                                                         [DO NOT PUBLISH]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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