United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2006
Charles R. Fulbruge III
Clerk
No. 06-30264
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME MCNEIL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-317-ALL
--------------------
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Jerome McNeil appeals the sentence imposed following his
jury conviction for conspiracy to possess and possession of
counterfeit access devices in violation of 18 U.S.C. §§ 2,
1029(a)(1) and (b)(2). He contends that the district court
plainly erred when it relied on his prior arrests to impose a
sentence above the advisory guideline range. Because McNeil did
not object to the departure in the district court, this court
reviews for plain error. See United States v. Jones, 444 F.3d
430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).
*
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this opinion should not be published and is not precedent except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.
No. 06-30264
-2-
It is not acceptable to consider the mere fact of prior
arrests in determining that the criminal history category
underrepresents the seriousness of criminal activities and the
likelihood that further crimes will be committed. See id. at
434, 436. However, McNeil’s prior arrests were not the sole
determining factor in the district court’s decision to depart
from the advisory guideline range. Specifically, the district
court found that the loss amount set forth in the presentence
report seriously underrepresented the total amount of loss or
fraud attributable to McNeil. Further, the district court
expressly stated that it intended to sentence McNeil to the same
term of imprisonment as his co-conspirator.
Finally, the district court could have imposed the same
sentence on remand because the 48-month sentence was not
unreasonable. See Jones, 444 F.3d at 441. The sentence did not
exceed the 60- and 120-month statutory maximums and exceeded the
30- to 37-month advisory guideline range by only 11 months. See
§ 1029(a)(1), (b)(2), (c)(1)(A)(i). Further, the district
court’s reasons for imposing the sentence reflect that it
considered the 18 U.S.C. § 3553(a) factors, including the nature
and seriousness of the offense, the need for punishment,
deterrence, and protection from future crimes, and the need to
avoid sentencing disparities. Accordingly, McNeil has failed to
establish plain error, and the district court’s judgment is
AFFIRMED.