                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4444



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JEAN ANDREW MCKINNEY, a/k/a Red,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-03-59)


Argued:   December 2, 2005                 Decided:   April 28, 2006


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


ARGUED: L. Richard Walker, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia,
for Appellant. Sherry L. Muncy, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee.    ON BRIEF: Thomas E. Johnston, United States
Attorney, Wheeling, West Virginia; Robert M. McWilliams, Jr.,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     Jean Andrew McKinney appeals his conviction and sentence for

making a threatening telephone call.          We find no reversible error

in the evidentiary and procedural rulings challenged by McKinney

and therefore we affirm his conviction.                We are also of opinion

that the district court erred under United States v. Booker, 543

U.S. 220 (2005), in determining McKinney’s sentence.                   Thus, we

remand to the district court for resentencing.



                                      I.

     Jean Andrew McKinney is a 68-year-old retired electrician who

lived with his wife, Glenda McKinney, in Powell, Wyoming.                He was

indicted   after    he   became   involved    in   a    dispute   between    Mrs.

McKinney and her relatives in West Virginia over an inheritance.

     In 1996 Mrs. McKinney’s mother, Norma Agnew, executed a will

and a separate trust agreement providing that the remainder of her

estate be distributed upon her death to Mrs. McKinney.               The estate

was valued at approximately $1 million.                  In 2002, Mrs. Agnew

executed an amendment to her trust.           The amendment provided that

the remainder of the trust should be distributed one-half to Mrs.

McKinney and one-half to Mrs. Agnew’s brother, James Davis.                  Mrs.

Agnew died in April 2003.

     McKinney      disagreed   with   the    manner     in   which   funds   were

allocated.    He believed that a larger portion of the estate should


                                      3
have gone to his wife.   Specifically, McKinney took the position

that Davis coerced a failing Mrs. Agnew to amend her trust in 2002.

Starting in September 2003, McKinney made a series of calls to

Davis and members of Davis’ family, threatening harm to the family

if most of Davis’ portion of the estate was not repaid to Mrs.

McKinney.   McKinney claimed that he never threatened anyone with

physical harm or violence, but that he did threaten to sue Davis

and family if the funds were not transferred to Mrs. McKinney.

     On November 5, 2003, a grand jury returned an indictment

charging McKinney with conspiring to make extortionate threats over

the telephone in violation of 18 U.S.C. § 371 (Count One) and with

making a threatening interstate telephone communication on October

17, 2003, in violation of 18 U.S.C. § 875(b) (Count Two).   At the

jury trial on March 15-17, 2004, the district court dismissed Count

One after the government’s case-in-chief because the government had

failed to present evidence of an agreement with a co-conspirator.

The jury returned a guilty verdict as to Count Two.     On June 1,

2004, McKinney was sentenced to 57 months in prison to be followed

by three years of supervised release.



                               II.

     We review for abuse of discretion decisions as to whether or

not evidence is relevant. United States v. Russell, 971 F.2d 1098,

1104 (4th Cir. 1992), and a probative/prejudicial balance of a


                                4
trial court is not disturbed except in extraordinary circumstances

not present here.



                                   A.

     McKinney first contends that the district court erred in

excluding favorable evidence of Mrs. Agnew’s diminished mental and

physical condition as it related to the amendment of her trust and

the existence of a threat to do physical harm.       McKinney claims

that he filed a witness list including individuals familiar with

Mrs. Agnew and that the purpose of deposing1 these witnesses was to

establish Mrs. Agnew’s diminished mental and physical condition

around the time of the amendment to her trust.    The district court

granted in part the government’s motion to exclude these witnesses,

reasoning that the evidence was “anecdotal,” “irrelevant,” and

could “confuse the jury.”

     McKinney argues that he has a constitutional right to present

his best defense, which includes the right to obtain the testimony

of favorable witnesses and compel their attendance.          At trial

McKinney argued that the few telephone calls he actually placed to

Davis and his family only included threats to sue, which would not

have been construed as threats to do physical harm by a reasonable

recipient    understanding   the   context.   McKinney   contends   the



     1
        No question has been made of taking depositions in a criminal
case.

                                    5
testimony of the excluded witnesses, all of whom were women who

lived    in   the   nursing   home   with   Mrs.   Agnew,   would    tend   to

substantiate to a certain extent that the trust amendment was

unlawful.     McKinney also argues that this shows he may have had

legitimate legal grounds to contest the will and trust and sue

Davis.    Further, the excluded testimony would have also indicated

that Davis was on notice of Mrs. Agnew’s diminished condition.

Thus, according to McKinney, the jury could have inferred that

Davis knew of the real possibility of a law suit by McKinney for

his unjust enrichment.2

     The district court found that the sort of evidence the women

would have provided was not sufficiently probative or relevant and

could confuse the jury.       The district court did state that it would

allow the defense to introduce the testimony of the decedent’s

doctor as to her mental state if it turned out that a contested

issue was a good faith belief of McKinney that Mrs. Agnew's mental

state was slipping or compromised.          The defense, however, did not

subpoena the doctor nor call him as a witness at trial.

     McKinney contends that he has been deprived of presenting his

best defense when the district court excluded the testimony of the

women who lived in the same nursing home as Mrs. Agnew.             As noted,

the district court, however, allowed the defendant to subpoena Mrs.



     2
      We express no opinion that even a valid claim of a will
contest is a defense to extortion.

                                      6
Agnew’s doctor to present evidence that her mental status was

slipping or compromised. The defendant did not subpoena the doctor

nor call him as a witness at trial.            So when presented with the

opportunity to call a witness who would presumably have had the

most credibility and possessed the most relevant and competent

evidence as to Mrs. Agnew’s mental condition, McKinney chose not to

pursue this defense.      To claim now that he was constitutionally

deprived of presenting his best defense when he was given the

opportunity and chose not to present the best witness is to claim

a right that has been effectively waived.



                                    B.

     McKinney    next   argues   that    the    district      court   erred    in

admitting evidence offered by the government of a threatening

telephone communication allegedly made by McKinney after the date

of the offense alleged in Count Two, October 17, 2003.                        The

government   presented   evidence   that       on   October    17,    2003,   the

defendant made a telephone call demanding money and threatening

physical harm if his demands were not met by a November 15

deadline.    This call was the culmination of a series of calls made

by McKinney to members of James Davis' family discussing either

money or threats of physical harm.

     The calls began in September and continued through October.

McKinney called Tina Davis, wife of Marty Davis, grandson of James


                                    7
Davis, and told her about “doped up friends from Elkins that would

take care of Grandpa.”      A call to Marty Davis repeated these

claims and extended the threat to include the fact that the “doped

up friends” had been on Davis’ porch holding flares.     A call from

the defendant warned of harm that might come to Michelle, James

Davis’ granddaughter, by the same friends from Elkins.    Calls from

the defendant to Davis illustrated the anger of McKinney toward

Davis about the distribution of the estate. Calls between McKinney

and Davis’ son included threats of harm to Davis and his family if

Davis did not obey the demands of McKinney, which culminated in the

call on October 17 that gave a deadline of November 15.

     These calls were presented to explain the context of the call

on October 17.    The call on October 22, from McKinney to James

Davis, completed the story of the crime on trial, that is, that the

October 17 call was a true threat.    The words spoken during the

October 22 call were “I tell you this one, we just found out you

only have one granddaughter.”   The caller was identified by Davis,

Tina Davis and Marty   Davis as McKinney.   The government argued at

trial that the call on October 22 was only five days after the call

in Count Two, that the voice was identified as the defendant, and

that it referred to Davis’ granddaughter, the subject of earlier

calls.   The district court agreed and found that “its probative

value outweigh[ed] its prejudicial impact” under Federal Rule of

Evidence 403.    In any event, McKinney's position that the calls


                                 8
related to a civil suit rather than to harm, a claim of innocent

intent, makes the relevance of the October 22nd call apparent.

Thus, the district court did not abuse its discretion in admitting

the October 22nd telephone call. The balancing of the October 22nd

call by the district court was not an erroneous balance under

Russell, 971 F.2d at 1104, and we so hold.



                                  III.

     The defendant next contends that the district court erred when

it denied his motion for mistrial.        We review a district court’s

denial of a motion for mistrial for abuse of discretion. United

States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).

     McKinney’s mistrial motion was based on a telephone call on

November 4, 2003, that the government presented at trial, which the

district court excluded.       The call to Davis said that if the

November 15 deadline was not met, “I hope young Jason comes home

from deer hunting.”    The district court initially allowed the tape

of this call to be played and Davis identified the caller as

McKinney.   When the district court later dismissed Count One, the

conspiracy count, it ruled that the telephone call on November 4

was too remote in time to the date of October 17 in Count Two and

excluded    this   evidence.   McKinney   argues   that   although   this

telephone call was no longer evidence, it had been published to the

jury on the first day of trial and had become an integral part of


                                    9
the    government’s     case.         The    district      court     erred,     McKinney

contends, in not giving an immediate curative instruction, instead

of    waiting   until   the     last    day       of   trial   to    give   a   limiting

instruction.     The district court charged the jury:

       . . . I am ordering that you not consider that telephone
       call for any purpose whatsoever in your considerations.

J.A. 534.

       We are of opinion and hold that there is no reason to decide

the jury did not follow the instruction of the district court which

was    given.    We     hold    the    district        court   did    not     abuse   its

discretion.      Any delay until the count was disposed of was not

error.



                                            IV.

       At sentencing the district court increased McKinney’s base

offense level of 18 because he made an express threat of bodily

injury (increase of two levels), because he demanded $300,000

(increase of three levels), and because he made false statements

while under oath (increase of two levels).                          Based on a total

offense level of 25 and McKinney’s criminal history category of I,

the sentencing range was 57 to 71 months of incarceration.                            The

district court imposed a sentence of 57 months in prison, the

lowest period of incarceration under the Guidelines.

       The district court imposed the sentence under the mandatory

Sentencing Guidelines, which was plain error, because the sentence

                                            10
imposed    may    have   been    a   longer   sentence   than   it    might    have

otherwise adopted.       Compare United States v. White, 405 F.3d 208,

224 (4th Cir. 2005).            Of course, we imply no criticism of the

district judge, who followed the law at the time of sentencing.

     Even if the district judge's finding as to an express threat

of bodily injury, which increased McKinney's sentencing level by

two levels, was found by the jury, the demand of $300,000, as

contrasted with some other sum, was found by the district court and

not by the jury, as was the finding of false statements while under

oath, which latter findings increased McKinney's level by                     three

for the amount of $300,000 and two for the false statements.                  Thus,

we find that the obligatory findings by the district court rather

than the jury increased the sentence awarded to a longer one than

otherwise might have been imposed.

     Accordingly, we affirm the defendant's conviction in all

respects    but    vacate     his    sentence   and   remand    the    case     for

resentencing.

     On remand, the district court should first determine the

appropriate      sentencing     range   under   the   Sentencing     Guidelines,

making all factual findings appropriate for that determination.

The district court should consider this sentencing range along with

the other factors described in 18 U.S.C. § 3553(a) and then impose

a sentence.      United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005).     If that sentence falls outside the Guidelines range, the


                                         11
court should explain its reasons for imposing a non-Guidelines

sentence as required by 18 U.S.C. § 3553(c)(2).      As required by

Hughes, the sentence must be “within the statutorily prescribed

range and . . . reasonable.”   401 F.3d at 546-47.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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