
imposed by the district court. 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
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