USA v. David McNeil

Filing

UNPUBLISHED OPINION FILED. [14-30885 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 03/19/2015 for Appellant David James McNeil [14-30885]

Case: 14-30885

Document: 00512949840

Page: 1

Date Filed: 02/26/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30885
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 26, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID JAMES MCNEIL,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CR-271
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *

Defendant-Appellant David James McNeil appeals the 72-month
sentence imposed following his guilty plea conviction for possession of
ammunition by a felon. The sentence represented an upward departure or
variance from the applicable guidelines range. On appeal, McNeil complains
that his sentence is substantively unreasonable because the district court
improperly speculated that he possessed the ammunition for nefarious

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 14-30885

Document: 00512949840

Page: 2

Date Filed: 02/26/2015

No. 14-30885
purposes. He maintains that the court either unreasonably disagreed with the
Sentencing Commission on the propriety of the Guidelines for his offense or in
fact punished him for his alleged participation in a theft of firearms, even
though he did not plead guilty to any offenses relating to the theft and the
district court had determined that the theft did not constitute relevant conduct.
We review sentences for substantive reasonableness, in light of the 18
U.S.C. § 3553(a) factors, under an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 49-51 (2007). The record confirms that the district court
listened to counsel’s arguments and made an individualized assessment based
on McNeil’s personal history and characteristics; the seriousness of the
underlying offense; and the need for the sentence to promote respect for the
law, to provide just punishment, to afford adequate deterrence, and to protect
the public. See id.; § 3553(a)(1), (2). Contrary to McNeil’s speculation, the
district court explicitly refused to consider the theft offense in determining the
appropriate sentence. McNeil has not shown that the decision to sentence him
above the advisory guidelines range failed to take into account “a factor that
should have received significant weight,” gave weight “to an irrelevant or
improper factor,” or represented “a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
As for the increase to 72 months of imprisonment from the 37-month top
of the guidelines range, we have upheld variances and departures greater than
the increase to McNeil’s sentence. See United States v. Brantley, 537 F.3d 347,
348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th
Cir. 2006). McNeil has failed to show that the district court’s justification for
the sentence imposed was insufficiently compelling. See Smith, 440 F.3d at
707. Consequently, the judgment of the district court is AFFIRMED.

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