United States v. McNeill

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN THOMAS MCNEILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-03-483-L)
Submitted: January 12, 2006 Decided: March 31, 2006
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Harvey Greenberg, Towson, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Bonnie S. Greenberg, Assistant
United States Attorney, Stephen Ruckman, Law Clerk, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin McNeill (McNeill) appeals his sentence following his
guilty plea to one count of armed bank robbery and aiding and
abetting the same, 18 U.S.C. §§ 2, 2113(a), (d), (f). We affirm.
McNeill pled guilty, pursuant to a plea agreement (the Plea
Agreement), during the time intervening between the Supreme Court’s
issuance of Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 543 U.S. 220 (2005). With one exception, the
Plea Agreement provided that McNeill waived his rights to challenge
his conviction and/or sentence on appeal. The sole exception is
that McNeill did not waive his right to make an appellate challenge
to his sentence based upon the ground that the United States
Sentencing Guidelines (USSG or the Guidelines) were
unconstitutional.
At sentencing, also during the time intervening between the
issuance of Blakely and Booker, the district court determined that
McNeill qualified to be sentenced as a career offender under USSG
§ 4B1.1,1 resulting in a total offense level of 31 (offense level
1
In relevant part, USSG § 4B1.1 provides:
(a) A defendant is a career offender if (1) the
defendant was at least eighteen years old at the
time . . . [of] the instant offense of conviction;
(2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at
least two prior felony convictions of either a
crime of violence or a controlled substance
offense.
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34 minus three levels for acceptance of responsibility, see USSG §
3E1.1) and a criminal history category of VI.2 This combination
resulted in a sentencing range of 188 to 235 months’ imprisonment.
The district court sentenced McNeill to 188 months’ imprisonment.
In the event the Supreme Court struck down the career offender
Guideline as unconstitutional, the district court imposed an
alternative sentence of 130 months’ imprisonment, which represented
the low-end of the applicable sentencing range if McNeill had not
been sentenced as a career offender under USSG § 4B1.1. With
respect to this alternative sentence, the district court expressly
declared: “[T]he alternative sentence is stated under the
assumption that the career offender sentence goes by the wayside in
a retroactive way.” (J.A. 121).
On appeal, McNeill first challenges as unenforceable the
appellate waiver provisions of the Plea Agreement to the extent
such provisions bar him from challenging his sentence on
nonconstitutional grounds. According to McNeill, the government’s
sole discretion under USSG § 3E1.1(b) to move for an additional
(b) . . . A career offender’s criminal history category
in every case under this subsection shall be
Category VI.
USSG § 4B1.1.
2
Indeed, the Plea Agreement expressly provided: “The parties
agree that your client is a career offender, and therefore his
offense level is 34, Criminal History Category VI, pursuant to
U.S.S.G. § 4B1.1.” (J.A. 62).
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one-level reduction in his offense level, if he assisted
authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to
enter a plea of guilty, caused him to involuntarily agree to the
appellate waiver provisions. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir.) (“A waiver has no binding effect if the
defendant did not enter into it knowingly and voluntarily
. . . .”), cert. denied, 126 S. Ct. 461 (2005). We have thoroughly
reviewed the record, including the transcript of McNeill’s plea
colloquy, and find his express agreement to all provisions of the
Plea Agreement to be knowing and voluntary. Accordingly, we hold
that, with the exception of challenging his sentence on the ground
that the Guidelines are unconstitutional, McNeill is barred from
challenging his sentence on appeal.
The only appellate challenge to his sentence that McNeill has
not waived is his argument that his 188-month sentence should be
vacated and his case remanded for resentencing to the 130-month
alternative sentence because, in sentencing him under the career
offender Guideline, the district court treated the Guidelines as
mandatory in violation of the Sixth Amendment. McNeill’s argument
is without merit.
A district court may enhance a sentence based on the “fact of
a prior conviction,” United States v. Thompson, 421 F.3d 278, 282
(4th Cir.), petition for cert. filed, __U.S.L.W.__ (U.S. Oct. 25,
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2005) (No. 05-7266), regardless of whether it was admitted to by
the defendant or found by a jury, so long as the facts necessary to
support the enhancement “inhere in the fact of conviction” rather
than being “extraneous to it,” id. at 283. Facts necessary to
support a sentencing enhancement inhere in the fact of conviction
rather than being extraneous to it so long as they come from “the
charging document, the terms of a plea agreement, the plea
colloquy, the statutory definition, or any explicit finding of the
trial judge to which the defendant assented to determine a disputed
fact about a prior conviction.” United States v. Collins, 412 F.3d
515, 521 (4th Cir. 2005).
Here, McNeill does not dispute that he qualified as a career
offender under USSG § 4B1.1 without violating the Sixth Amendment’s
jury-trial guarantee. Indeed, McNeill expressly states in his
appellate brief that he does not seek vacature of his sentence on
the ground that the indictment failed to charge the elements of
being a career offender under USSG § 4B1.1 or on the ground that a
jury did not find such elements beyond a reasonable doubt. Rather,
on appeal, he seeks resentencing on the sole ground that the
Guidelines are no longer mandatory.
McNeill is entitled to no appellate relief because the
district court’s treatment of the Guidelines as mandatory at
McNeill’s sentencing “is non-constitutional [error],” Collins, 412
F.3d at 524, and McNeill effectively waived his rights to mount an
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appellate challenge to his sentence based upon non-constitutional
error.
For the reasons stated herein, we affirm McNeill’s sentence.
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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