     Case: 14-30885      Document: 00512949840         Page: 1    Date Filed: 02/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 14-30885
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         February 26, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

DAVID JAMES MCNEIL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CR-271


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant David James McNeil appeals the 72-month
sentence imposed following his guilty plea conviction for possession of
ammunition by a felon. The sentence represented an upward departure or
variance from the applicable guidelines range. On appeal, McNeil complains
that his sentence is substantively unreasonable because the district court
improperly speculated that he possessed the ammunition for nefarious


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30885     Document: 00512949840     Page: 2   Date Filed: 02/26/2015


                                  No. 14-30885

purposes. He maintains that the court either unreasonably disagreed with the
Sentencing Commission on the propriety of the Guidelines for his offense or in
fact punished him for his alleged participation in a theft of firearms, even
though he did not plead guilty to any offenses relating to the theft and the
district court had determined that the theft did not constitute relevant conduct.
      We review sentences for substantive reasonableness, in light of the 18
U.S.C. § 3553(a) factors, under an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 49-51 (2007). The record confirms that the district court
listened to counsel’s arguments and made an individualized assessment based
on McNeil’s personal history and characteristics; the seriousness of the
underlying offense; and the need for the sentence to promote respect for the
law, to provide just punishment, to afford adequate deterrence, and to protect
the public. See id.; § 3553(a)(1), (2). Contrary to McNeil’s speculation, the
district court explicitly refused to consider the theft offense in determining the
appropriate sentence. McNeil has not shown that the decision to sentence him
above the advisory guidelines range failed to take into account “a factor that
should have received significant weight,” gave weight “to an irrelevant or
improper factor,” or represented “a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      As for the increase to 72 months of imprisonment from the 37-month top
of the guidelines range, we have upheld variances and departures greater than
the increase to McNeil’s sentence. See United States v. Brantley, 537 F.3d 347,
348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th
Cir. 2006). McNeil has failed to show that the district court’s justification for
the sentence imposed was insufficiently compelling. See Smith, 440 F.3d at
707. Consequently, the judgment of the district court is AFFIRMED.




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