US v. Andre McNeil, No. 10-4175 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4175 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANDRE DEMONTIO MCNEIL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (4:09-cr-00037-F-1) Submitted: September 27, 2011 Decided: October 6, 2011 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Andre Demontio McNeil pleaded guilty to possession of cocaine base, in violation of 21 U.S.C. § 841(a) (2006). The district court sentenced McNeil to 120 months of imprisonment, based on the statutory mandatory minimum sentence applicable to a defendant who has sustained a prior felony drug offense. See 21 U.S.C. § 841(b)(1)(B) (2006), current version at 21 U.S.C.A. § 841(b)(1)(B) (West Supp. 2011). McNeil timely appealed, and argues that his prior North Carolina conviction did not qualify as a predicate penalties. For felony the offense reasons that to increase follow, we the statutory affirm McNeil s conviction, but vacate the sentence and remand for resentencing. 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 Guidelines range, treating the Guidelines as mandatory, [(2006)] failing factors, to consider selecting a the [18 sentence U.S.C.] based § 3553(a) on clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. 2 Under 21 U.S.C. § 841(b)(1)(B) (2006), a defendant is subject to a statutory mandatory minimum term of imprisonment of five years unless he has sustained a prior conviction for a felony drug minimum offense, becomes ten in which years case of the statutory imprisonment. A mandatory felony drug offense is defined as an offense punishable by imprisonment for more than one year under any law . . . of a State. 21 U.S.C. § 802(44) (2006). Here, McNeil s prior conviction was for possession of marijuana, a Class I felony under North Carolina law. Moreover, at the time of his conviction, McNeil s prior record level was I, and the sentencing court found that he should be sentenced within the presumptive range of the applicable sentencing table under N.C. Gen. Stat. § 15A-1340.17(c) (2007). Under North Carolina law, McNeil faced a maximum term of imprisonment of eight months. See N.C. Gen. Stat. § 15A-1340.17(d) (2007). Therefore, McNeil could not have received a term of imprisonment exceeding twelve months for this prior conviction. In United States v. Simmons, 2011 WL 3607266 (Aug. 17, 2011) (en banc), we determined that an offense is not punishable by a term exceeding one year of imprisonment if the defendant could not imprisonment have for actually that received offense, history and other factors. more based on than his one prior year of criminal As McNeil could not have received a 3 term exceeding one year of imprisonment for his prior offense, he did not have a qualifying predicate offense to increase the statutory penalties under § 841(b)(1)(B). Because the advisory Guidelines range was determined based on the statutory mandatory minimum of 120 months, see U.S. Sentencing Guidelines Manual § 5G1.1 (2010), McNeil was sentenced based on an incorrect Guidelines calculation and an inapplicable statutory mandatory minimum. Thus the sentence is procedurally unreasonable. Accordingly, we affirm McNeil s conviction, but vacate the sentence and remand for resentencing. 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 IN PART, VACATED IN PART, AND REMANDED 4
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