United States v. McNeil , 429 F. App'x 333 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4976
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY LAMONT MCNEIL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00399-TDS-1)
Submitted: April 25, 2011 Decided: May 19, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Lamont McNeil appeals his conviction after a
jury trial and seventy-four-month sentence for one count of
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006). McNeil raises two claims
of error on appeal: that insufficient evidence supports his
conviction; and that the district court imposed a substantively
unreasonable sentence. We affirm.
I. Sufficiency of the Evidence
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the
evidence challenge by determining whether, viewing the evidence
in the light most favorable to the government, any rational
trier of fact could find the essential elements of the crime
beyond a reasonable doubt. United States v. Collins, 412 F.3d
515, 519 (4th Cir. 2005). We will uphold the jury’s verdict if
substantial evidence supports it and will reverse only in those
rare cases of clear failure by the prosecution. Foster, 507
F.3d at 244-45. We do not review the credibility of the
witnesses and assume that the jury resolved all contradictions
in the testimony in favor of the government. Id. at 245.
2
To support a conviction for being a felon in
possession of a firearm under § 922(g)(1), the government must
prove the following elements: “(1) the defendant previously had
been convicted of a [felony]; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or
affecting commerce, because the firearm had traveled in
interstate or foreign commerce at some point during its
existence.” United States v. Moye, 454 F.3d 390, 394, 395
(4th Cir. 2006) (en banc). McNeil does not contest that he has
been convicted of a felony or that the firearm in question
traveled in interstate commerce. He argues instead that there
was insufficient evidence that he possessed the firearm.
The gravamen of McNeil’s argument is that his
conviction was based entirely on an in-court identification made
by Detective Raymond Laird of the Forsyth County Sheriff’s
Office. McNeil’s conviction was predicated on his sale of a
firearm to Laird, who was operating in an undercover capacity.
Laird had never met McNeil before the firearm sale, and twelve
months had passed before Laird was shown three photographs of
McNeil and asked to confirm his identity as the seller.
Accordingly, McNeil argues, the identification is not reliable
and the district court should have granted his Fed. R. Crim. P.
29 motion for a judgment of acquittal.
3
As McNeil points out, we have cautioned district
courts to be mindful of the reliability problems that may arise
when the government’s factual allegations hinge on the
identification of a single witness, especially in circumstances
where significant time has lapsed from the alleged crime to the
first identification and where no full line-up was conducted.
See United States v. Holley, 502 F.2d 273, 274-75 (4th Cir.
1974). Our review of the record, however, leads us to conclude
that the district court did not err in denying McNeil’s Rule 29
motion.
First, other circumstantial evidence corroborated
Laird’s identification. McNeil’s girlfriend testified that at
the time of the transaction, she lived with McNeil at the very
apartment where the transaction took place, and McNeil drove a
burgundy van similar to the one from which detectives saw the
suspect emerge prior to the sale. In addition, the district
court cautioned the jury to be mindful of the means of the
witness identification. Nevertheless, the jury found Laird’s
identification credible, and we decline to disturb that finding
on appeal.
4
II. Sentence
McNeil next argues that the district court imposed an
unreasonable sentence because the sentence was greater than
necessary under 18 U.S.C. § 3553(a) (2006).
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.First, we must assess whether the district court properly
calculated the Guidelines range, considered the § 3553(a)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n
individualized explanation must accompany every sentence.”);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(same). An extensive explanation is not required as long as the
appellate court is satisfied “‘that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S.
Ct. 165 (2010). If the sentence is free of significant
procedural error, this court reviews the substantive
5
reasonableness of the sentence. Lynn, 592 F.3d at 575; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
McNeil does not allege the sentence was procedurally
unreasonable. We therefore analyze the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). We presume
on appeal that a sentence within a properly calculated
Guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
We have reviewed the record, and conclude that McNeil
has not rebutted the presumption of reasonableness accorded to
his within-Guidelines sentence. The court carefully articulated
its rationale for the sentence it imposed. We agree with the
district court’s conclusions that a within-Guidelines sentence
served the goal of deterrence and protection of the public and
was appropriate because of the serious nature of McNeil’s
offense.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
6
before the court and argument would not aid the decisional
process.
AFFIRMED
7