UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-20833
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD TIMOTHY MCNEIL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(96-CR-26-1)
_________________________________________________________________
October 8, 1997
Before KING, JONES, Circuit Judges, and WERLEIN, District Judge.*
PER CURIAM:**
Appellant Gerald Timothy McNeil appeals his 220-month
sentence for conspiring to possess with intent to distribute
cocaine base and aiding and abetting in the possession with intent
*
District Judge of the Southern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to distribute cocaine base. Finding no reversible error, we
affirm.
FACTUAL BACKGROUND
On February 13, 1996, McNeil and Joseph Wilson Robicheaux
were named in a three count indictment. Both were charged with (1)
conspiring to possess with intent to distribute cocaine base in
violation of 21 U.S.C. § 846 (“count one”), (2) aiding and abetting
in the possession with intent to distribute cocaine base in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(b)(1)(A) (“count
two”), and (3) aiding and abetting in using and carrying a firearm
in relation to the drug trafficking offense in violation of 18
U.S.C. § 924(c)(1) (“count three”). These charges stemmed from an
undercover narcotics operation during which McNeil, with Robicheaux
present, engaged in a drug transaction with undercover narcotics
agents. Count three of the indictment stemmed from a firearm that
Robicheaux was carrying at the time of their arrests.
On March 14, 1996, McNeil entered a guilty plea to all
three counts. The district court accepted the plea. On July 12,
1996, McNeil moved to withdraw the plea with respect to count
three, claiming that Robicheaux was not involved in the narcotics
transaction and, accordingly, McNeil had not anticipated anyone
using or carrying a firearm during the transaction. The district
court set the motion for hearing.
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Subsequent to his motion to withdraw his plea to count
three -- but prior to the hearing on that motion -- McNeil’s co-
indictee Robicheaux was acquitted of all counts of the indictment.
At the hearing on McNeil’s motion to withdraw his plea, and over
the Government’s objection, the district court dismissed count
three, finding that there was no evidence to show that McNeil aided
and abetted either the use or carrying of a firearm as defined by
Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501 (1995).
At the same hearing, the court sentenced McNeil. Prior
to sentencing, McNeil objected to a two-level base offense
enhancement recommended in the presentence report for possession of
a firearm and requested a three-level adjustment in his offense
level for acceptance of responsibility. The district court
enhanced McNeil’s base offense level by giving him a two-level
increase for possessing a firearm. The court also adjusted his
offense level by two-levels for acceptance of responsibility. The
district court imposed concurrent sentences of 220 months each for
the two counts of conviction along with a special assessment of
$100.
McNeil timely appealed claiming that the district court
erred (1) by enhancing his base offense level pursuant to U.S.
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2D1.1 for possession of a
firearm and (2) by not reducing his offense level by one additional
level pursuant to U.S.S.G. § 3E1.1(b)(2).
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DISCUSSION
McNeil argues that the district court erred by enhancing
his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1)1 by two
levels. McNeil contends that the firearm was completely unrelated
to the narcotics transaction as evidenced by Robicheaux’s acquittal
-- at the Government’s request -- on all counts of the indictment.
We review a district court’s application of the
sentencing guidelines de novo and its findings of fact for clear
error. See United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.
1992), cert. denied, 508 U.S. 919 (1993). A factual finding is
clearly erroneous if it is not plausible in light of the record
read as a whole. See United States v. Watson, 966 F.2d 161, 162
(5th Cir. 1992). A sentence will be upheld on review unless it was
imposed in violation of law, imposed as a result of an incorrect
application of the sentencing guidelines, or is outside the range
of the applicable sentencing guideline and is unreasonable. See
United States v. Santana-Castellano, 74 F.3d 593, 596 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S.Ct. 1865 (1996). The §
2D1.1(b)(1) two-level base offense level adjustment “should be
applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” U.S.S.G. § 2D1.1
1
U.S.S.G. § 2D1.1(b)(1) provides, “If a dangerous weapon
(including a firearm) was possessed, increase [base offense level]
by 2 levels.”
4
comment. n.3; United States v. Broussard, 80 F.3d 1025, 1041 (5th
Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 264 (1996).
At the hearing on sentencing and on the motion to
withdraw his guilty plea to count three, the district court allowed
withdrawal of his plea because of the “unusual circumstances
presented,” 8 R. 10, and because she was of the opinion that a
guilty plea to count three would be factually insufficient. 8. R.
18. After discussing the fact that McNeil had previously
acknowledged in open court that he knew that Robicheaux was in the
habit of carrying a firearm and that it was his intent that
Robicheaux be present at this drug transaction, 8 R. 12-13, in
sentencing McNeil, the court enhanced his base offense level.
Acknowledging the potential confusion that may be caused by, on the
one hand disallowing McNeil’s guilty plea for count three and on
the other hand enhancing his base offense level for constructive
possession of the firearm that Robicheaux possessed, the court
carefully explained:
I am not convinced that the facts as presented to me
warrant a finding that it is clearly improbable that the
weapon was connected with the offense. I have allowed
the withdrawal of his guilty plea because Mr. McNeil does
not admit Robichaux’s [sic] intentional and active
involvement in this crime. However, in each case that
the undercover agent purchased the drugs there was an
individual present; in this case Mr. Robichaux [sic]
stood near the drugs -- the evidence is, right next to
the drugs. . . .
I am not convinced that the standard articulated in
the comment note 3 [of U.S.S.G. § 2D1.1] is met in this
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case. I do not find it clearly improbable that the
weapon was connected with the offense.
8 R. 30.
We conclude that these determinations by the district
court are not clearly erroneous and that the court properly applied
§ 2D1.1(b)(1) in this case. After carefully considering the
appropriate standard to be applied (i.e. whether it was clearly
improbable that the weapon was connected with the offense), the
sentencing court made determinations based on the record as a whole
and applied the guideline accordingly. We agree with the district
court that it is not clearly improbable that McNeil chose to have
Robicheaux present -- knowing that Robicheaux would be armed -- to
bolster McNeil’s confidence and ensure that the drug transaction
was completed successfully. We therefore affirm the district
court’s upward adjustment of McNeil’s sentence pursuant to U.S.S.G.
§ 2D1.1(b)(1).
McNeil also complains that the district court erred in
denying him an additional level of a possible three-level reduction
of his base offense level for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1(b)(2).
When considering whether to grant McNeil the additional
one-level decrease, the district court stated:
I will tell you, for what it’s worth, it’s not going
to make any difference in the sentence; my sentence would
be the same whether I gave that point or not. The ranges
are substantially overlapping and I intend to sentence
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within the overlapping area because that’s the figure
that I have found to be appropriate for other reasons.
8 R. 28. The court was referring to the fact that without the
additional one-level adjustment, the offense level was 34; with
McNeil’s criminal history category of IV, the range of sentence was
210 to 262 months. With the requested one-level adjustment, the
offense level would have been 33; a criminal history category of IV
would provide a range of 188 to 235 months. The court sentenced
McNeil to 220 months, a sentence within both ranges.
Because McNeil was sentenced within both ranges, we find
that any error that may have been committed by the district court
regarding this issue was harmless. We therefore affirm.
CONCLUSION
For the foregoing reasons, the sentence of the district
court is AFFIRMED.
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