United States v. McNeill , 389 F. App'x 233 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN JAMES MCNEILL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00448-WO-1)
Submitted: June 28, 2010 Decided: July 22, 2010
Before KING, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Angela Hewlett Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman James McNeill appeals his conviction following
a plea agreement and 120 month sentence for one count of
distributing 50.1 grams of cocaine base in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) (2006). McNeill’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious issues for
appeal, but questioning whether McNeill’s sentence, which was
the statutory mandatory minimum, was reasonable. McNeill was
advised of his right to file a pro se supplemental brief, and
has done so. For the reasons that follow, we affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for reasonableness,
considering both the procedural and substantive reasonableness
of a sentence. Id.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 51. We then
determine whether the district court failed to consider the 18
U.S.C. § 3553(a) (2006) factors and any arguments presented by
the parties, treated the guidelines as mandatory, selected a
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sentence based on “clearly erroneous facts,” or failed to
sufficiently explain the selected sentence. Id.; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “The
district court ‘must make an individualized assessment[,]’. . .
apply[ing] the relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall v. United
States, 552 U.S. 38, 50 (2007)).
Additionally, a district judge must detail in open
court the reasons behind its chosen sentence, “‘set[ting] forth
enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.’” Id. (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51)
Here, it is clear that the district court’s sentence
was procedurally reasonable. The district court properly
calculated McNeill’s Guidelines range at 120 to 150 months’
imprisonment, and provided an individualized assessment,
explicitly stating why he chose to sentence McNeill to the lower
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end of the Guidelines range. Accordingly, we find that
McNeill’s sentence was procedurally reasonable.
This court accords a sentence within the properly
calculated guidelines range an appellate presumption of
reasonableness. United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). Such a
presumption can be rebutted only by showing “that the sentence
is unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted). McNeill’s
sentence was within the Guidelines range, and his counsel has
not demonstrated that the sentence was unreasonable. We
therefore find that his sentence was substantively reasonable.
McNeill raises one issue in his pro se supplemental
brief: whether the Assistant United States Attorney who
prosecuted his case was licensed to practice law at the time he
entered the plea agreement. After reviewing the record, we find
that even if the Government’s attorney was not properly
licensed, there was no showing of prosecutorial misconduct and
McNeill has not shown that he was prejudiced.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
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of his right to petition the Supreme Court of the United States
for further review. If McNeill requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on McNeill. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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