United States v. McNeal

In United States v. McNeal, —- F.4th —-, No. 23-20351 (5th Cir. May 23, 2024), the Fifth Circuit affirmed the defendant’s 60-month sentence after finding no procedural error, despite McNeal’s argument that the district court had failed to rule on his PSR objection.

Background: Before sentencing, McNeal had objected to the PSR’s inclusion of a four-point enhancement under USSG § 2K2.1(b)(6)(B), which applies when the defendant used a weapon in connection with another felony offense. At sentencing, the district court “decided that the Guidelines, with or without the § 2K2.1(b)(6)(B) enhancement, did not accurately reflect McNeal’s criminal history and the nature of his offense.”

As the district court put it, “I’m not going to be sentencing pursuant to the sentencing guidelines. I certainly recognize that the offense level at this point is 15, [and] the criminal history category is IV. … But that’s simply a beginning point for me as it relates to what I think this sentence ought to be.” Then the court imposed an above-Guidelines 60-month sentence.

In response to a renewed objection, the court said it “didn’t need to rule on” McNeal’s objection because “an upward departure is appropriate, and I don’t need to consider it since it would be of insignificance in my judgment to rule on it because it would not make a difference in my sentencing.”

Issue: Did the district court commit procedural error by failing to rule on McNeal’s objection? No.

First, the Fifth Circuit did not agree that the district court had failed to calculate the Guideline range. It had noted the offense level that would apply with the contested enhancement, and it “did identify the correct box in the Sentencing Table, which it determined was inadequate.” “Requiring the district court to go one more step and to recite the numbers in that correct box, as if saying the magic words for a Potteresque incantation, would turn sentencing into a hypertechnical exercise of empty formalism.”

Second, regardless, the Government “easily” showed that any error was harmless. “It is hard to imagine what more the district court could have said to make clear that McNeal received a 60-month sentence regardless of the § 2K1.1(b)(6)(B) issue.”