U.S. v. McNeil

• Decision Date: 26 August 1996
• Docket Number: 94-1650,Nos. 94-1449,s. 94-1449
• Citation: 90 F.3d 298
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Larry J. McNEIL, also known as Larry J. McNeill, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 298

90 F.3d 298

UNITED STATES of America, Appellee/Cross-Appellant, v. Larry J. McNEIL, also known as Larry J. McNeill Appellant/Cross-Appellee.

Nos. 94-1449, 94-1650.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 8, 1996.

Decided July 22, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Aug. 26, 1996.

Jack Faith, Sioux City, IA, argued, for appellant.

Timothy Jarman, Asst. U.S. Atty., Sioux City, IA, argued, for appellee.

Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Larry J. McNeil appeals from the 121-month sentence imposed upon him by the district court following McNeil's pleas of guilty to one count of conspiracy with intent to distribute cocaine base and one count of unlawfully acquiring food stamps. McNeil contends (1) that the district court erred in its determination that he was a career offender, (2) that he was entitled to a downward adjustment for his role in the offense, (3) that the district court's drug quantity determinations were erroneous, and (4) that the district court should have departed further downward because of the disparate treatment black defendants allegedly receive under the enhanced statutory and guideline penalties imposed for cocaine base offenses. The government cross appeals, arguing that a downward departure was not justified. We affirm in part and reverse and remand in part.

I.

At sentencing, the district court determined that McNeil was a career offender based on his two prior state court convictions in North Carolina for breaking and entering dwellings. Applying U.S.S.G. § 4B1.1, the district court determined a base offense level of 32 for McNeil. The court awarded him a three-level reduction in his base offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1(b), and initially assigned him a criminal history category of VI, which resulted in a presumptively correct guidelines sentencing range of 151 to 188 months. Relying on United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991), and United States v. Senior, 935 F.2d 149, 151 (8th Cir.1991), the district court, over the government's objection, granted McNeil's motion for a downward departure pursuant to U.S.S.G. § 4A1.3, finding that a criminal history category of VI overstated the seriousness of McNeil's past criminal conduct. The court departed downward to criminal history category IV with a resultant sentencing range of 121 to 151 months. The district court then sentenced McNeil to a 121-month term to be served concurrently with both a 10-year Iowa state sentence McNeil was then serving for sexual abuse in the third degree and a concurrent 5-year sentence he also received in state court for assault with intent to commit sexual abuse.

The role of the reviewing court on appeal from a sentencing determination is to "determine whether the sentence--(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside of the applicable guideline range, and is unreasonable ...; or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." 18 U.S.C. § 3742(e) (1988). We "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e)(4).

Given the facts of this case, we determine that the district court was correct in concluding that McNeil is a career offender under the Sentencing Guidelines. Each of McNeil's prior North Carolina state court felony convictions for breaking and entering dwellings qualifies as a predicate "crime of violence" for the purposes of the career offender guideline. U.S.S.G. § 4B1.1. See U.S.S.G. § 4B1.2(1)(ii) (defining the term "crime of violence" as including burglary of a dwelling). See also United States v. Fonville, 5 F.3d 781, 784 & n. 8 (4th Cir.1993) (finding a North Carolina conviction for breaking and entering a dwelling to be a crime of violence within the meaning of U.S.S.G. § 4B1.2(1)(i), (ii) and § 4B1.1), cert. denied, --- U.S. ----, 114 S.Ct. 1839, 128 L.Ed.2d 466 (1994); United States v. Raynor, 939 F.2d 191, 196-97 (4th Cir.1991) (same). We reject McNeil's argument that his 1982 conviction should not be used as a predicate offense for the career offender guideline because he was committed as a "youthful offender." An offense committed prior to age 18 counts for criminal history purposes as long as the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month. U.S.S.G. § 4A1.2(d)(1), comment. (n.7). While McNeil was only 17 years old at the time of the 1982 conviction, he was charged as an adult, convicted as an adult, and sentenced to a three-year term of imprisonment. (Sent. Tr. at 78-84.) Hence, the district court correctly counted the 1982 conviction as a predicate offense for determining career offender status. See United States v. Hazelett, 32 F.3d 1313, 1320 (8th Cir.1994) (holding that a conviction at age 17 qualified as a predicate offense for the career offender guideline where the defendant had been tried and convicted as an adult). Furthermore, McNeil's argument that a conviction for conspiracy to distribute cocaine base does not qualify him for sentencing as a career offender pursuant to U.S.S.G. § 4B1.1, made for the first time on appeal, is foreclosed by our en banc decision in United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir.1995) (en banc), cert. denied, --- U.S. ----, 116 S.Ct. 939, 133 L.Ed.2d 864 (1996).

Because the district court correctly determined McNeil to be a career offender, McNeil's objections to the district court's other determinations concerning his role in the offense and the quantity of drugs involved in the conspiracy are moot. Also, his motion for a downward departure based on the alleged discriminatory impact of the enhanced crack cocaine penalties was correctly denied. See, e.g., United States v. Higgs, 72 F.3d 69, 70 (8th Cir.1995); United States v. Maxwell, 25 F.3d 1389, 1396-97 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994). Accordingly, we affirm the district court's judgment on McNeil's appeal.

II.

We next turn to the government's cross-appeal, which asserts that a downward departure was not warranted in this case. We review a district court's decision to depart from the Guidelines for an abuse of discretion. ¹ Koon v. United States, --- U.S. ----, ---- - ----, 116 S.Ct. 2034, 2046-48, 135 L.Ed.2d 361 (1996). The district court's decision to depart will be "determined in large part by comparison with the facts of other Guidelines cases," an assessment for which the district courts have an "institutional advantage." Id. at ----, 116 S.Ct. at 2046-47. The deference owing to a district court's sentencing decision, however, does not render appellate review "an empty exercise," because the amount of "deference that is due depends on the nature of the question presented." Id. Additionally, it is clear that "[a] district court by definition abuses its discretion when it makes an error of law." Id. at ----, 116 S.Ct. at 2047-48.

The abuse of discretion standard articulated in Koon is not inconsistent with our statements on abuse of discretion. We have held that "[a]n abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment." United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir.1987) (citing Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir.1984)). We have also said that under an abuse of discretion standard, the district court's decision will not be disturbed as long as it is within the range of discretion afforded to a given determination and is not influenced by a mistake of law. Kern, 738 F.2d at 970.

In this case, the district court briefly discussed several factors it believed supported a downward departure for an overstated criminal history. In particular, the court looked at McNeil's age at the time he committed the prior predicate felonies, some of the circumstances of their occurrence, and how the state courts had handled the cases. While these are proper factors to consider, after carefully reviewing the record in this case, we are convinced that the district court committed a clear error of judgment in its assessment of many significant aspects of McNeil's criminal history. To be accorded deference in a determination that the Guidelines calculation overstates a defendant's criminal history, the district...