Vacated by Supreme Court, October 6, 2008



                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5101



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. (1:04-cr-00074-5)


Submitted:   November 28, 2007            Decided:   December 10, 2007


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


Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

          This case is before the court a second time after a

remand to the district court for the resentencing of Stephen Dale

McClellan. The United States appeals the amended judgment imposing

a sentence of thirty-six months’ imprisonment, challenging the

district court’s calculation of McClellan’s sentencing range under

the Sentencing Guidelines.   For the reasons that follow, we vacate

the district court’s amended judgment and remand the case for

resentencing in accordance with the district court’s alternative

amended judgment.

          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, in violation of 21

U.S.C. §§ 841, 846 (West 1999 & Supp. 2007).      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.    The jury further found

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 findings.   On this basis, the district

court found that McClellan’s offense level was 20, yielding a


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sentencing range under the Guidelines of thirty-three to forty-one

months’    imprisonment.     McClellan     was   sentenced   to   thirty-six

months’ imprisonment.      The Government appealed.

            We vacated McClellan’s sentence and remanded the case for

resentencing because, “[b]y 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.”   United States v. McClellan, 182 F. App’x 224 (4th Cir. 2006)

(unpublished).

            On remand, the district court again stated its belief

that it could apply the advisory guidelines only using 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 in the amount of at least 500 grams.”              That finding

supported an offense level of 32.        See U.S. Sentencing Guidelines

Manual § 2D1.1(c)(4) (2004).       With a criminal history category of

I,   McClellan’s    guidelines    sentence   range   was   121-151   months’

imprisonment.      The district court, “having considered the factors

noted in 18 U.S.C. § 3553(a),” ordered a sentence of 121 months’

imprisonment in the “Alternative Amended Judgment”.


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           In imposing a sentence following the Supreme Court’s

decision in United States v. Booker, 

, 261-62 (2005),

a   district   court   must   (1)    properly   calculate    the   sentencing

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

range serves the factors under 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2007); (3) implement mandatory statutory limitations; and

(4) explain its reasons for selecting a sentence, especially a

sentence outside the range.         United States v. Green, 

,

455-56 (4th Cir.), cert. denied, 

(2006).

           Under an advisory guidelines scheme, a district court

does not violate the Sixth Amendment by making factual findings as

to drug quantity by a preponderance of the evidence as long as the

fact-finding does not enhance the sentence beyond the maximum term

specified in the substantive statute. See United States v. Morris,

, 72 (4th Cir. 2005), cert. denied, 

(2006).

           On remand, we instructed the district court to make the

appropriate    findings   regarding     drug    quantity    in   applying   the

advisory guidelines.       The district court’s failure to do so, as

reflected in the amended judgment, again violated the dictates of

Moreland and Green.       Accordingly, we vacate the amended judgment

and remand for resentencing in accordance with the district court’s

alternative amended judgment.




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          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




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