US v. Norman McNeill

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00448-WO-1 Copies to all parties and the district court/agency. [998385327] [09-5193]

US v. Norman McNeill

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Date Filed: 07/22/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5193 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORMAN JAMES MCNEILL, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00448-WO-1) Submitted: June 28, 2010 Decided: July 22, 2010

Before KING, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Norman James McNeill appeals his conviction following a plea agreement 50.1 and grams 120 of month sentence base for in one count of of 21

distributing

cocaine

violation

U.S.C. § 841(a)(1), (b)(1)(A) (2006).

McNeill's counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for

appeal, but questioning whether McNeill's sentence, which was the statutory mandatory minimum, was reasonable. McNeill was

advised of his right to file a pro se supplemental brief, and has done so. For the reasons that follow, we affirm.

"Regardless of whether the sentence imposed is inside or outside the the [g]uidelines under range, an the appellate court must

review

sentence

abuse-of-discretion

standard."

Gall v. United States, 552 U.S. 38, 51 (2007). are charged with reviewing sentences for

Appellate courts reasonableness,

considering both the procedural and substantive reasonableness of a sentence. In assess Id. determining the procedural court reasonableness, properly we first the

whether

district

calculated

defendant's advisory guidelines range.

Id. at 51.

We then

determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a 2

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sentence

based

on

"clearly the

erroneous

facts,"

or

failed

to

sufficiently States v.

explain 511

selected 468,

sentence. 473

Id.;

United "The

Pauley,

F.3d

(4th Cir. 2007).

district court `must make an individualized assessment[,]'. . . apply[ing] the relevant § 3553(a) factors to the specific

circumstances of the case before it." 564 F.3d 325, 328 (4th Cir. 2009)

United States v. Carter, (quoting Gall v. United

States, 552 U.S. 38, 50 (2007)). Additionally, a district judge must detail in open

court the reasons behind its chosen sentence, "`set[ting] forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" Id. (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)). Finally, we review the substantive reasonableness of the sentence, "taking into account the `totality of the

circumstances, including the extent of any variance from the [g]uidelines range.'" 552 U.S. at 51) Here, it is clear that the district court's sentence was procedurally reasonable. Guidelines provided The district at 120 court to 150 properly months' Pauley, 511 F.3d at 473 (quoting Gall,

calculated

McNeill's and

range

imprisonment,

an

individualized

assessment,

explicitly stating why he chose to sentence McNeill to the lower 3

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end

of

the

Guidelines

range.

Accordingly,

we

find

that

McNeill's sentence was procedurally reasonable. This calculated court accords range a sentence an within the properly of

guidelines

appellate

presumption

reasonableness.

United States v. Abu Ali, 528 F.3d 210, 261 Such a

(4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).

presumption can be rebutted only by showing "that the sentence is unreasonable when measured against the § 3553(a) factors." United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

McNeill's

sentence was within the Guidelines range, and his counsel has not demonstrated that the sentence was unreasonable. We

therefore find that his sentence was substantively reasonable. McNeill raises one issue in his pro se supplemental brief: whether the Assistant United States Attorney who

prosecuted his case was licensed to practice law at the time he entered the plea agreement. that even if the After reviewing the record, we find attorney was not properly

Government's

licensed, there was no showing of prosecutorial misconduct and McNeill has not shown that he was prejudiced. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment.

This court requires that counsel inform his client, in writing, 4

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of his right to petition the Supreme Court of the United States for further review. filed, but counsel If McNeill requests that a petition be believes that such a petition would be

frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral

a copy thereof was served on McNeill.

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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