United States v. McNeil , 210 F. App'x 454 ( 2006 )


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    this opinion should not be published and is not precedent except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

Document Info

Docket Number: 06-30264

Citation Numbers: 210 F. App'x 454

Judges: Dennis, Per Curiam, Reavley, Wiener

Filed Date: 12/21/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023