                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0131n.06
                           Filed: February 13, 2009

                                           No. 07-6245

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR
                                                 )    EASTERN DISTRICT OF TENNESSEE
EARL MCELHENEY,                                  )
                                                 )
       Defendant-Appellant.                      )



       Before: MARTIN and COOK, Circuit Judges; WATSON, District Judge*


       COOK, Circuit Judge. The defendant, Earl McElheney, pleaded guilty to receiving child

pornography via the Internet. The district court, after rejecting McElheney’s request for a downward

variance, sentenced him to 135 months’ imprisonment. McElheney raises a number of issues on

appeal, but we need only address his claim that he should be resentenced due to the change in

sentencing law wrought by Gall v. United States, 128 S. Ct. 586 (2007).


       The sentencing court—without the benefit Gall—declined to vary below the advisory-

Guidelines range. Over an objection from McElheney, the court applied this circuit’s now-defunct

“extraordinary circumstances” requirement, explaining that “the further away from the guidelines



       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
the Court goes, the greater the justification must be.” The court’s sentencing memorandum

elaborated on this perceived limit to its discretion: “If the Court wished to impose a sentence

substantially below the Sentencing Guidelines, it would have to offer a compelling justification

based on the relevant § 3553(a) factors that is in proportion to the extent of the variance.” Finding

nothing extraordinary about McElheney’s situation—“[McElheney] has not provided any argument

to establish this case is atypical”—the court limited itself to the recommended-Guidelines range.


        Gall rejected this circuit’s rule, to which the district court adhered, when it held that appellate

courts may not require extraordinary circumstances to justify sentences that deviate substantially

from the advisory-Guidelines range. Gall, 128 S. Ct. at 596. In light of Gall and because we lack

the requisite certainty to label the district court’s procedural error as harmless (that is, “that this error

did not cause the defendant to receive a more severe sentence,” United States v. Lanesky, 494 F.3d

558, 562 (6th Cir. 2007)),1 we vacate McElheney’s sentence and remand for resentencing.




        1
          The government argues harmlessness by emphasizing how the district court noted that “in
this case the Court did not believe any variance was warranted.” But the transcript leaves open the
question whether that comment signaled the district court’s unwillingness to vary in any set of
circumstances, or merely under the then-existing law. This ambiguity prevents the government from
meeting its burden of showing “with certainty” that we may excuse the error as harmless. See
Lanesky, 494 F.3d at 561–62. The district court will decide on remand whether the intervening Gall
decision changes its judgment as to the appropriate sentence to be imposed.
