US v. Marcus McNeill

Filing 920100331

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4404

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS ANTONIO MCNEILL, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:08-cr-00188-F-1)

Submitted:

March 16, 2010

Decided:

March 31, 2010

Before MICHAEL, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted Marcus McNeill of conspiracy to

distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (2006). guilty to distribution of cocaine base, McNeill also pleaded in violation of 21

U.S.C. § 841(a) (2006).

The district court sentenced McNeill to

a total of 420 months of imprisonment and McNeill now appeals. Finding no error, we affirm. McNeill first challenges the district court's refusal of his proposed jury instruction on multiple conspiracies.

"`The decision to give or not to give a jury instruction is reviewed Hurwitz, for 459 an F.3d abuse 463, of 474 discretion.'" (4th Cir. United States v.

2006)

(quoting

United

States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)). "A multiple conspiracy instruction is not required unless the proof at trial demonstrates that [the appellant was] involved only in separate charged 221 conspiracies in F.3d the 542, unrelated to the overall v.

conspiracy Squillacote,

indictment." 574 (4th Cir.

United 2000)

States

(internal

quotation marks and citation omitted) (emphasis in original). "Error will be found in a conspiracy instruction if the proof of multiple conspiracies was likely to have confused the jury into imputing guilt to [the defendant] as a member of one conspiracy because of the illegal activities 2 of members of the other

conspiracy."

United States v. Jeffers, 570 F.3d 557, 567 (4th (internal quotation

Cir.), cert. denied, 130 S. Ct. 645 (2009) marks and citation omitted). McNeill argues that the evidence

demonstrated

three

separate conspiracies to distribute cocaine base between McNeill and three witnesses who testified at trial. that, as this created a variance from the McNeill contends single conspiracy

charged in the indictment, the district court erred in refusing his proposed jury instruction on single versus multiple

conspiracies.

We have thoroughly reviewed the record, however,

and conclude that McNeill has failed to demonstrate that he was prejudiced by the court's refusal to charge the jury on multiple conspiracies. McNeill also challenges the procedural and substantive reasonableness reasonableness, of the sentence. an abuse We of review a sentence for

applying

discretion

standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the

sentence for "significant procedural error," including "failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, 3 or failing to adequately

explain the chosen sentence . . . ."

Gall, 552 U.S. at 51.

Finally, we "then consider the substantive reasonableness of the sentence imposed." Id. This court presumes on appeal that a

sentence within a properly calculated advisory guidelines range is substantively reasonable. See United States v. Go, 517 F.3d

216, 218 (4th Cir. 2008); Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding permissibility of presumption of

reasonableness for within guidelines sentence). McNeill first argues that the district court erred in calculating the drug weight attributable to him by relying on testimony of witnesses that was not credible. The district

court's determination of the drug amount involved is a factual issue reviewed for clear error. F.3d 964, 972 (4th Cir. 1996). of review, this court will United States v. Lamarr, 75 Under the clear error standard only a if "`left with has the been

reverse

definite

and

firm

conviction

that

mistake

committed.'"

United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). At sentencing, the Government need only establish the

amount of drugs involved by a preponderance of the evidence. United States v. Brooks, 524 F.3d 549, 560 n.20, 562 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008); United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). "[W]here there is no drug

seizure or the amount of drugs seized does not reflect the scale 4

of the offense, the court shall approximate the quantity of the controlled substance." 614 (4th Cir. 1994). We have reviewed the record and find that the district court did not err in relying on the testimony of trial witnesses to determine the drug weight it attributed to McNeill. See United States v. D'Anjou, 16 F.3d 604,

Cook, 76 F.3d at 604 (district court afforded "broad discretion as to what information to credit in making its calculations."). We therefore conclude that the district court properly

calculated the advisory guidelines range. McNeill next argues that the district court failed to adequately explain its chosen sentence and consider the parties' arguments range. Cir. for a sentence outside of the advisory guidelines

See United States v. Carter, 564 F.3d 325, 328-30 (4th 2009) (reaffirming that sentencing court must make

individualized assessment on the record and explain rejection of parties' arguments for sentence outside guidelines range). Our

review of the record, however, reveals that the district court properly regarding sentence. considered the sentence the and we parties' adequately find nonfrivolous explained the arguments its chosen is

Accordingly,

that

sentence

procedurally reasonable. Finally, McNeill argues that the sentence is

substantively unreasonable because the court relied on testimony 5

that was not credible in determining the drug weight and because the guidelines provide for harsher punishments for cocaine base offenses than cocaine offenses. rebut the presumption of McNeill has failed, however, to we we accord find to his the

reasonableness Therefore,

within-guidelines

sentence.

that

sentence is also substantively reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in the the materials decisional

would

aid

process. AFFIRMED

6