Argued: March 21, 2019
from the United States District Court for the Southern
District of West Virginia at Charleston. David A. Faber,
Senior District Judge. (2:17-cr-00050-1)
Elizabeth Zimarowski, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant.
Timothy Doyle Boggess, OFFICE OF THE UNITED STATES ATTORNEY,
Beckley, West Virginia, for Appellee.
Christian M. Capece, Federal Public Defender, Jonathan D.
Byrne, Research & Writing Specialist, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Michael B. Stuart, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for
FLOYD, HARRIS, and RICHARDSON, Circuit Judges.
RICHARDSON, CIRCUIT JUDGE
D. McCall appeals his federal prison sentence for
distributing 1.2 grams of methamphetamine. The Federal
Sentencing Guidelines recommended a sentence of 30 to 37
months. But the sentencing court found the Guidelines range
too low based on McCall's criminal history and a more
elusive concern about the interstate nature of his conduct.
So the court varied substantially upward and sentenced McCall
to ten years in prison.
argues that the district court erred in varying upward based
on these two considerations. We agree that the court erred in
relying on the interstate nature of McCall's offense
because nothing in the record, except McCall's
out-of-state residency, indicates that his offense involved
the interstate transportation of methamphetamine. We
therefore vacate McCall's sentence, and to ensure the
appearance of impartiality, order his case be reassigned to a
different judge for resentencing.
February 7, 2017, McCall sold 1.2 grams of methamphetamine to
a confidential informant for $100 at a restaurant in Kanawha
County, West Virginia. After the sale, law enforcement
searched an apartment believed to be used by McCall and
recovered a gun and about 615 grams of high-quality crystal
methamphetamine. After he was indicted, McCall ...