Lengthy Sentences for Firearms, Drugs Affirmed

ered offense levels 32 and 33 and found that they did not ade- argued: january 29, 2010 offenses committed in 1991, 1992, and september 1994,2 plaintiff-appellee, opinion, in which judge niemeyer and judge kiser joined. ment of the temporal scope of the legal right." id. at 127 (cit- term of at least ten years." id. one for assault with a deadly weapon and one for common law robbery. for the eastern district of north carolina, at raleigh. that the maximum term prescribed by state law for an offense because mcneill had been previously convicted of crimes deference to the district court's reasoned and reasonable predicate conviction under the acca is determined as of the a district court may depart upward based on the inade- satisfy the appellate court that he has considered the parties' from police officers. additionally, the court took into account or what the court viewed as the near certain likelihood that published (5:08-cr-00002-d-1) 2000). we affirm. to the texas sentencing scheme at issue in hinojosa, and we substantial period of incarceration was required to deter defendant-appellant. offenses committed before october 1, 1994, and another gov- tion 922(g) violations if the defendant has three previous con- law. if mcneill were tried and convicted today for his drug make a newly recognized legal right retroactive is normally a sentencing act as a matter of law"). in effect, then, north § 924(e)(2)(a)(ii) (emphasis added). mcneill reasons that the the fifth circuit, however, reached a contrary conclusion distribute, a controlled substance . . . for which a maximum contrary to the interpretation of the second circuit in dar- and that mcneill's crimes were becoming increasingly more presented the seriousness of his criminal history and likeli- recidivism and criminal history factors that guide an upward traxler, chief judge: to determine whether the defendant's previous convictions state law . . . for which a maximum term of imprisonment of sions, the crimes underlying mcneill's drug convictions now find the fifth circuit's reasoning in that case to be persuasive. armed career criminal enhancements already encompassed the departure under u.s.s.g. § 4a1.3. mcneill also relies on united states v. darden, 539 f.3d the case. see u.s.s.g. § 4a1.3(a)(4); united states v. dalton, parker, assistant united states attorney, office of the to be sure, a "`sentencing judge should set forth enough to ment. offense levels until it finds a guideline range appropriate to to explain its rejection of the mitigating factors from imprisonment of at least ten years both at the time he commit- den, the date on which mcneill committed his crime is criti- law." 18 u.s.c.a. § 924(e)(2)(a)(ii). the probation officer carry a maximum penalty of at least ten years in prison at the finally, mcneill contends the district court erred by failing to mcneill's argument that an upward departure is contem- quately reflect the seriousness of mcneill's criminal history tences do not apply to crimes committed before the effective § 4a1.3(a)(4)(b). erning offenses committed after october 1, 1994. in this (2007); kimbrough v. united states, 552 u.s. 85 (2007); and considered all of the arguments of defense counsel, the defen- able. 2 move horizontally across successive criminal history catego- (repealed 1993). north carolina subsequently revised its sen- ated. also, the court acknowledged mcneill's lack of positive dant's own statement, the presentence report, and all of the 1 dant's criminal history or the likelihood that the defendant 7united states v. mcneill revisions. see n.c. gen. stat. § 15a-1340.10; state v. texas's criminal code qualified as "serious drug offenses" accordingly, for the foregoing reasons, we hereby affirm united states v. evans, 526 f.3d 155, 160 (4th cir. 2008) utory interpretation [that we] review[ ] de novo." united within the advisory guideline range of 262 to 327 months' 2000). lent criminal record. it noted that mcneill's work history was for the fourth circuit anticipated that an upward departure might apply in the case mcneill was subsequently indicted for unlawful possession here, the court emphasized mcneill's extensive criminal federal sentencing for the simple reason that "the acca's the district court held that the maximum sentence for a ated and on parole, mcneill continued to engage in inappro- the enhancement qualify as predicate offenses under the tory category iv or v, it is clear that the guidelines appellant. anne margaret hayes, office of the united 4 united states v. mcneill criminal histories. the district court also stated that it had almost nonexistent as he spent much of his adult life incarcer- ton court vacated the district court's sentence and remanded serious drug offenses under the acca.1 in support of his view, mcneill points us to united states imposes a mandatory minimum sentence of 15 years for sec- state v. johnson, 167 s.e.2d 274, 279 (n.c. 1969). the sentencing policy of each state as the measure of the seri- 473 f.3d 118, 123 (4th cir. 2007). 6 united states v. mcneill states v. brandon, 247 f.3d 186, 188 (4th cir. 2001). impose a ten-year sentence at the time of sentencing, the mor- remedial decision that should not be confused with an assess- 10 united states v. mcneill james c. dever iii, district judge. 8 united states v. mcneill category vi. see u.s.s.g. § 4b1.4 cmt. background; u.s.s.g. the court recognized that mcneill's latest offenses were very the tennessee sentencing scheme at issue in morton, texas's 1994, it specifically provided that the revised sentences would judgment." id. at 122 (emphasis in original). moreover, the plated only where armed career criminals have a criminal his- iv. defender, g. alan dubois, assistant federal public term of imprisonment of ten years or more is prescribed by mcneill also argues that the district court erred in finding tion indicates that the defendant's criminal history category offense as "an offense under state law, involving manufactur- decided: march 8, 2010 59-60). 116, 121 (2d cir. 2008). in darden, the second circuit found which the maximum term is tied for purposes of the acca." not apply to crimes committed before the effective date of the in united states v. hinojosa, 349 f.3d 200 (5th cir. 2003). in addition, the extent of the departure was reasonable. a armed career criminal and then departed upward from the mcneill evaded the police for several miles. he then made an distribution, along with $369 in u.s. currency. ousness of the drug offense"--and decided it was "eminently united states of america, gen. stat. § 15a-1340.17. serious drug offense. it stated that "the decision whether to imprisonment would serve the factors set forth in § 3553(a). ing him as an armed career criminal because only two of the the acca defines "serious drug offense" as "an offense under ries up to category vi, and, if category vi is inadequate, the to 1 october 1994, the effective date of the structured sen- guideline range most appropriate in this case. under these cir- revised scheme "specifically provides that the revised sen- mcneill's 1992 and 1995 convictions in north carolina for guilty to counts one and two, and count three was dis- defendant's previous trafficking offenses serious enough to u.s.c.a. § 924(c)(1)(a)(i) (west 2000). mcneill pleaded will commit other crimes." u.s.s.g. § 4a1.3(a)(1). contrary illegal substance during his current state sentence. the court v. no. 09-4083 mcneill does not dispute that he has two other qualifying convictions: iii. ted the offenses and at the time of his federal sentencing. predicates for the defendant's armed career criminal status. at mcneill first argues that the district court erred in sentenc- in relation to a drug trafficking crime (count three), 18 the offense conduct is not part of the offense of conviction to mcneill's sentence. victions "for a violent felony or a serious drug offense." 18 victions upon which the district court relied do not qualify as past, including convictions for 21 criminal offenses. the court of a firearm (count one), 18 u.s.c.a. § 922(g)(1), posses- 3united states v. mcneill firearm violated 18 u.s.c.a. § 922(g)(1). the acca time of the underlying offense. mcneill, however, argues that under morton, [the defendant's] previous convictions would tencing laws, and under the 1994 structured sentencing revi- carter, 564 f.3d 325, 328 (4th cir. 2009) (quoting rita, 551 u.s.c.a. § 841(a)(1), and possession of a firearm during and maximum sentences of ten years. see n.c. gen. stat. § 15a- as is relevant here, the acca defines a serious drug the sentencing range." united states v. hernandez-villanueva, had previously failed to stop mcneill and that an upward mcneill revealed 3.1 grams of crack cocaine, packaged for cumstances, we do not find the court abused its discretion in ment, learn vocational skills, and receive mental health treat- imprisonment on count two, the maximum sentence applica- before traxler, chief judge, niemeyer, circuit priate and illegal conduct, including the possession of an ing, distributing, or possessing with intent to manufacture or 5united states v. mcneill statute's use of the present tense "is" reflects congressional provide time for mcneill to receive substance abuse treat- opinion arguments and has a reasoned basis for exercising his own that the criminal history category of vi substantially underre- "[a]n appellate court must defer to the trial court and can sentencing reform had no bearing on whether an offense is a mcneill's young age in comparison to his extensive and vio- here, the court thoroughly considered whether a sentence reverse a sentence only if it is unreasonable, even if the sen- intent to defer to a state's current judgment regarding whether mcneill and found a .38-caliber smith & wesson revolver victions that predated the effective date of the revisions to it deems a particular drug offense serious. u.s. at 356). however, an appellate court "`should [give] due hood of recidivism. he claims that the career offender and for sentencing under the acca because the drug-related con- second circuit looked to the statute's purpose--"to defer to rita v. united states, 551 u.s. 338 (2007)). when reviewing when north carolina revised its sentencing scheme in lying on the ground underneath mcneill's body. a search of substantially under-represents the seriousness of the defen- referring to the applicable state law." id. additionally, the 9united states v. mcneill also pointed out that mcneill had multiple unscored offenses violent. furthermore, the court considered that while incarcer- be for `serious drug offenses' because if he were sentenced by court must then vertically traverse to successively higher sitting by designation. accordingly, the court found offense level 34 yielded the the district court thoughtfully and thoroughly applied the quately explain[ed] the chosen sentence." gall, 552 u.s. at missed at sentencing. the court determined mcneill to be an 2 united states v. mcneill carrying sentences of more than one year, his possession of a should be determined according to the law at the time of the mcneill from committing violent and other felonies and pro- tencing act, fall under the sentencing guidelines of the fair a departure, we consider "whether the sentencing court acted mcneill will commit other crimes, including violent crimes. states attorney, raleigh, north carolina, for appel- united states court of appeals ten years or more is prescribed by law." 18 u.s.c.a. 50. therefore, we conclude the chosen sentence was reason- armed career criminal act ("acca"), 18 u.s.c.a. § 924(e) judge for the western district of virginia, circuit held that principles of lenity required the district court carry a maximum penalty of 25 months in prison. see n.c. october 1994 sentencing statutes. mcneill's previous felony §§ 922(g)(1) (west 2000); 21 u.s.c.a. § 841(a)(1) (west decision that the § 3553(a) factors, on the whole, justif[y] the date of the revisions." id. the court concluded that "even of an armed career criminal and that an upward departure affirmed by published opinion. chief judge traxler wrote the the plain language of the statute makes clear that in order to on february 28, 2007, fayetteville, north carolina police affirmed mcneill's history and characteristics. the court considered definition of a `serious drug offense' uses the present tense in defender, office of the federal public vide public protection from mcneill, but that it would also e. b. holding, united states attorney, jennifer p. may- in original). accordingly, the court found that the "timing of (west 2000). "whether [a prior] conviction qualifies as a ing. see id. at 915. because tennessee did not consider the eral public defender, raleigh, north carolina, for court that elects to upwardly depart under section 4a1.3 must legal decisionmaking authority'" by articulating how the sen- for resentencing. see id. departing upward. reasonable for congress to defer to the state lawmaker's cur- sentence.'" evans, 526 f.3d at 162 (quoting gall, 552 u.s. at sentence and with respect to the extent of the divergence from time of the defendant's federal sentencing. as quoted above, under the acca. see id. at 205. the court noted that, unlike tence would not have been the choice of the appellate court." nection with his possession of crack cocaine when he fled who prepared mcneill's presentence report identified after he was convicted of unlawful possession of a firearm united states attorney, raleigh, north carolina, he united states sentencing guidelines to sentence mcneill to ble to mcneill under 21 u.s.c.a. § 841(b)(1)(c) (west 300 months' imprisonment on count one and 240 months' serious. mcneill was in illegal possession of a firearm in con- judge, and jackson l. kiser, senior united states district id. u.s.c.a. § 924(e)(1). mcneill contends that he is not eligible departure was necessary to deter mcneill from future v. morton, 17 f.3d 911 (6th cir. 1994), in which the sixth were serious drug offenses at the time of the federal sentenc- abrupt stop and fled from his vehicle. an officer tackled the hinojosa court held that the defendant's three drug con- second circuit determined that the nonretroactivity of the counsel reasonably both with respect to its decision to impose such a ing danforth v. minnesota, 552 u.s. 264 (2008)) (emphasis would be subject to the higher sentences imposed by the pre- mately 3.1 grams of crack cocaine. see 18 u.s.c.a. as an armed career criminal. branch, 518 s.e.2d 213, 215 (n.c. ct. app. 1999) (explain- for appellee. officers attempted to effect a routine traffic stop after observ- appeal from the united states district court ii. predicate conviction under section 924(e) is a question of stat- north carolina has no statute of limitations for felony offenses. see lee. on brief: thomas p. mcnamara, federal public carolina has two sentencing schemes ­ one governing evidence on the record. finally, the court concluded that a procedurally or substantively unreasonable. rent judgment rather than to the state lawmaker's discarded the state . . . today, he would still be subject to a maximum sion with intent to distribute crack cocaine (count two), 21 cal to the determination of his sentence under north carolina selling cocaine and possession with intent to sell cocaine as clifton terelle mcneill appeals from the sentence imposed and unlawful possession with intent to distribute approxi- determined that the north carolina criminal justice system quacy of the defendant's criminal history if "reliable informa- 477 f.3d 195, 200 (4th cir. 2007). the district court consid- prescribed sentencing factors to the facts of the case and "ade- defender, raleigh, north carolina, for appellant. george might occur where a defendant's criminal history falls within role models or familial network, and his family members' qualify as a "serious drug offense," the state offense must therefore, we conclude that mcneill was properly sentenced v. argued: james edward todd, jr., office of the fed- clifton terelle mcneill, ing that the defendant's "offenses that were committed prior regard, north carolina's revised sentencing scheme is similar ing determination. tencing factors apply to the case before it. united states v. 1340.1, et seq. (repealed 1993); n.c. gen. stat. § 14-1.1 ing a car driven by mcneill travel through a red light. drug convictions were punishable by a maximum term of offenses. accordingly, the court's decision to depart was not previous offenses relied on by the district court in applying i. the time mcneill committed these offenses, the crimes carried (emphasis omitted) (citing gall v. united states, 552 u.s. 38 mcneill's childhood and adolescence in the court's sentenc-