USA vs. McNeil, (5th Cir. 1997)

Docket Number: 96-20833

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* District Judge of the Southern District of Texas, sitting by designation. * * Pursu ant to 5 T H C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. 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 t o distribute cocaine base and aiding and abetting in the possession with intent 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 dist ribute cocaine base in violation of 21 U.S.C. § 846 (§ 2 and 21 U.S.C. § 8 41(b)(1)(A) (§ 924(c)(1) (Â“count threeÂ”). 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.

Subsequent to his motion to withdraw his plea to count three but prior to the hearing on that motion McNeilÂ’s coindictee Robicheaux was acquitted of all counts of the indictment.

At the hearing on McNeil§ 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).

DISCUSSION McNeil argues that the district court erred by enhancing his base off ense 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§ 2D1.1(b)(1) two-level base offense level adjustment § 2D1.1 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 Â“unusual circumstances pre sented,Â” 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 car rying 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 McNeilÂ’s guilty plea for count three and on the other hand enhancin g his base offense level for constructive possessio n 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 wa s connected with the offense. I have allowed the withdrawal of his guilty plea because Mr. McNeil does not admit RobichauxÂ’s [sic] intentional and active involv ement in this crime. However, in each case that the un dercover 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 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 a pplied ( 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§ 2D1.1(b)(1).

McNeil also complain s 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 itÂ’s worth, itÂ’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 s entence within the overlapping area because thatÂ’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 a djustment, the offense level was 34; with McNeilÂ’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.

1 U.S.S.G. § 2D1.1(b)(1) provides, Â“If a dangerous weapon (including a firearm) was possessed, increase [base offense level] by 2 levels.Â”