Filed: Mar. 31, 2010
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4404 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS ANTONIO MCNEILL, Defendant -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 Affirmed by unpublished per curiam opinion.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,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4404 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS ANTONIO MCNEILL, Defendant -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 Affirmed by unpublished per curiam opinion.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, ..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). McNeill also pleaded
guilty to distribution of cocaine base, 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 for an abuse of discretion.’” United States v.
Hurwitz, 459 F.3d 463, 474 (4th Cir. 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 conspiracies unrelated to the overall
conspiracy charged in the indictment.” United States v.
Squillacote,
221 F.3d 542, 574 (4th Cir. 2000) (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 of members of the other
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conspiracy.” United States v. Jeffers, 570 F.3d 557, 567 (4th
Cir.), cert. denied,
130 S. Ct. 645 (2009) (internal quotation
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. McNeill contends
that, as this created a variance from the 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 of the sentence. We review a sentence for
reasonableness, applying an abuse of 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, or failing to adequately
3
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. United States v. Lamarr, 75
F.3d 964, 972 (4th Cir. 1996). Under the clear error standard
of review, this court will reverse only if “‘left with the
definite and firm conviction that a mistake has been
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.” United States v. D’Anjou, 16 F.3d 604,
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
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 for a sentence outside of the advisory guidelines
range. See United States v. Carter, 564 F.3d 325, 328-30 (4th
Cir. 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 considered the parties’ nonfrivolous arguments
regarding the sentence and adequately explained its chosen
sentence. Accordingly, we find that the sentence is
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. McNeill has failed, however, to
rebut the presumption of reasonableness we accord to his
within-guidelines sentence. Therefore, we find that the
sentence is also substantively reasonable.
Accordingly, we affirm the judgment of the district
court. 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
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