United States v. McNeill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4889

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDDIE LAVON MCNEILL,

Defendant - Appellant.

No. 04-4898

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDDIE LAVON MCNEILL,

Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-126; CR-04-185)

Submitted: September 25, 2006 Decided: October 18, 2006

Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:

Eddie Lavon McNeill pleaded guilty to one count of bank

robbery, in violation of 18 U.S.C. § 2113(a) (2000). At the time

he committed this offense, McNeill was on federal supervised

release for an earlier bank robbery conviction in South Carolina.

After McNeill’s guilty plea to the latest robbery, the Probation

Officer filed a petition alleging McNeill violated the terms of his

supervised release. The district court sentenced McNeill to 176

months of imprisonment for the bank robbery. The court also

revoked McNeill’s supervised release and sentenced him to twenty-

four months of imprisonment to run consecutive to his sentence for

bank robbery. McNeill timely appealed, and we affirm.

McNeill’s counsel first suggests that the sentence

imposed by the district court after revoking McNeill’s supervised

release was unduly harsh. McNeill does not assert any error in the

district court’s decision to revoke his supervised release or in

the court’s application of the advisory provisions of the

Sentencing Guidelines.* This court recently held that “revocation

sentences should be reviewed to determine whether they are ‘plainly

unreasonable’ with regard to those § 3553(a) factors applicable to

supervised release revocation sentences.” United States v. Crudup,

461 F.3d 433, 437 (4th Cir. 2006). Our review of the record

*
U.S. Sentencing Guidelines Manual Ch. 7 (2004).

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convinces us that McNeill’s sentence upon revocation of supervised

release is not unreasonable, much less plainly unreasonable.

McNeill also challenges the constitutionality of his bank

robbery sentence under United States v. Booker, 543 U.S. 220

(2005). Specifically, McNeill argues that the district court’s

treatment of the Sentencing Guidelines as mandatory and its failure

to consider the sentencing factors in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006) require resentencing. McNeill specifically

disclaims any Sixth Amendment error in the determination of his

sentence.

In their briefs, the parties assert that, because McNeill

did not raise this issue at sentencing, his Booker arguments are

reviewed for plain error. After the briefs were submitted,

however, this court held that a Blakely objection at sentencing is

sufficient to preserve a claim of error under Booker. United

States v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006).

Accordingly, we review McNeill’s claims of sentencing error under

the harmless error standard. Id. at 415. Under this standard, the

Government bears the burden of showing that an error did not affect

the defendant’s substantial rights. Id. at 416. This court has

recognized that the application of the Guidelines as a mandatory

determinant in sentencing is error. United States v. White, 405

F.3d 208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

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 Our review of the record leads us to conclude that the

district court’s error in applying the Guidelines in a mandatory

manner is harmless. Although the district court acknowledged the

uncertain state of sentencing law at the time of McNeill’s

sentencing, other remarks by the court indicate that it would not

have imposed a lesser sentence under an advisory scheme, or if it

had explicitly considered the § 3553(a) factors. Further, the

district court sentenced McNeill to 176 months’ imprisonment, well

above the low end of the guideline range. This high-end sentence

and the district court’s comments reveal that the district court

imposed a sentence it concluded was appropriate under the facts,

and that a remand would be futile.

We therefore affirm McNeill’s sentences. 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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