                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5005



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


STEPHEN DALE MCCLELLAN,

                                             Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-04-74)


Submitted:   May 11, 2006                   Decided:   May 25, 2006


Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellant.   R. Deke Falls, BARNETT & FALLS, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     The United States appeals the sentence imposed on Stephen Dale

McClellan, principally challenging the district court’s calculation

of McClellan’s sentencing range under the Guidelines.              For the

reasons that follow, we vacate the sentence and remand the case for

resentencing.

     On August 2, 2004, McClellan was charged along with six others

with conspiracy to possess with the intent to distribute in excess

of 1.5 kilograms of methamphetamine, 21 U.S.C. §§ 841 and 846.

Following a jury trial, McClellan was found guilty of the charged

offense.    By special verdict, the jury found that the conspiracy

involved    at   least   1.5   kilograms   of   methamphetamine   but   that

McClellan did not know and could not have reasonably foreseen the

involvement of at least 1.5 kilograms of methamphetamine.

     In preparation for sentencing, a presentence report (PSR) was

prepared.     In the PSR, the probation officer calculated a base

offense level of 34 based on a determination that the conspiracy

involved at least 1.5 kilograms of methamphetamine. A base offense

level of 34, coupled with a criminal history category of I,

produced a sentencing range under the Guidelines of 151 to 188

months’ imprisonment.

     At the sentencing hearing on August 31, 2005, the district

court determined that, in light of the jury’s special verdict

finding that McClellan did not know and could not have reasonably


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foreseen     the   involvement   of       at   least   1.5   kilograms    of

methamphetamine, the court could only sentence McClellan based on

the twenty grams of methamphetamine he admitted at trial that he

possessed.    Based on the court’s determination that McClellan was

responsible for twenty grams of methamphetamine, the court found

that McClellan’s offense level was 20, yielding a sentencing range

under the Guidelines of 33 to 41 months’ imprisonment.           The court

then sentenced McClellan to thirty-six months’ imprisonment.             The

government noted a timely appeal.

     On appeal, the government contends that McClellan’s sentence

was unreasonable as a matter of law because the district court

erred in calculating the sentencing range under the Guidelines.

More specifically, the government posits that the court erred as a

matter of law when it concluded that it could only sentence

McClellan based on the twenty grams of methamphetamine he admitted

at trial that he possessed.

     Following the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound

by the sentencing range prescribed by the Guidelines.               United

States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006); United

States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006); United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).          Post-Booker,

when reviewing a sentence, we must “determine whether the sentence

is within the statutorily prescribed range and is reasonable.”


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Moreland, 437 F.3d at 433 (citation and internal quotation marks

omitted).    In imposing a sentence post-Booker, sentencing courts

must:

     (1) properly calculate the sentence range recommended by
     the Sentencing Guidelines; (2) determine whether a
     sentence within that range and within statutory limits
     serves the factors set forth in § 3553(a) and, if not,
     select a sentence that does serve those factors; (3)
     implement mandatory statutory limitations; and (4)
     articulate the reasons for selecting the particular
     sentence, especially explaining why a sentence outside of
     the Sentencing Guideline range better serves the relevant
     sentencing purposes set forth in § 3553(a).

Green, 436 F.3d at 456 (citation and internal footnote omitted).

     Under Green, a sentence imposed within the sentencing range

calculated under the Guidelines is “presumptively reasonable.” Id.

at 457 (citation and internal quotation marks omitted).                      If the

sentence deviates from the sentencing range, we must determine

whether, in light of the factors set forth in § 3553(a) and the

relevant provisions of the Guidelines, the district court “acted

reasonably   with   respect   to   (1)      the   imposition       of   a   variance

sentence, and (2) the extent of the variance.”               Moreland, 437 F.3d

at 434.

     Moreover, a post-Booker sentence may be unreasonable for both

procedural    and   substantive     reasons.           “A    sentence       may   be

procedurally unreasonable, for example, if the district court

provides an inadequate statement of reasons or fails to make a

necessary    factual   finding.     A       sentence   may    be    substantively

unreasonable if the court relies on an improper factor or rejects

                                        4
policies articulated by Congress or the Sentencing Commission.”

Id.

      In this case, the district court plainly stated on the record

that it was limited to sentencing McClellan based on the twenty

grams of methamphetamine he admitted at trial that he possessed.

According to the court, to sentence McClellan based on any other

amount would violate both Booker and McClellan’s Sixth Amendment

rights.   Unquestionably, the district court’s sentencing approach

violates the dictates of Moreland, Green, and Hughes, which all

require the sentencing court first to calculate the defendant’s

sentencing range under the Guidelines.       By failing to take the

imperative initial step of calculating McClellan’s sentence under

the   Guidelines,   using   all   methamphetamine   amounts   properly

attributable to McClellan under the Guidelines, the court erred as

a matter of law.*   This error of law rendered the sentence imposed


      *
      Indeed, we have noted that, in sentencing a defendant post-
Booker, a sentencing court should apply a preponderance of the
evidence standard, taking into account that the resulting
sentencing range under the Guidelines is advisory only:

      Booker does not in the end move any decision from judge
      to jury, or change the burden of persuasion.          The
      remedial portion of Booker held that decisions about
      sentencing factors will continue to be made by judges, on
      the preponderance of the evidence, an approach that
      comports with the [S]ixth [A]mendment so long as the
      guideline system has some flexibility in application. As
      a practical matter, then, [a defendant’s] sentence[]
      would be determined in the same way if [he was] sentenced
      today; the only change would be the degree of flexibility
      judges would enjoy in applying the guideline system.


                                   5
unreasonable.        Cf.   Green,   436       F.3d   at   460   (“Because   Green’s

sentence was imposed as the result of an incorrect application of

§ 4B1.1 of the Sentencing Guidelines, we vacate the sentence as

unreasonable and remand the case for further sentencing, consistent

with this opinion.”).

     Accordingly, we vacate McClellan’s sentence and remand for

resentencing    in    compliance    with       Booker     and   its   progeny.   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.



                                                            VACATED AND REMANDED




United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (citation
and internal quotation marks omitted).

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