                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4737


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LACEY LEROY MCCLAM, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-01277-TLW-1)


Submitted:   October 7, 2010                 Decided:   March 17, 2011


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant.    Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           A jury convicted Lacey Leroy McClam, Jr., of armed

robbery,   in   violation      of    18    U.S.C.    §   1951(a)    (2006),   and

possession of a firearm in furtherance of a crime of violence,

in violation of 18 U.S.C.A. § 924(c)(1)(A) (West Supp. 2010). 1

The district court sentenced McClam to a total of 276 months of

imprisonment.    Counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious grounds for appeal but questioning the sufficiency

of the evidence and the reasonableness of the sentence.                  McClam

has filed a pro se supplemental brief.               The Government has moved

to remand for resentencing, and McClam does not object.                       We

affirm   McClam’s    convictions,         grant   the    Government’s   motion,

vacate the sentence, and remand for resentencing.

           Counsel     first        questions       whether   the     Government

presented evidence sufficient to sustain McClam’s convictions.

“A defendant challenging the sufficiency of the evidence faces a

heavy burden.”      United States v. Foster, 507 F.3d 233, 245 (4th

Cir. 2007).     We review a sufficiency of the evidence challenge

by determining “whether, after viewing the evidence in the light


     1
       The jury acquitted McClam of four robbery counts and four
§ 924(c) counts.



                                          2
most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.”            United States v. Collins, 412 F.3d 515, 519

(4th Cir. 2005) (internal quotation marks omitted).                          This court

will uphold a jury’s verdict if substantial evidence supports

the verdict and will reverse only in those rare cases of clear

failure by the prosecution.                  Foster, 507 F.3d at 244-45.              With

these standards in mind, we have reviewed the record on appeal

and    conclude       that    the    evidence     was   sufficient.          See   United

States v. Kingrea, 573 F.3d 186, 197 (4th Cir. 2009) (discussing

elements of aiding and abetting); United States v. Khan, 461

F.3d    477,    489     (4th       Cir.   2006)    (setting      forth      elements    of

§ 924(c)    possession         offense);      United    States    v.     Williams,      342

F.3d 350, 353 (4th Cir. 2003) (stating elements of Hobbs Act

robbery).

            Next, counsel suggests that the district court erred

by    relying    on    acquitted       and   uncharged       conduct   to    support    an

upward    departure          and    variance,     and   McClam    asserts      that     the

district       court     procedurally           erred    when    it      included      the

consecutive sentence on the § 924(c) count in establishing the

Guidelines range from which it departed and varied.                         We review a

sentence       for     reasonableness         under     an    abuse    of    discretion

standard.       Gall v. United States, 552 U.S. 38, 51 (2007).                         This

                                              3
review requires appellate consideration of both the procedural

and substantive reasonableness of a sentence.                         Id.        In reviewing

a   sentence     outside      the       Guidelines         range,     this        court    must

“consider    whether       the    sentencing         court    acted        reasonably       both

with respect to its decision to impose such a sentence and with

respect to the extent of the divergence from the [Guidelines]

range.”      United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).              We also must ensure that the district

court    analyzed     any    arguments         presented        by    the        parties     and

sufficiently explained the selected sentence.                         Gall, 552 U.S. at

49-51.     If the sentence is procedurally sound, we review the

substantive reasonableness of the sentence, “taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’”                       United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).

            McClam’s         counsel               challenges         the          procedural

reasonableness        of    the       sentence       by    questioning           whether     the

district    court     erroneously        relied       on    uncharged        and    acquitted

conduct     in    departing           upward       pursuant     to        U.S.     Sentencing

Guidelines Manual § 4A1.3(a)(2)(E) (2007), or in applying the

factors    in    18   U.S.C.      §     3553(a)       (2006),        to    vary     from     the

Guidelines       range.          In     deciding          whether     to     depart        under

                                               4
§ 4A1.3(a)(2),        the    court    may     consider     “[p]rior       similar    adult

criminal conduct not resulting in a criminal conviction.”                            USSG

§ 4A1.3(a)(2)(E); see United States v. Grubbs, 585 F.3d 793, 799

(4th Cir. 2009), cert. denied, 130 S. Ct. 1923 (2010).                                 The

district court found, by a preponderance of the evidence, that

an   upward        departure         was     warranted       because       McClam      had

participated in numerous other robberies and shot two people

during the course of those robberies.                        We conclude that the

evidence      amply    supported      the     district     court’s     finding.        See

United   States       v.    Llamas,    599    F.3d   381,    387    (4th     Cir.    2010)

(stating standard of review); United States v. White, 552 F.3d

240, 253 (2d Cir. 2009) (same).                      Thus, the district court’s

reliance      on   uncharged     and       acquitted      conduct    to    support    its

decision to depart or vary was reasonable.

              In his pro se brief, McClam asserts that the district

court violated USSG § 5G1.2(a) in establishing the Guidelines

range from which it departed or varied on the robbery count.

Because McClam did not object on this ground in the district

court, our review is for plain error.                      United States v. Lynn,

592 F.3d 572, 577 (4th Cir. 2010).                       To establish plain error,

McClam “must show: (1) an error was made; (2) the error is

plain; and (3) the error affects substantial rights.”                               United

States   v.    Massenburg,      564        F.3d   337,    342-43    (4th    Cir.    2009).

                                              5
“The decision to correct the error lies within our discretion,

and we exercise that discretion only if the error ‘seriously

affects the fairness, integrity or public reputation of judicial

proceedings.’”    Id. at 343 (quoting United States v. Olano, 507

U.S. 725, 732 (1993)).

           Section 5G1.2(a) provides that:

     [e]xcept as provided in subsection (e) [pertaining to
     career offenders], the sentence to be imposed on a
     count for which the statute (1) specifies a term of
     imprisonment to be imposed; and (2) requires that such
     term . . . be imposed to run consecutively to any
     other term of imprisonment, shall be determined by
     that statute and imposed independently.

USSG § 5G1.2(a).      The commentary to the Guidelines specifically

lists § 924(c) as an example of a statute to which § 5G1.2(a)

applies.   USSG § 5G1.2 cmt. n.2(A); see USSG § 3D1.1 & cmt. n.2

(providing that § 924(c) count excluded from grouping rules).

Thus, “[t]he Guidelines are unequivocal: a sentence that run[s]

consecutively    to   any   other   term   of   imprisonment[]   shall   be

determined by that statute and imposed independently.”             United

States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007) (internal

quotation marks omitted).

           In sentencing McClam, the district court conflated the

properly calculated Guidelines range of forty-six to fifty-seven

months on the robbery count and the statutory mandatory minimum

consecutive eighty-four-month sentence on the § 924(c) count and

                                     6
established   a    Guidelines    range      of    130       to     141     months    as   its

starting   point    for   a    departure         or    variance.             Because      the

district   court     violated     §    5G1.2(a)             by     failing     to    impose

independently the sentence on the § 924(c) count, we conclude

that the district court erred and that the error is plain.                                See

Hatcher, 501 F.3d at 934 (“[A] mandatory consecutive sentence

under . . . § 924(c) is an improper factor to consider in making

a   departure,     or   fashioning      the       extent           of    a   departure.”)

(internal quotation marks omitted).

           Moreover,      we    hold   that           the        court’s     plain    error

affected McClam’s substantial rights.                  From the 130-to-141-month

range, the court departed upward six offense levels under USSG

§ 4A1.3, 2 resulting in a Guidelines range of 235 to 293 months.




     2
       The district court departed by increasing McClam’s offense
level based on the court’s conclusion that McClam’s criminal
history score under-represented the seriousness of his criminal
history.    The manner in which the court departed also was
erroneous.   If a defendant, like McClam, is not in the highest
criminal   history   category,  a   district   court  must   move
horizontally across successive criminal history categories up to
category VI, and, if the court concludes that category VI is
inadequate, the court then must move vertically to successively
higher offense levels until it finds an appropriate Guidelines
range.   USSG § 4A1.3(a)(4); United States v. Dalton, 477 F.3d
195, 199 (4th Cir. 2007) (explaining incremental approach and
sentencing court’s obligation to state its basis for departing);
see also United States v. Gutierrez-Hernandez, 581 F.3d 251, 254
(5th Cir. 2009) (“A departure based on the inadequacy of
(Continued)

                                        7
Had   the   district    court    excluded        the   consecutive   eighty-four

months, as required by § 5G1.2(a), the six-level departure would

have resulted in a Guidelines range of 87 to 108 months for the

robbery     count.          Adding    the       eighty-four-month    consecutive

sentence on the § 924(c) conviction, McClam’s total Guidelines

range for both counts would have been 171 to 192 months — a

range     significantly       below    the        276-month   sentence     McClam

received.     We therefore exercise our discretion to notice the

procedural    error    in    establishing        the   starting   point   for   the

departure or variance. 3

            In accordance with Anders, we have reviewed the entire

record in this case and have found other no meritorious issues




criminal history is not made by adjusting the factor                            that
accounts for the offense level of the instant crime.”).
      3
       We note that we have affirmed a sentence as procedurally
reasonable even though the district court may have erred in
applying a departure provision of the Guidelines where “the
district court adequately explained its sentence on alternative
grounds supporting a variance, by reference to the 18 U.S.C.
§ 3553(a) factors.”    Grubbs, 585 F.3d at 804.     However, we
cannot do so here.    Although the district court’s decision to
vary based upon uncharged and acquitted conduct was reasonable
and the court tied the extent of the variance to the § 3553(a)
factors, see Gall, 552 U.S. at 50-51, McClam’s sentence
nevertheless is procedurally unreasonable because the district
court varied from an incorrect starting point.



                                            8
for appeal.      We therefore affirm McClam’s convictions, grant the

Government’s motion to remand, vacate the sentence, and remand

for resentencing.        On remand, should the district court depart

or vary on the robbery count, it should begin at the properly

calculated      total    offense      level   of    twenty-two      and     criminal

history category of II.            We express no opinion on the ultimate

sentence McClam may receive on remand.

           This    court    requires     that      counsel   inform      McClam,    in

writing,   of    the    right    to   petition     the   Supreme    Court    of    the

United States for further review.                  If McClam requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                   Counsel’s motion must

state that a copy thereof was served on McClam.                          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 IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




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