Filed: Jun. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4795 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JARVIS NATHAN MCNEAL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-01049-RBH-1) Submitted: May 12, 2010 Decided: June 2, 2010 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federa
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4795 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JARVIS NATHAN MCNEAL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-01049-RBH-1) Submitted: May 12, 2010 Decided: June 2, 2010 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS NATHAN MCNEAL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-01049-RBH-1)
Submitted: May 12, 2010 Decided: June 2, 2010
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis Nathan McNeal appeals his convictions and the
189-month sentence imposed by the district court after he pled
guilty to armed bank robbery and brandishing a firearm during
and in relation to a crime of violence. McNeal’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that, in his opinion, there are no meritorious
grounds for appeal, but questioning whether McNeal’s plea was
knowing and voluntary, and whether the sentence imposed was
reasonable. McNeal has filed a pro se supplemental brief
arguing that the district court erred in granting an upward
departure under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3 (2007) based on his post-plea criminal conduct while on
bond for the instant offense. We affirm.
Because McNeal did not move in the district court to
withdraw his guilty plea, we review any error in the Fed. R.
Crim. P. 11 hearing for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). “To establish plain error,
[McNeal] must show that an error occurred, that the error was
plain, and that the error affected his substantial rights.”
United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007).
Our review of the record leads us to conclude that the district
court fully complied with Rule 11, and that McNeal’s guilty plea
was knowing and voluntary.
2
We next review McNeal’s sentence. We review a
sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires us
to ensure that the district court committed no significant
procedural error. United States v. Evans,
526 F.3d 155, 161
(4th Cir.), cert. denied,
129 S. Ct. 476 (2008). Significant
procedural errors include “‘failing to calculate (or improperly
calculating) the Guidelines range, . . . failing to consider the
[18 U.S.C.] § 3553(a) factors, . . . or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.’” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (quoting
Gall, 552 U.S. at
51). We then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. When reviewing a sentence on appeal, we
presume a sentence within the properly-calculated Guideline
range is reasonable. United States v. Allen,
491 F.3d 178, 193
(4th Cir. 2007).
Here, the district court departed upward in
calculating the applicable Guideline range, on the ground that
McNeal’s criminal history category under-represented the
seriousness of his criminal history. USSG § 4A1.3(a). When
reviewing a departure, we consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
3
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Under USSG §
4A1.3(a)(1), “[i]f reliable information indicates that the
defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes,
an upward departure may be warranted.” In determining whether
an upward departure is called for, the district court may look
to “[p]rior similar adult criminal conduct not resulting in a
conviction.” USSG § 4A1.3(a)(2)(E). See United States v.
Dixon,
318 F.3d 585, 591 (4th Cir. 2003) (approval of an upward
departure under § 4A1.3(a)(1) based on four pending charges).
We have reviewed the record and conclude that the
district’s court decision to depart upward was procedurally and
substantively reasonable. First, the testimony of the victims
of McNeal’s post-plea criminal conduct was reliable, and
indicated that McNeal had committed the crimes. Second, the
criminal conduct at issue was similar to the instant offense.
Third, McNeal’s post-plea crime spree was committed after he had
been released on bond for the instant offense so that he could
cooperate with the government.
In addition, the extent of the departure was
reasonable. McNeal’s post-plea criminal conduct provided
4
persuasive grounds for the district court to conclude that
McNeal’s criminal history classification in category II was
insufficient to reflect the seriousness of his criminal history,
or the likelihood that he would commit future crimes. The
district court moved horizontally from criminal history category
II to category IV by assigning criminal points based on McNeal’s
post-plea conduct. We conclude that this methodology complied
with the Guidelines requirement that, in deciding the extent of
a departure, the court shall use “as a reference, the criminal
history category applicable to defendants whose criminal history
or likelihood to recidivate most closely resembles that of the
defendant’s.” USSG § 4A1.3(a)(4)(A). Therefore, we conclude
that the extent of the district court’s departure was
reasonable.
Thus, we find that the district court properly
calculated the Guideline range. Further, the district court
considered the parties’ arguments and relevant § 3553(a)
factors, including McNeal’s history and characteristics and the
need for the sentence to protect the public, and reasonably
imposed a sentence at the high end of the advisory range.
Therefore, McNeal’s sentence is both procedurally and
substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
5
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform McNeal in writing of his
right to petition the Supreme Court of the United States for
further review. If McNeal requests that a petition be filed,
but counsel 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 a copy thereof
was served on McNeal.
We dispense with oral 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
6
