United States v. Neil Ness

United States Court of Appeals
For the Eighth Circuit
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No. 19-1724
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Neil George Ness
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: January 13, 2020
Filed: February 3, 2020
[Unpublished]
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Before KOBES, BEAM, and MELLOY, Circuit Judges.
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PER CURIAM.
Neil George Ness pleaded guilty to one count of possessing an unregistered
short-barreled shotgun in violation of 26 U.S.C. §§ 5845(a) and 5861(d). The district
court1 sentenced him to 37 months in prison—the bottom of his Guidelines range. On
appeal, Ness challenges his sentence as substantively unreasonable. We affirm.
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
The record must show that the district court considered the § 3553(a) factors, but we
do not require “a mechanical recitation” of all the factors. Id. Simply because the
district court weighed relevant factors more heavily than Ness would prefer does not
mean the district court abused its discretion. United States v. Farmer, 647 F.3d 1175,
1179 (8th Cir. 2011). “A within-Guidelines sentence is presumed reasonable.”
United States v. Williams, 913 F.3d 1115, 1116 (8th Cir. 2019) (per curiam).
Ness claims that the sentencing enhancements he received were unduly harsh
and that the district court did not properly consider his offense conduct (that the
firearm was not used for an illegal purpose), military service, work history, his Social
Security Disability status, and his age. The record shows the district court “carefully
considered each and every factor” and Ness’s arguments for a departure. Sentencing
Hr’g Tr. 15:25–19:23. It found no basis for a downward variance because his house
smelled strongly of marijuana, contained several firearms (including one with the
serial number removed), marijuana growing equipment, drug paraphernalia, and he
“permitted illegal conduct there.” Id. at 17:15–18:19. Accordingly, we find no abuse
of discretion.
Ness’s sentence is affirmed.
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1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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