United States v. McNeil

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4492
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL RAY MCNEIL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-98)
Submitted: March 23, 2005 Decided: May 4, 2005
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., Wilmington,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carl Ray McNeil, Jr., appeals his convictions and 447
month sentence for possession of a firearm as a convicted felon and
use of a firearm in the commission of a felony, in violation of 18
U.S.C. §§ 922, 924 (2000). Finding no error, we affirm.*
McNeil first claims that the district court erred in its
determination that he is an armed career criminal. Criminal
defendants may waive their statutory right to direct appeal as part
of a plea agreement with the government. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992). For a waiver to be effective,
the plea agreement must be entered into knowingly and voluntarily,
and the district court must specifically inquire as to the
defendant’s knowledge of the waiver provision. Id. Our review of
the plea colloquy indicates that it was conducted in compliance
with Fed. R. Crim. P. 11, that McNeil entered his plea knowingly
and voluntarily, and that the district court apprised him of the
appellate waiver provision. Accordingly, we conclude that the
terms of the plea agreement are enforceable against McNeil and
preclude his claim with respect to his status as an armed career
criminal.
*
McNeil has not raised a claim under either United States v.
Booker, 125 S. Ct. 738 (2005), or Blakely v. Washington, 124 S. Ct.
2531 (2004). Thus, he has waived review of any claim that his
sentence was improper in light of Booker or Blakely.
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McNeil next assigns error to the district court’s
two-level upward departure on the basis of extreme psychological
injury and conduct. This claim was not precluded by the appellate
waiver. We review a district court’s decision to depart from the
Sentencing Guidelines range for an abuse of discretion. Koon v.
United States, 518 U.S. 81, 100 (1996); see also United States v.
Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). A district court may
depart from a guideline range if it identifies a factor that is an
encouraged basis for departure and is not taken into account by the
applicable guideline. See United States v. Brock, 108 F.3d 31, 34
(4th Cir. 1997). The sentencing guidelines list as bases for
departure “extreme psychological injury” and “extreme conduct.”
U.S. Sentencing Guidelines Manual §§ 5K2.3 & 5K2.8 (2001). Our
review of the record demonstrates both that Deputy Eric Bryan
suffered such psychological injury not otherwise accounted for by
the guidelines and that McNeil’s conduct was extreme within the
meaning of the guidelines. Accordingly, we conclude the district
court did not abuse its discretion in departing upward under the
sentencing guidelines.
In his final claim, McNeil argues the district court
erred in awarding restitution to his victim, Deputy Bryan, North
Carolina Victim/Witness Services, and the relevant workers’
compensation insurance carrier. The Government argues the claim is
waived by the terms of its plea agreement. We disagree, because
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neither the plea agreement nor the record of McNeil’s plea colloquy
discloses any discussion of a waiver of appellate rights with
regard to a restitution order. Accordingly, we consider the claim
on its merits.
Under the Mandatory Victims Restitution Act (“MVRA”), the
district court may order a defendant to pay restitution to any
victim of an offense of conviction. See 18 U.S.C. § 3663A(a)(1)
(2000); U.S. v. Newsome, 322 F.3d 328, 340 (4th Cir. 2003)
(observing authority of district court to order restitution for
“all identifiable victims”). An individual is a victim under
§ 3663A if he is “a person directly or proximately harmed as a
result of the commission of an offense.” § 3663(a)(2). This
includes third parties otherwise responsible for the costs of
assisting a principal victim. See United States v. Johnson, ___
F.3d ___, 2005 WL 526889 (4th Cir. Mar. 8, 2005) (citing United
States v. Cliatt, 338 F.3d 1089 (9th Cir. 2003)). We conclude that
the district court’s order of restitution falls squarely within the
scope and the intent of the MVRA. Accordingly, we deny this final
claim.
We affirm the judgment of the district court. 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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