Case: 23-20351 Document: 58-1 Page: 1 Date Filed: 05/23/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-20351 May 23, 2024
____________
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Albert McNeal,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-514-1
______________________________
Before Higginson, Willett, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Albert McNeal pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
sentenced him to 60 months of incarceration and a three-year term of
supervised release. McNeal challenges that sentence as procedurally
erroneous. We affirm.
I.
McNeal has an extensive criminal history. He has 18 criminal
convictions including seven felonies. Many of those crimes involved violence
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No. 23-20351
and carrying a weapon. His current § 922(g) conviction arose from an alleged
aggravated assault with a deadly weapon and murder related to two separate
shootings.
Prior to sentencing, the Probation Office recommended a four-point
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a weapon in
connection with another felony offense (namely the aggravated assault and
murder). McNeal objected to the enhancement.
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. The court therefore
concluded a variance was necessary to satisfy the 18 U.S.C. § 3553(a) factors.
The court explained:
I’m not going to be sentencing pursuant to the sentencing
guidelines. I certainly recognize that the offense level at this
point is 15, the criminal history category is IV and that would
generally call for a certain sentence.
But that’s simply a beginning point for me as it relates to what
I think this sentence ought to be, particularly, concerning the
individuals—the defendant’s individual conduct and history of
misconduct.
ROA.146–47. Accordingly, it declined to rule on the objection to the
§ 2K2.1(b)(6)(B) enhancement as unnecessary. And the court chose a 60-
month sentence that fell outside of the Guidelines system.
After the court orally pronounced the sentence, McNeal’s counsel
pressed the court to rule on the enhancement objection. In turn, the court
reiterated its position:
I said I didn’t need to rule on it because I had determined and
have determined that an upward departure is appropriate, and
I don’t need to consider it since it would be of insignificance in
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my judgment to rule on it because it would not make a
difference in my sentencing. My sentencing has to do with the
3553(a) factors.
ROA.163. When again pushed by counsel, the court repeated for a third time
its view as to the basis of its sentencing:
It’s a 3553(a) consideration. After looking at the entire record,
it’s my judgment that 60 months confinement on this weapons
case is an appropriate sentence in this matter and that I don’t
need to reach the question of whether or not this four-point
factor is an important factor or not.
ROA.164.
McNeal timely appealed.
II.
McNeal argues that his sentence is procedurally unreasonable because
the district court did not rule on his objection to the § 2K2.1(b)(6)(B)
enhancement. He contends that, under binding Supreme Court precedent,
“a district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” Gall v. United States, 552 U.S.
38, 49 (2007). Because the district court never ruled on the Guidelines
enhancement, McNeal concludes, the district court could not possibly have
calculated the applicable Guidelines range. 1 And without that range as a
starting point, the court’s variance decision was procedurally improper.
As an initial matter, we disagree that the district court did not
calculate the applicable Guideline range. The court noted that even with the
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1
By pretermitting any disputed fact about the use of the gun possessed by McNeal,
the district court avoided deciding, in a federal sentencing hearing, uncharged and
unadjudicated facts relating to state charges of assault and murder then-pending against
McNeal. See Fed. R. Crim. P. 32(i)(3)(B).
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four-level enhancement suggested by the Probation Office, McNeal’s offense
level would be 15 and he would fall in criminal history category IV. All agree
those calculations were correct (again assuming the enhancement applied).
See Blue Br. at 16 (offering the same Guidelines calculation). True, the
district court did not then say: “Using my correctly calculated offense level
and criminal history category, the advisory Guideline range would be 30–37
months.” But the district court did identify the correct box in the Sentencing
Table, which it determined was inadequate. See U.S.S.G. Ch.5, Pt. A
(Sentencing Table). 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.
In any event, the Government has easily shown that any error was
harmless. Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”);
Williams v. United States, 503 U.S. 193, 203 (1992) (“[I]n determining
whether a remand is required under § 3742(f)(1), a court of appeals must
decide whether the district court would have imposed the same sentence had
it not relied upon the invalid factor or factors.”). We have repeatedly
pretermitted consideration of procedural errors on the ground that the
district court made clear its decision to vary from the Guidelines. See, e.g.,
United States v. Hebert,
813 F.3d 551, 561–62 (5th Cir. 2015) (even if the
district court erroneously interpreted a Guidelines cross-reference, its
sentence was “appropriate as an upward variance”); United States v. Urbina,
542 F. App’x 398, 399 (5th Cir. 2013) (per curiam) (unpublished) (“We need
not consider the propriety of [a] sentence as an upward departure . . . because
the sentence may be affirmed on the court’s alternate basis as an upward
variance justified by the
18 U.S.C. § 3553(a) sentencing factors.”); see also
United States v. Redmond,
965 F.3d 416, 420 (5th Cir. 2020) (“A procedural
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error is harmless if the error did not affect the district court’s choice of
sentence.” (citing United States v. Halverson, 897 F.3d 645, 652 (5th Cir.
2018)); United States v. Bonilla,
524 F.3d 647, 656–59 (5th Cir. 2008),
overruled on other grounds by United States v. Reyes-Contreras,
910 F.3d 169,
176–78 (5th Cir. 2018) (en banc). “[T]he crux of the harmless-error inquiry
is whether the district court would have imposed the same sentence”
regardless of any alleged error, and that the record shows a “clarity of intent”
by the district court in doing so. Halverson,
897 F.3d at 652 (citations
omitted); accord Williams,
503 U.S. at 203.
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. As it stated multiple times on the record, the court’s
choice of sentence was founded on its independent consideration of
McNeal’s criminal history and dangerousness under the § 3553(a) factors;
the court also emphasized that a ruling on the objection, in either direction,
had no bearing on its sentencing. United States v. Smith, No. 21-10092, 2021
WL 4515391, at *1 (5th Cir. Oct. 1, 2021) (per curiam) (“[T]here is no
indication that the sentence chosen was based on a calculated Guidelines
range.” (citing United States v. Martinez-Romero,
817 F.3d 917, 925–26 (5th
Cir. 2016) (discussing harmless error in similar circumstances))). When
pressed to rule on the § 2K1.1(b)(6)(B) enhancement, the district court twice
said that issue was irrelevant because it was choosing a sentence outside of
the Guidelines range calculated in the Presentence Report, thus obviating the
parties’ Guidelines dispute. It stated, again, that: “After looking at the entire
record, it’s my judgment that 60 months confinement on this weapons case
is an appropriate sentence in this matter. . . .” ROA.164.
Because sentencing is not an incantation of “magic words,” United
States v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017), any error, if at all, was
harmless. See United States v. Rebulloza,
16 F.4th 480, 484–85 (5th Cir.
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2021); Redmond, 965 F.3d at 420; Halverson,
897 F.3d at 652; Smith,
2021
WL 4515391, at *1.
III.
McNeal makes two final arguments that merit discussion. First, he
contends: “Contrary to the district court’s view, there is no such thing as a
‘§ 3553(a) sentence’ untethered to the Guidelines.” Blue Br. 19. This
contention misses the mark. The entire point of a variance is that the district
court chose to impose a non-Guidelines-range sentence under § 3553(a):
A “departure” is typically a change from the final sentencing
range computed by examining the provisions of the Guidelines
themselves. It is frequently triggered by a prosecution request
to reward cooperation . . . or by other factors that take the case
“outside the heartland” contemplated by the Sentencing
Commission when it drafted the Guidelines for a typical
offense. A “variance,” by contrast, occurs when a judge
imposes a sentence above or below the otherwise properly
calculated final sentencing range based on application of the
other statutory factors in 18 U.S.C. § 3553(a).
United States v. Rangel,
697 F.3d 795, 801 (9th Cir. 2012) (citation omitted);
see also United States v. Jacobs,
635 F.3d 778, 782 (5th Cir. 2011) (per curiam)
(“The district court’s authority to impose a departure emanates from
18
U.S.C. § 3553(b)(1). . . . By contrast, if after completing the Guidelines’
three-step process the district court imposes a sentence that is outside the
[G]uidelines framework, such a sentence is considered a ‘variance.’ The
district court’s authority to impose a variance is discretionary and stems from
18 U.S.C. § 3553(a).” (citations omitted)). 2
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2
On at least one occasion, the district court referred to its sentence as a
“departure.” ROA.163. As noted throughout this opinion, the district court repeatedly
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Second, McNeal contends that we cannot find harmless error where,
as here, the district court failed to calculate the correct Guidelines range. See
Blue Br. 22 (citing United States v. Ibarra-Luna, 628 F.3d 712, 718–19 (5th
Cir. 2010)). But Ibarra-Luna is easily distinguishable. In that case, the district
court expressly relied on the Guidelines. It said: “I need to understand where
he comes out on the Guidelines, and then make my variance.” Ibarra-Luna,
628 F.3d at 719. If the district court says, “I am basing my departure decision
on the Guidelines,” then a miscalculation in the Guidelines range might
affect the defendant’s substantial rights. But this case is very different in two
ways. First, the district court did calculate the correct inputs for the
Guidelines’ Sentencing Table. And second, the court made pellucid that its
sentence was a variance and hence not tethered to the Guidelines. See n.2,
supra.
AFFIRMED.
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emphasized that it chose a sentence independent of the Guidelines and hence imposed a
“variance.”
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