United States v. Robert Neuzil , 405 F. App'x 80 ( 2010 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 10-2184
    ___________
    United States of America,                *
    *
    Plaintiff - Appellee,              *
    * Appeal from the United States
    v.                                 * District Court for the
    * Northern District of Iowa.
    Robert Anthony Neuzil,                   *
    *      [UNPUBLISHED]
    Defendant - Appellant.             *
    ___________
    Submitted: December 17, 2010
    Filed: December 23, 2010
    ___________
    Before LOKEN and BYE, Circuit Judges, and MARSHALL,* District Judge.
    ___________
    PER CURIAM.
    Robert Neuzil in Iowa called his estranged wife in Minnesota in April 2009,
    instructing her to put their children in the basement because he was coming to kill her
    and her family. His wife reported the threat, and law-enforcement officers intercepted
    Neuzil driving toward Minnesota with a loaded handgun, two knives, three rifles, and
    ammunition in the car. A warrant search of Neuzil’s residence uncovered firearms
    and explosive devices, including at least one “destructive device.” See U.S.S.G.
    § 2K2.1(b)(3)(B). After indictment, Neuzil pleaded guilty to three counts of
    *
    The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
    District of Arkansas, sitting by designation.
    possessing unregistered firearms in violation of 
    26 U.S.C. §§ 5845
    (a), (e), 5861(d),
    and 5871. The government dismissed additional charges of interstate stalking, 18
    U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(3), and transmitting a threatening
    communication in interstate commerce, 
    18 U.S.C. § 875
    . At sentencing, the district
    court1 determined an advisory guidelines sentencing range of 70 to 87 months. After
    considering the government’s motion for an upward variance, Neuzil’s motion for a
    downward variance, and the sentencing factors set forth in 
    18 U.S.C. § 3553
    (a), the
    district court sentenced Neuzil to the statutory maximum of 120 months in prison for
    each weapons count, to be served concurrently. Neuzil appeals, arguing procedural
    and substantive sentencing error. We affirm.
    Neuzil’s claims of procedural error were not raised in the district court, so our
    review is for plain error. United States v. Townsend, 
    618 F.3d 915
    , 918 (8th Cir.
    2010); Fed. R. Crim. P. 52(b). The contentions are plainly without merit. First, a
    district court may properly consider misconduct charged in dismissed counts in
    deciding whether to depart or vary upward from the advisory guidelines range. See
    United States v. Ademi, 
    439 F.3d 964
    , 966-67 (8th Cir. 2006); U.S.S.G. § 5K2.21.
    Neuzil did not to object to the Presentence Investigation Report’s description of his
    repeated, violent threats against his estranged wife. See United States v. Oaks, 
    606 F.3d 530
    , 541-42 (8th Cir. 2010). Second, ample evidence supported the district
    court’s finding that Neuzil was “a very dangerous person.” Indeed, his own expert
    conceded at sentencing that there were “indications of some risk of dangerousness.”
    Third, the argument that the district court did not adequately explain its application
    of the 
    18 U.S.C. § 3553
    (a) sentencing factors is belied by the court’s discussion at
    sentencing. See United States v. Lazarski, 
    560 F.3d 731
    , 733 (8th Cir. 2009). There
    was no procedural error, plain or otherwise.
    1
    The Honorable Linda R. Reade, Chief Judge of the United States District
    Court for the Northern District of Iowa.
    -2-
    Neuzil’s additional argument that the district court imposed a substantively
    unreasonable sentence is likewise without merit. We review the reasonableness of the
    sentence under a deferential abuse-of-discretion standard. “[I]t will be the unusual
    case when we reverse a district court sentence -- whether within, above, or below the
    applicable Guidelines range -- as substantively unreasonable.” United States v.
    Feemster, 
    572 F.3d 455
    , 464 (8th Cir. 2009) (en banc). Here, the court noted that this
    was not “a run-of-the-mill simple possession of an unregistered firearm.” Because
    Neuzil repeatedly threatened his wife and her family, “has a fascination with firearms
    and destructive devices,” “has a tendency to use alcohol to excess,” and failed to show
    genuine remorse for his unlawful actions, the court concluded that an upward variance
    was needed “to protect the public from further crimes of the defendant.” There was
    no abuse of discretion.
    The judgment of the district court is affirmed.
    ______________________________
    -3-
    

Document Info

Docket Number: 10-2184

Citation Numbers: 405 F. App'x 80

Judges: Loken, Bye, Marshall

Filed Date: 12/23/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024