United States v. Eugene McNeely ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10371
Plaintiff-Appellee, D.C. No. 4:17-cr-00204-JD-1
v.
EUGENE LATRELL MCNEELY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Eugene Latrell McNeely appeals from the district court’s judgment and
challenges the 168-month sentence imposed following his guilty-plea conviction
for transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
McNeely contends that the district court procedurally erred and violated his
right to due process by relying on allegedly unreliable hearsay statements in the
presentence report. This claim fails because the record reflects that the district
court did not rely on the challenged statements. Rather, consistent with Federal
Rule of Criminal Procedure 32(i)(3)(B), the district court determined that it was
unnecessary to rule on McNeely’s objections because the court would not consider
the statements in sentencing. The record does not support McNeely’s contention
that the court’s sentencing explanation nonetheless reflects reliance on the
challenged statements. We assume that the district judge meant what he said, see
United States v. Tapia, 665 F.3d 1059, 1062 (9th Cir. 2011), and the undisputed
portions of the record amply supported the court’s conclusion that McNeely’s
offense involved an “exceptional degree of manipulation and cruelty.”
McNeely also contends that the district court procedurally erred by failing to
address his arguments for a below-Guidelines sentence. We review for plain error,
see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The district court fully explained its reasons for
imposing a sentence at the bottom of the applicable Guidelines range. See United
States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc); see also United
States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008) (district court need not
specifically address each of the defendant’s arguments to show that it has
2 19-10371
considered them). Finally, contrary to McNeely’s contention, the within-
Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances. See Gall v. United States,
552 U.S. 38, 51 (2007).
AFFIRMED.
3 19-10371