United States v. McNeil

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
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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this opinion should not be published and is not precedent except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.