United States v. Robert Neely

United States Court of Appeals
For the Eighth Circuit
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No. 16-2861
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert Lemar Neely
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 3, 2017
Filed: June 6, 2017
[Unpublished]
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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
Robert Lemar Neely was sentenced to 72 months’ imprisonment after pleading
guilty to one count of being a felon in possession of a firearm. Neely challenges this
within-guidelines sentence as substantively unreasonable, claiming that the district
court1 failed to give sufficient weight to certain mitigating circumstances. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
On May 29, 2015, an officer with the Plymouth Police Department initiated a
traffic stop of a vehicle in which Neely was riding as a passenger. During the stop,
the officer detected an odor of marijuana, searched the car, and found a loaded Taurus
.38 caliber revolver in a gray bag in the backseat. Neely admitted that the gun was
his. Two months later, a federal grand jury indicted Neely on one count of being a
felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1).
Pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(2), the
Presentence Investigation Report (“PSR”) set the base level offense at 24 because
Neely possessed the firearm after sustaining two felony convictions for crimes of
violence. The PSR next recommended a three-level reduction for acceptance of
responsibility. Consequently, Neely’s total offense level was 21, and with a criminal
history category of V, his advisory sentencing guideline range was 70 to 87 months’
imprisonment.
At Neely’s sentencing hearing, the district court adopted the PSR guidelines
calculations and confirmed that neither party had any relevant objections. The court
also noted that it had received and considered a number of pre-hearing filings,
including the parties’ sentencing position memoranda and letters from Neely’s
mother, the mother of his children, and Neely himself. During argument, Neely’s
counsel sought a 36-month sentence. Primarily, he claimed that Neely possessed the
gun out of concern over an alleged string of assaults and threats received as a result
of testifying as a state witness in a 1998 murder trial. He also discussed Neely’s
difficult childhood. Neely himself then addressed the court, expressing remorse for
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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his conduct and describing his commitment to his two children. The Government
responded by acknowledging that Neely had faced difficult circumstances in his life,
but it emphasized that he still bore responsibility for his violent past. Specifically,
the Government noted that Neely had four adult felony convictions and numerous
misdemeanor and gross misdemeanor convictions. The district court then analyzed
the relevant 18 U.S.C. § 3553(a) factors. The court expressly addressed Neely’s main
argument for a below-guidelines sentence, questioning whether his numerous
probation violations “were all related to . . . his fear of people coming after him.”
Then, stressing the need to promote general deterrence and respect for the rule of law,
the court sentenced Neely to 72 months’ imprisonment, near the bottom of the
guidelines range. Neely timely filed this appeal.
Neely challenges his sentence as substantively unreasonable, claiming that it
was greater than necessary to accomplish the goals set forth in § 3553(a).
Specifically, he suggests that the district court gave too little weight to the history of
assaults and threats related to his testimony in the 1998 murder trial. “We review the
substantive reasonableness of a sentence under an abuse-of-discretion standard.”
United States v. Clay, 622 F.3d 892, 895 (8th Cir. 2010) (citing Gall v. United States,
552 U.S. 38, 51 (2007)). As we have previously noted, this type of review “is narrow
and deferential,” and “it 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) (citation omitted). Further, “sentences that fall within the Guidelines
range are presumptively reasonable on appeal.” United States v. Townsend, 617 F.3d
991, 994 (8th Cir. 2010) (per curiam) (citations omitted).
Neely argues that the district court abused its discretion “by neglecting entirely
the history of assaults and threats to his life,” claiming that “[t]he sentencing
transcript is completely devoid of any discussion by the district court regarding Mr.
Neely’s experiences following his agreement to be a witness.” This argument
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collapses under the weight of the record. As noted above, the district court expressly
addressed Neely’s purported mitigating circumstances, questioning whether Neely’s
numerous crimes and probation violations over the fifteen years following his
testimony “were all related to . . . his fear of people coming after him.” Neely’s
counsel responded by conceding that this was not the case. Thus, the record makes
clear that the district court acknowledged, understood, and considered the mitigating
factors that Neely presented. The court simply did not agree that these factors
warranted a more lenient sentence. As we have previously held, where a “district
court was clearly aware of the facts alleged and took them into account . . . [a
defendant] must show more than the fact that the district court disagreed with his
view of what weight ought to be accorded certain sentencing factors.” Townsend,
617 F.3d at 995. Because Neely fails to do so here, we conclude that the district court
did not abuse its discretion in sentencing him to 72 months’ imprisonment.
Accordingly, we affirm Neely’s sentence.
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