Certiorari granted, January 7, 2011
Affirmed by Supreme Court, June 6, 2011
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4083
CLIFTON TERELLE MCNEILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, District Judge.
(5:08-cr-00002-D-1)
Argued: January 29, 2010
Decided: March 8, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit
Judge, and Jackson L. KISER, Senior United States District
Judge for the Western District of Virginia,
sitting by designation.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Niemeyer and Judge Kiser joined.
COUNSEL
ARGUED: James Edward Todd, Jr., OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
2 UNITED STATES v. MCNEILL
Appellant. Anne Margaret Hayes, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
OPINION
TRAXLER, Chief Judge:
Clifton Terelle McNeill appeals from the sentence imposed
after he was convicted of unlawful possession of a firearm
and unlawful possession with intent to distribute approxi-
mately 3.1 grams of crack cocaine. See 18 U.S.C.A.
§§ 922(g)(1) (West 2000); 21 U.S.C.A. § 841(a)(1) (West
2000). We affirm.
I.
On February 28, 2007, Fayetteville, North Carolina police
officers attempted to effect a routine traffic stop after observ-
ing a car driven by McNeill travel through a red light.
McNeill evaded the police for several miles. He then made an
abrupt stop and fled from his vehicle. An officer tackled
McNeill and found a .38-caliber Smith & Wesson revolver
lying on the ground underneath McNeill’s body. A search of
McNeill revealed 3.1 grams of crack cocaine, packaged for
distribution, along with $369 in U.S. currency.
McNeill was subsequently indicted for unlawful possession
of a firearm (Count One), 18 U.S.C.A. § 922(g)(1), posses-
UNITED STATES v. MCNEILL 3
sion with intent to distribute crack cocaine (Count Two), 21
U.S.C.A. § 841(a)(1), and possession of a firearm during and
in relation to a drug trafficking crime (Count Three), 18
U.S.C.A. § 924(c)(1)(a)(i) (West 2000). McNeill pleaded
guilty to Counts One and Two, and Count Three was dis-
missed at sentencing. The court determined McNeill to be an
armed career criminal and then departed upward from the
United States Sentencing Guidelines to sentence McNeill to
300 months’ imprisonment on Count One and 240 months’
imprisonment on Count Two, the maximum sentence applica-
ble to McNeill under 21 U.S.C.A. § 841(b)(1)(C) (West
2000).
II.
McNeill first argues that the district court erred in sentenc-
ing him as an armed career criminal because only two of the
previous offenses relied on by the district court in applying
the enhancement qualify as predicate offenses under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C.A. § 924(e)
(West 2000). "Whether [a prior] conviction qualifies as a
predicate conviction under section 924(e) is a question of stat-
utory interpretation [that we] review[ ] de novo." United
States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
Because McNeill had been previously convicted of crimes
carrying sentences of more than one year, his possession of a
firearm violated 18 U.S.C.A. § 922(g)(1). The ACCA
imposes a mandatory minimum sentence of 15 years for sec-
tion 922(g) violations if the defendant has three previous con-
victions "for a violent felony or a serious drug offense." 18
U.S.C.A. § 924(e)(1). McNeill contends that he is not eligible
for sentencing under the ACCA because the drug-related con-
victions upon which the district court relied do not qualify as
serious drug offenses under the ACCA.1
1
McNeill does not dispute that he has two other qualifying convictions:
one for assault with a deadly weapon and one for common law robbery.
4 UNITED STATES v. MCNEILL
As is relevant here, the ACCA defines a serious drug
offense as "an offense under State law, involving manufactur-
ing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . for which a maximum
term of imprisonment of ten years or more is prescribed by
law." 18 U.S.C.A. § 924(e)(2)(A)(ii). The probation officer
who prepared McNeill’s presentence report identified
McNeill’s 1992 and 1995 convictions in North Carolina for
selling cocaine and possession with intent to sell cocaine as
predicates for the defendant’s armed career criminal status. At
the time McNeill committed these offenses, the crimes carried
maximum sentences of ten years. See N.C. Gen. Stat. § 15A-
1340.1, et seq. (repealed 1993); N.C. Gen. Stat. § 14-1.1
(repealed 1993). North Carolina subsequently revised its sen-
tencing laws, and under the 1994 Structured Sentencing revi-
sions, the crimes underlying McNeill’s drug convictions now
carry a maximum penalty of 25 months in prison. See N.C.
Gen. Stat. § 15A-1340.17.
The district court held that the maximum sentence for a
predicate conviction under the ACCA is determined as of the
time of the underlying offense. McNeill, however, argues that
the plain language of the statute makes clear that in order to
qualify as a "serious drug offense," the state offense must
carry a maximum penalty of at least ten years in prison at the
time of the defendant’s federal sentencing. As quoted above,
the ACCA defines "serious drug offense" as "an offense under
State law . . . for which a maximum term of imprisonment of
ten years or more is prescribed by law." 18 U.S.C.A.
§ 924(e)(2)(A)(ii) (emphasis added). McNeill reasons that the
statute’s use of the present tense "is" reflects congressional
intent to defer to a state’s current judgment regarding whether
it deems a particular drug offense serious.
In support of his view, McNeill points us to United States
v. Morton, 17 F.3d 911 (6th Cir. 1994), in which the Sixth
Circuit held that principles of lenity required the district court
to determine whether the defendant’s previous convictions
UNITED STATES v. MCNEILL 5
were serious drug offenses at the time of the federal sentenc-
ing. See id. at 915. Because Tennessee did not consider the
defendant’s previous trafficking offenses serious enough to
impose a ten-year sentence at the time of sentencing, the Mor-
ton court vacated the district court’s sentence and remanded
for resentencing. See id.
McNeill also relies on United States v. Darden, 539 F.3d
116, 121 (2d Cir. 2008). In Darden, the Second Circuit found
that the maximum term prescribed by state law for an offense
should be determined according to the law at the time of the
federal sentencing for the simple reason that "the ACCA’s
definition of a ‘serious drug offense’ uses the present tense in
referring to the applicable state law." Id. Additionally, the
Second Circuit looked to the statute’s purpose—"to defer to
the sentencing policy of each state as the measure of the seri-
ousness of the drug offense"—and decided it was "eminently
reasonable for Congress to defer to the state lawmaker’s cur-
rent judgment rather than to the state lawmaker’s discarded
judgment." Id. at 122 (emphasis in original). Moreover, the
Second Circuit determined that the nonretroactivity of the
sentencing reform had no bearing on whether an offense is a
serious drug offense. It stated that "the decision whether to
make a newly recognized legal right retroactive is normally a
remedial decision that should not be confused with an assess-
ment of the temporal scope of the legal right." Id. at 127 (cit-
ing Danforth v. Minnesota, 552 U.S. 264 (2008)) (emphasis
in original). Accordingly, the court found that the "timing of
the offense conduct is not part of the offense of conviction to
which the maximum term is tied for purposes of the ACCA."
Id.
The Fifth Circuit, however, reached a contrary conclusion
in United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003).
The Hinojosa court held that the defendant’s three drug con-
victions that predated the effective date of the revisions to
Texas’s criminal code qualified as "serious drug offenses"
under the ACCA. See id. at 205. The court noted that, unlike
6 UNITED STATES v. MCNEILL
the Tennessee sentencing scheme at issue in Morton, Texas’s
revised scheme "specifically provides that the revised sen-
tences do not apply to crimes committed before the effective
date of the revisions." Id. The court concluded that "even
under Morton, [the defendant’s] previous convictions would
be for ‘serious drug offenses’ because if he were sentenced by
the state . . . today, he would still be subject to a maximum
term of at least ten years." Id.
When North Carolina revised its sentencing scheme in
1994, it specifically provided that the revised sentences would
not apply to crimes committed before the effective date of the
revisions. See N.C. Gen. Stat. § 15A-1340.10; State v.
Branch, 518 S.E.2d 213, 215 (N.C. Ct. App. 1999) (explain-
ing that the defendant’s "offenses that were committed prior
to 1 October 1994, the effective date of the Structured Sen-
tencing Act, fall under the sentencing guidelines of the Fair
Sentencing Act as a matter of law"). In effect, then, North
Carolina has two sentencing schemes – one governing
offenses committed before October 1, 1994, and another gov-
erning offenses committed after October 1, 1994. In this
regard, North Carolina’s revised sentencing scheme is similar
to the Texas sentencing scheme at issue in Hinojosa, and we
find the Fifth Circuit’s reasoning in that case to be persuasive.
Contrary to the interpretation of the Second Circuit in Dar-
den, the date on which McNeill committed his crime is criti-
cal to the determination of his sentence under North Carolina
law. If McNeill were tried and convicted today for his drug
offenses committed in 1991, 1992, and September 1994,2 he
would be subject to the higher sentences imposed by the pre-
October 1994 sentencing statutes. McNeill’s previous felony
drug convictions were punishable by a maximum term of
imprisonment of at least ten years both at the time he commit-
ted the offenses and at the time of his federal sentencing.
2
North Carolina has no statute of limitations for felony offenses. See
State v. Johnson, 167 S.E.2d 274, 279 (N.C. 1969).
UNITED STATES v. MCNEILL 7
Therefore, we conclude that McNeill was properly sentenced
as an armed career criminal.
III.
McNeill also argues that the district court erred in finding
that the criminal history category of VI substantially underre-
presented the seriousness of his criminal history and likeli-
hood of recidivism. He claims that the career offender and
armed career criminal enhancements already encompassed the
recidivism and criminal history factors that guide an upward
departure under U.S.S.G. § 4A1.3.
"[A]n appellate court must defer to the trial court and can
reverse a sentence only if it is unreasonable, even if the sen-
tence would not have been the choice of the appellate court."
United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008)
(emphasis omitted) (citing Gall v. United States, 552 U.S. 38
(2007); Kimbrough v. United States, 552 U.S. 85 (2007); and
Rita v. United States, 551 U.S. 338 (2007)). When reviewing
a departure, we consider "whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range." United States v. Hernandez-Villanueva,
473 F.3d 118, 123 (4th Cir. 2007).
A district court may depart upward based on the inade-
quacy of the defendant’s criminal history if "reliable informa-
tion indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defen-
dant’s criminal history or the likelihood that the defendant
will commit other crimes." U.S.S.G. § 4A1.3(a)(1). Contrary
to McNeill’s argument that an upward departure is contem-
plated only where armed career criminals have a criminal his-
tory category IV or V, it is clear that the guidelines
anticipated that an upward departure might apply in the case
of an armed career criminal and that an upward departure
might occur where a defendant’s criminal history falls within
8 UNITED STATES v. MCNEILL
category VI. See U.S.S.G. § 4B1.4 cmt. background; U.S.S.G.
§ 4A1.3(a)(4)(B).
Here, the court emphasized McNeill’s extensive criminal
past, including convictions for 21 criminal offenses. The court
also pointed out that McNeill had multiple unscored offenses
and that McNeill’s crimes were becoming increasingly more
violent. Furthermore, the court considered that while incarcer-
ated and on parole, McNeill continued to engage in inappro-
priate and illegal conduct, including the possession of an
illegal substance during his current state sentence. The court
determined that the North Carolina criminal justice system
had previously failed to stop McNeill and that an upward
departure was necessary to deter McNeill from future
offenses. Accordingly, the court’s decision to depart was not
procedurally or substantively unreasonable.
In addition, the extent of the departure was reasonable. A
court that elects to upwardly depart under section 4A1.3 must
move horizontally across successive criminal history catego-
ries up to category VI, and, if category VI is inadequate, the
court must then vertically traverse to successively higher
offense levels until it finds a guideline range appropriate to
the case. See U.S.S.G. § 4A1.3(a)(4); United States v. Dalton,
477 F.3d 195, 200 (4th Cir. 2007). The district court consid-
ered offense levels 32 and 33 and found that they did not ade-
quately reflect the seriousness of McNeill’s criminal history
or what the court viewed as the near certain likelihood that
McNeill will commit other crimes, including violent crimes.
Accordingly, the court found offense level 34 yielded the
guideline range most appropriate in this case. Under these cir-
cumstances, we do not find the court abused its discretion in
departing upward.
IV.
Finally, McNeill contends the district court erred by failing
to explain its rejection of the mitigating factors from
UNITED STATES v. MCNEILL 9
McNeill’s childhood and adolescence in the court’s sentenc-
ing determination.
To be sure, a "‘sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own
legal decisionmaking authority’" by articulating how the sen-
tencing factors apply to the case before it. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Rita, 551
U.S. at 356). However, an appellate court "‘should [give] due
deference to the District Court’s reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justif[y] the
sentence.’" Evans, 526 F.3d at 162 (quoting Gall, 552 U.S. at
59-60).
Here, the court thoroughly considered whether a sentence
within the advisory guideline range of 262 to 327 months’
imprisonment would serve the factors set forth in § 3553(a).
The court recognized that McNeill’s latest offenses were very
serious. McNeill was in illegal possession of a firearm in con-
nection with his possession of crack cocaine when he fled
from police officers. Additionally, the court took into account
McNeill’s history and characteristics. The court considered
McNeill’s young age in comparison to his extensive and vio-
lent criminal record. It noted that McNeill’s work history was
almost nonexistent as he spent much of his adult life incarcer-
ated. Also, the court acknowledged McNeill’s lack of positive
role models or familial network, and his family members’
criminal histories. The district court also stated that it had
considered all of the arguments of defense counsel, the defen-
dant’s own statement, the presentence report, and all of the
evidence on the record. Finally, the court concluded that a
substantial period of incarceration was required to deter
McNeill from committing violent and other felonies and pro-
vide public protection from McNeill, but that it would also
provide time for McNeill to receive substance abuse treat-
ment, learn vocational skills, and receive mental health treat-
ment.
10 UNITED STATES v. MCNEILL
The district court thoughtfully and thoroughly applied the
prescribed sentencing factors to the facts of the case and "ade-
quately explain[ed] the chosen sentence." Gall, 552 U.S. at
50. Therefore, we conclude the chosen sentence was reason-
able.
V.
Accordingly, for the foregoing reasons, we hereby affirm
McNeill’s sentence.
AFFIRMED