UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4175
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE DEMONTIO MCNEIL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00037-F-1)
Submitted: September 27, 2011 Decided: October 6, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Demontio McNeil pleaded guilty to possession of
cocaine base, in violation of 21 U.S.C. § 841(a) (2006). The
district court sentenced McNeil to 120 months of imprisonment,
based on the statutory mandatory minimum sentence applicable to
a defendant who has sustained a prior felony drug offense. See
21 U.S.C. § 841(b)(1)(B) (2006), current version at 21 U.S.C.A.
§ 841(b)(1)(B) (West Supp. 2011). McNeil timely appealed, and
argues that his prior North Carolina conviction did not qualify
as a predicate felony offense to increase the statutory
penalties. For the reasons that follow, we affirm McNeil’s
conviction, but vacate the sentence and remand for resentencing.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51.
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Under 21 U.S.C. § 841(b)(1)(B) (2006), a defendant is
subject to a statutory mandatory minimum term of imprisonment of
five years unless he has sustained a prior conviction for a
felony drug offense, in which case the statutory mandatory
minimum becomes ten years of imprisonment. A felony drug
offense is defined as an “offense punishable by imprisonment for
more than one year under any law . . . of a State.” 21 U.S.C.
§ 802(44) (2006).
Here, McNeil’s prior conviction was for possession of
marijuana, a Class I felony under North Carolina law. Moreover,
at the time of his conviction, McNeil’s prior record level was
I, and the sentencing court found that he should be sentenced
within the presumptive range of the applicable sentencing table
under N.C. Gen. Stat. § 15A-1340.17(c) (2007). Under North
Carolina law, McNeil faced a maximum term of imprisonment of
eight months. See N.C. Gen. Stat. § 15A-1340.17(d) (2007).
Therefore, McNeil could not have received a term of imprisonment
exceeding twelve months for this prior conviction.
In United States v. Simmons, 2011 WL 3607266 (Aug. 17,
2011) (en banc), we determined that an offense is not punishable
by a term exceeding one year of imprisonment if the defendant
could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
history and other factors. As McNeil could not have received a
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term exceeding one year of imprisonment for his prior offense,
he did not have a qualifying predicate offense to increase the
statutory penalties under § 841(b)(1)(B). Because the advisory
Guidelines range was determined based on the statutory mandatory
minimum of 120 months, see U.S. Sentencing Guidelines Manual
§ 5G1.1 (2010), McNeil was sentenced based on an incorrect
Guidelines calculation and an inapplicable statutory mandatory
minimum. Thus the sentence is procedurally unreasonable.
Accordingly, we affirm McNeil’s conviction, but vacate
the sentence and remand for resentencing. 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 IN PART,
VACATED IN PART,
AND REMANDED
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