UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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