US v. Jarvis McNeal, No. 09-4795 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4795 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JARVIS NATHAN MCNEAL, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, reasonable. McNeal arguing the that departure under and has filed district U.S. whether a court the sentence imposed pro se supplemental erred in granting Sentencing Guidelines Manual an was brief upward ( 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 for abuse of discretion. sentence. We review a Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to district ensure that the procedural error. court committed no significant 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. presume a sentence range is reasonable. When reviewing a sentence on appeal, we within the properly-calculated Guideline 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 seriousness of his criminal history. under-represented USSG § 4A1.3(a). the 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 Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). 4A1.3(a)(1), defendant s [i]f reliable criminal information history category v. Hernandez- Under USSG § indicates that substantially the 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. of McNeal s post-plea First, the testimony of the victims criminal conduct was indicated that McNeal had committed the crimes. reliable, and 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 reasonable. addition, McNeal s the extent post-plea 4 of the criminal departure conduct was provided persuasive McNeal s grounds criminal for the history district court classification to in conclude category II that 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. that the USSG § 4A1.3(a)(4)(A). extent of the Therefore, we conclude district court s departure was reasonable. Thus, we find that the calculated the Guideline range. considered the parties district court properly Further, the district court arguments and relevant § 3553(a) factors, including McNeal s history and characteristics and the need for imposed the a Therefore, sentence sentence McNeal s to at the protect high sentence the end is public, of both the and reasonably advisory range. 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 before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6
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