USA v. David McNeil


UNPUBLISHED OPINION FILED.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]

Download PDF
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?