United States of America v. Earl McElheney

The Honorable Michael H. Watson, United States District Judge for the Southern District*
of Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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,
v.
EARL MCELHENEY,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
EASTERN DISTRICT OF TENNESSEE
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

-- 1 of 2 --

The government argues harmlessness by emphasizing how the district court noted that “in1
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.
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)), we vacate McElheney’s sentence and remand for resentencing.1

-- 2 of 2 --