United States of America v.  Glen Allen McClung

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4906 
GLEN ALLEN MCCLUNG,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-05-22)
Argued: October 25, 2006
Decided: April 25, 2007
Before WILKINS, Chief Judge, and NIEMEYER and
MOTZ, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
Susan Marie Arnold, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T. Mil-

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ler, Acting United States Attorney, Charleston, West Virginia, for
Appellee.
OPINION
WILKINS, Chief Judge:
Glen Allen McClung appeals the sentence imposed by the district
court following his plea of guilty to extortion, see 18 U.S.C.A. § 1951
(West 2000), and filing a false tax return, see 26 U.S.C.A. § 7206(1)
(West 2002). For the reasons set forth below, we affirm his sentence.
I.
In October 2000, McClung was appointed Assistant State Superin-
tendent of Schools for the State of West Virginia. As one of the chief
administrators for the Department of Education (DoE) for the state,
McClung’s duties included developing budgets for various state DoE
departments and for the county boards of education.
Prior to his appointment, McClung had renewed a friendship with
Phillip K. Booth. Booth worked in the insurance industry and owned
several businesses, including National Equity, LLC, which purchased
delinquent real estate loans for resale, and The Liquidator, LLC,
which sold new and used office furniture.
During his tenure, McClung used his position to influence the DoE
bidding process and to award DoE contracts and other benefits to
Booth’s companies. In return, McClung received money and financial
benefits from Booth but did not report this income to the Internal
Revenue Service. In total, McClung and Booth exchanged a benefit
of more than $400,000.
Two days before his trial was to begin, McClung pleaded guilty to
extortion under color of official right, see 18 U.S.C.A. § 1951, and fil-
ing a false tax return, see 26 U.S.C.A. § 7206(1). At the plea hearing,
the district court, satisfied that McClung was knowingly pleading
guilty, advised him of the maximum statutory penalties he faced as
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a result of his guilty plea. The court also warned McClung that
although it was required to "calculate and consult the . . . [g]uidelines,
[it] ha[d] the authority to sentence outside that range and within the
statutory range . . . [t]hat is to say, [it was] not bound by the guide-
lines." J.A. 72. McClung confirmed that he understood.
In preparation for sentencing, a presentence report (PSR) was pre-
pared. The PSR recommended a base offense level of 10, see United
States Sentencing Guidelines Manual § 2C1.1(a) (2002), a two-level
enhancement because the criminal conduct involved more than one
extortion or bribe, see id. § 2C1.1(b)(1), and a 14-level increase
because the benefit or net profit Booth received in return for pay-
ments to McClung exceeded $400,000, see id. §§ 2C1.1(b)(2)(A)(ii),
2B1.1(b)(1)(H). The PSR also recommended a downward adjustment
of two levels for acceptance of responsibility, see id. § 3E1.1(a). The
resulting final offense level of 24, when combined with McClung’s
Criminal History Category of I, yielded an advisory guideline range
of 51 to 63 months imprisonment. Neither McClung nor the Govern-
ment objected to the sentencing range as calculated. However, in sen-
tencing memoranda submitted to the court, McClung argued for a
sentence at the low end of the range or even a downward departure,
while the Government argued for a sentence at the high end of the
range.
McClung was sentenced to 84 months imprisonment. The district
court emphasized that this sentence was not a departure from the
guidelines, but a variance, for which it identified three bases. First,
the court found that McClung’s offense was the result of "an elabo-
rate, well thought-out extortion scheme" that exploited his position of
public trust and directly affected some of the "most economically dis-
advantaged counties in West Virginia." J.A. 159-60. The court also
discredited the personal statement McClung filed with his sentencing
memorandum, particularly McClung’s assertion that he believed that
the bribes he received were "loans." Id. at 159. Second, the court
determined that the sentence was necessary to promote respect for the
law because extortion is a more serious crime when committed by "a
high-ranking public official." Id. at 160. Last, the court concluded that
the "sentence reflects just punishment" for McClung’s criminal con-
duct and that it would "deter other public officials from dishonoring
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their office by sacrificing the public interest to private gain." Id. at
160-61. McClung timely appealed his sentence.
II.
McClung raises two issues on appeal: (1) that the district court
erred by failing to provide notice of its intent to vary upwardly from
the guideline range, violating his right to allocution; and (2) that the
sentence imposed was unreasonable.* We address each argument in
turn.
A.
McClung first contends that the district court committed error
when it failed to provide advance notice of its intention to vary
upwardly from the advisory guideline range. See Fed. R. Crim. P.
32(h); United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).
As a result, McClung claims that he was deprived of the opportunity
to meaningfully allocute in opposition to the variance sentence
imposed. Because McClung did not raise this issue in the district
court, our review is for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993); United States v. Spring, 305 F.3d 276, 281
(4th Cir. 2002).
To establish plain error, McClung must show that an error
occurred, that the error was plain, and that the error affected his sub-
stantial rights. See Olano, 507 U.S. at 732. To show that the error
affected his substantial rights, McClung must demonstrate the error
was prejudicial, i.e., that it "affected the outcome of the district court
proceedings." Id. at 734. Moreover, even if McClung makes this
three-part showing, correction of the error remains within our discre-
tion, which we "should not exercise . . . unless the error ‘seriously
affects the fairness, integrity or public reputation of judicial proceed-
ings.’" Id. at 732 (quoting United States v. Young, 470 U.S. 1, 15
(1985) (second alteration in original)).
*McClung also argues that his sentence violates the Ex Post Facto
Clause because at the time of his criminal conduct the guidelines were
mandatory. This claim is foreclosed by our decision in United States v.
Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006).
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Rule 32(h) of the Federal Rules of Criminal Procedure requires a
district court to give "reasonable notice" to the parties that it is con-
sidering a departure from the guideline range "on a ground not identi-
fied . . . either in the presentence report or in a party’s prehearing
submission." In Davenport, we held that the notice requirement of
Rule 32(h) "remains a critical part of sentencing post-Booker" and
that it applies to variances as well as to departures. Davenport, 445
F.3d at 371. We therefore agree with McClung that the district com-
mitted plain error by failing to provide notice of its intention to vary
from the advisory guideline range.
McClung, however, has failed to demonstrate that the error
affected his substantial rights. First, McClung was not deprived of a
meaningful opportunity for allocution. Allocution "affords the defen-
dant two rights: to make a statement in his own behalf, and to present
any information in mitigation of punishment." Green v. United States,
365 U.S. 301, 304 (1961) (plurality opinion) (internal quotation marks
omitted); see Fed. Crim. R. P. 32(i)(4)(A)(ii). There is no doubt here
that McClung had a meaningful opportunity to make a statement in
his own behalf and to argue his mitigation case to the court at length,
both in his presentencing memorandum and at his sentencing hearing.
His presentencing memorandum included a ten-page letter in which
McClung addressed his personal history and finances, his financial
relationship with Booth, and the charged conduct. He also wrote of
his personal shame and of the hardship he brought to his family.
McClung concluded his letter by stating that he knew what he had
done and "accept[ed] full responsibility for [his] actions." J.A. 140.
McClung also addressed the court before his sentence was announced,
again accepting responsibility for his actions and asking the court for
the opportunity to make his restitution payments in full.
Second, McClung presented argument to the court regarding all rel-
evant sentencing factors under 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2006). Cf. Spring, 305 F.3d at 283 (noticing error because the
lack of advance notice "impaired [the defendant’s] opportunity to be
heard on an important matter affecting his sentence"). His presentenc-
ing memorandum fully discussed all § 3553(a) factors related to his
sentencing, and McClung argued that based on those factors and his
desire to make full restitution, a downward departure was warranted.
The district court had all this information before it when it imposed
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the variance sentence, and McClung has provided nothing new or
additional he might have said that would have persuaded the court to
impose a shorter sentence. Accordingly, we conclude that the error
did not affect the outcome of his sentencing proceedings.
B.
McClung also contends that the 84-month sentence imposed by the
district court is unreasonable because it is greater than necessary to
comply with the sentencing goals set forth in § 3553(a) and that a sen-
tence within the advisory guideline range of 51-63 months would
have been sufficient. We disagree.
We review a sentence for reasonableness. See United States v.
Moreland, 437 F.3d 424, 433 (4th Cir. 2006). When reviewing a vari-
ance sentence, we consider "whether the district court acted reason-
ably with respect to (1) the imposition of a variance sentence, and (2)
the extent of the variance." Id. at 434. "Generally, if the reasons justi-
fying the variance are tied to § 3553(a) and are plausible, the sentence
will be deemed reasonable. However, when the variance is a substan-
tial one . . . we must more carefully scrutinize the reasoning offered
by the district court in support of the sentence." Id. Therefore, "[t]he
farther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be." Id.
Before sentencing McClung, the district court considered the PSR
and the materials and arguments submitted by both parties and it
determined that a variance sentence was required to meet the sentenc-
ing goals of Congress as stated in § 3553(a). Among the reasons cited
by the district court warranting a variance sentence were the duty
McClung "owed [as Assistant State Superintendent] to every West
Virginian," that McClung created "an elaborate, well thought-out
extortion scheme that exploited that position of trust," and that his
criminal conduct "affected . . . the state’s most vulnerable." J.A. 159-
60. The district court also stated that it had read McClung’s letter and
found his explanation of events "incredible." Id. at 159. In light of
these considerations, the district court concluded that a variance sen-
tence was necessary to promote respect for the law, provide just pun-
ishment, and deter other public officials from "dishonoring their
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office by sacrificing the public interest to private gain." Id. at 160-61;
see 18 U.S.C.A. § 3553(a).
After reviewing the record and McClung’s sentence, we conclude
that the district court sufficiently articulated the compelling reasons
justifying the variance sentence imposed. We thus conclude that the
sentence imposed was reasonable.
III.
For the reasons set forth above, we affirm McClung’s sentence.
AFFIRMED
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