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United States v. McCall

United States Court of Appeals, Fourth Circuit

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILLIE D. MCCALL, a/k/a Derrick Armstead, Defendant-Appellant.

          Argued: March 21, 2019

          Appeal 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)

         ARGUED:

          Rachel 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.

         ON BRIEF:

          Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.

          Michael B. Stuart, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

          Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.

          RICHARDSON, CIRCUIT JUDGE

         Willie 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.

         McCall 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.

         I.

         On 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 ...


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