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United States v. McLean

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Submitted: April 3, 2001

Clive Ulet McLean, Jr. appeals from a judgment of conviction and sentence of the District Court for the Northern District of New York (Lawrence E. Kahn, Judge) following his plea of guilty to one count of conspiracy to distribute marijuana and three counts of possession with intent to distribute marijuana. Although the indictment charged that the amount of marijuana involved in the conspiracy exceeded 100 kilograms, the District Court accepted McLean’s plea despite his refusal to allocute to any drug quantity. The District Court subsequently sentenced McLean principally to a 63-month concurrent sentence on each of the four counts based on its own findings that the conspiracy McLean entered into involved more than 100 kilograms of marijuana. The 63- month concurrent sentence on each count exceeds by three months the statutory maximum applicable for an offense involving an unspecified quantity of marijuana.

On appeal, McLean challenges only his sentence, contending that: (1) the District Court’s findings with respect to the quantity of marijuana involved in the conspiracy were clearly erroneous; (2) the District Court erred in declining to apply a two-point deduction to his Base Offense Level for acceptance of responsibility; and (3) his sentence violates the teachings of Apprendi v. New Jersey, 530 U.S. 466 (2000). We find no basis to disturb the findings of the District Court with respect to either the quantity of marijuana involved or McLean’s acceptance of responsibility. With respect to McLean’s Apprendi claim, we hold that, in these circumstances, it was plain error to impose a sentence on each count in excess of the statutory maximum authorized for a crime involving an unspecified amount of marijuana, but that, because the United States Sentencing Guidelines require the District Court to impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment mandated by the Guidelines, the error did not affect McLean’s substantial rights.

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