                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-5101


UNITED STATES OF AMERICA,

                  Plaintiff - Appellant,

             v.

STEPHEN DALE MCCLELLAN,

                  Defendant - Appellee.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 07-1154)


Submitted:    January 29, 2009              Decided:   April 3, 2009


Before WILLIAMS, Chief Judge,        MICHAEL,   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Vacated and remanded by unpublished per curiam opinion.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,
Asheville, North Carolina, for Appellant.        R. Deke Falls,
BARNETT & FALLS, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Stephen Dale McClellan was found guilty by a jury of

conspiracy to possess with the intent to distribute in excess of

1.5    kilograms      of    methamphetamine,         in    violation      of    21     U.S.C.

§§ 841,     846    (2006).       The   jury        further      found,    however,      that

McClellan did not know and could not have reasonably foreseen

the involvement of at least 1.5 kilograms of methamphetamine.

At    the    original        sentencing           hearing,      the    district        court

determined that it could only sentence McClellan based on the

twenty grams of methamphetamine he admitted at trial, in light

of    the   jury’s    special    verdict          finding.       On   this     basis,    the

district     court     found    that       McClellan’s       offense     level    was    20,

yielding     a     sentencing       range     under       the    advisory       Sentencing

Guidelines of thirty-three to forty-one months of imprisonment.

McClellan was sentenced to thirty-six months of imprisonment.

             On      appeal,     we    vacated        McClellan’s         sentence       and

remanded the case for resentencing because we found that the

district court erred as a matter of law by failing to take the

imperative        initial    step     of    calculating         McClellan’s       sentence

under       the      advisory       Sentencing            Guidelines,          using     all

methamphetamine        amounts      properly        attributable         to    him.      See

United States v. McClellan, 182 F. App’x 224, 226-27 (4th Cir.

2006) (“McClellan I”).



                                              2
              On remand, the district court again stated its belief

that it could apply the advisory Guidelines using only the drug

quantity      McClellan     admitted      at        trial.    On   that     basis,     the

district      court   entered      an     “Amended          Judgment”     imposing     the

original thirty-six-month sentence. In addition, in recognition

of our mandate on remand, the district court examined the record

and   found    that   McClellan         knew,      understood,      and    foresaw     the

involvement of the conspiracy of at least 500 grams of the drug,

that such a finding supported an offense level of 32, and, that

with his criminal history category of I, McClellan’s                            sentencing

range was 121-151 months of imprisonment.                       The district court,

after considering 18 U.S.C. § 3553(a) (2006), ordered a sentence

of 121 months of imprisonment as memorialized in an “Alternative

Amended Judgment.”

              On appeal, we vacated and remanded again, noting that

a district court imposing a sentence after the Supreme Court’s

decision      in   United   States       v.       Booker,    543   U.S.    220,     261-62

(2005), must: (1) properly calculate the Sentencing Guidelines

range; (2) determine whether a sentence within that range serves

the factors under 18 U.S.C. § 3553(a); (3) implement mandatory

statutory limitations; and (4) explain its reasons for selecting

a   sentence,      especially      a    sentence       outside     the     range.       We

instructed the district court on remand to make the appropriate

findings      regarding     drug       quantity       in     applying     the     advisory

                                              3
Guidelines.        See United States v. McClellan, 257 F. App’x 654,

656     (4th Cir. 2007) (“McClellan II”), vacated, 129 S. Ct. 33

(2008) (No. 07-1154).

            The     Supreme   Court,    however,        granted   a   petition     for

writ of certiorari, vacated our judgment in McClellan II, and

remanded the case to this court for further consideration in

light of Gall v. United States, 128 S. Ct. 586 (2007).                      We note

that Gall issued on the same day as our opinion in McClellan II.

Thus, the district court did not have the benefit of Gall when

it resentenced McClellan.

             In Booker the Supreme Court invalidated both 18 U.S.C.

§     3553(b)(1)    (2006),   which      made     the    Sentencing      Guidelines

mandatory,    and     18   U.S.C.   §    3742(e)        (2006),   which    required

appellate courts to conduct a de novo review of departures from

the Guidelines. 543 U.S. at 260-62.               As a result of Booker, the

Guidelines are now advisory, and appellate courts are limited to

reviewing     sentencing      decisions      to     determine         whether     such

sentences are “reasonable.”             Gall, 128 S. Ct. at 594.                As the

Supreme Court has made clear, the “appellate ‘reasonableness’

review” required by Booker “merely asks whether the trial court

abused its discretion.”        Rita v. United States, 127 S. Ct. 2456,

2465 (2007).       Further “appellate review of the reasonableness of

a sentence focuses on whether the sentencing court abused its



                                         4
discretion in imposing the chosen sentence.” United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

               As we noted in Pauley, the Gall opinion instructed

that a sentencing court should first calculate the applicable

Guidelines range.            Id.      This starting point furthers Congress’

desire     for        efficient        administration             and       consistency          in

sentencing.       After calculating the Sentencing Guidelines range,

the    court    must    give       each     party    an    opportunity           to    argue    for

whatever sentence they deem appropriate.                          Id.; see Kimbrough v.

United States, 128 S. Ct. 558, 569 (2007).                            The sentencing court

must then consider all of the § 3553(a) factors to determine if

they support the sentence requested by either party.                                          In so

doing, the district court may not presume the Guidelines range

is reasonable.         Pauley, 511 F.3d at 473; see Gall, 128 S. Ct. at

596.     If the sentencing court decides to sentence a defendant

outside the Guidelines sentencing range, it must consider the

extent    of    the    deviation       to    ensure       that    the       justification        is

sufficiently       compelling          to    support       the    degree         of    variance.

Pauley, 511 F.3d at 473.                   As noted by the Gall Court, a major

departure        should        be      supported          by      a     more          significant

justification         than     a    minor    one.         Gall,       128   S.   Ct.     at    596;

Pauley, 511 F.3d at 473.

               Accordingly, we vacate and remand McClellan’s sentence

for    resentencing       in       light    of   the   Supreme         Court’s        opinion    in

                                                 5
Gall,   and   this   court’s   opinions   applying    Gall   and    related

authority.    See, e.g., Pauley, 511 F.3d at 473-76.            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




                                     6
