United States v. McLean

UNPUBLISHED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
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 forty-
seven, 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
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