                                                                 [DO NOT PUBLISH]



                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT  OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                      APRIL 9, 2012
                                       No. 10-13500
                                   Non-Argument Calendar               JOHN LEY
                                                                        CLERK
                                 ________________________

                             D.C. Docket No. 3:10-cr-00003-LC-1



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

JOSEPH RHASHAWN MCNEIL,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Northern District of Florida
                                ________________________

                                        (April 9, 2012)

Before BARKETT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
      Joseph McNeil appeals his statutory maximum sentence of 120 months’

imprisonment, imposed after being found guilty by a jury of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). McNeil’s first trial,

in which he testified, ended with a deadlocked jury and a mistrial. The jury at the

second trial, in which McNeil did not testify, found McNeil guilty. During

sentencing, the district court explicitly stated that the 120-month sentence was not

enough, but that it was bound by the statutory maximum. For the first time on

appeal, McNeil argues (1) that the district court erred in applying a two-level

adjustment for obstruction of justice and (2) that the district court erred in

determining that a Florida battery conviction was a “crime of violence.”

      Typically, we review questions of law regarding the district court’s

application of the Sentencing Guidelines de novo. United States v. Aguilar-Ortiz,

450 F.3d 1271, 1272 (11th Cir. 2006). However, when a defendant makes an

objection for the first time on appeal, we review the district court’s sentence for

plain error. United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009). The

defendant has “the burden of establishing that (1) there is an error; (2) that is plain

or obvious; (3) affecting [his] substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” Id. (quotation omitted) (alteration in original).

                                           2
                                               I.

       The district court applied a two-level enhancement to McNeil’s sentence for

obstruction of justice under U.S.S.G. § 3C1.1 based on a purported jury finding

that the government’s testimony was more credible than McNeil’s testimony.

Although in the first trial his testimony conflicted with that of the government’s,

McNeil asserts that the district court was bound by the events of the second trial

only, and was not permitted to consider his testimony from the first trial in making

the obstruction of justice finding.

       The government relies on United States v. Pantle, 637 F.3d 1172, 1177-78

(11th Cir. 2011), cert. denied, 132 S.Ct. 1091 (2011) for the proposition that,

because the district judge stated on the record that he did not believe the 120-

month statutory maximum was high enough, any error in calculating the

defendant’s sentence was harmless.1 In addressing Pantle’s appeal, we held that

       1
          In Pantle the defendant had been convicted of being a felon in possession of a firearm
and had been sentenced to 120 months’ imprisonment. Id. at 1174. For sentencing purposes, the
defendant’s total offense level was 30, based in part on a Florida battery conviction and an
Alabama attempted assault conviction. Id. His criminal history category was VI, based on 23
criminal-history points, for a total guideline range of 168 to 210 months, which was reduced to
the statutory maximum of 120 months. Id. at 1174, 1178. At sentencing, the district court found
that 120 months was not enough, and specifically stated:

       And while I’m not willing to find that this sentence is reasonable, it is the
       maximum permitted, and therefore, I do think that it will serve the sentencing
       purpose and meet the general goals of punishment and hopefully deter anyone else
       from similar criminal conduct.


                                               3
we did not need to decide whether Pantle was correct about the convictions not

being crimes of violence because he nevertheless failed to show a “reasonable

probability” that the district court would have imposed a lower sentence. Id. We

noted that, if Pantle was correct, his guideline range would have been 70 to 87

months, but that he still could have received the 120-month sentence because the

court could have varied upward. Id. at 1178.

       Here, as in Pantle, the district court indicated a desire to sentence the

defendant to a sentence above the 120-month statutory maximum, stating that

“[t]his sentence should be much higher than 120 months, but, unfortunately, I’m

not in a position to impose it.” Because the record fails to establishes that the

district court would have sentenced McNeil to a lower sentence, McNeil has failed

to show plain error. Accordingly, we affirm as to this issue.

                                                 II.

       McNeil argues for the first time on appeal that the district court should not

have considered his Florida battery conviction as a “crime of violence,” such as to

raise his base offense level under U.S.S.G. § 2K2.1(a)(2). As with the first issue,

it is McNeil’s burden to demonstrate that the error affected the outcome of the


Id. at 1174. For the first time on appeal, Pantle alleged that the district court erred in determining
that the Florida and Alabama convictions were crimes of violence, such as to raise his based
offense level. Id.

                                                  4
proceedings. Pantle, 637 F.3d at 1177. As with the first issue, the plain-error

standard applies because McNeil did not object to the district court’s consideration

of his Florida battery conviction. Furthermore, because McNeil is unable to

demonstrate that there is a reasonable probability that he would have received a

lower sentence, he has failed to establish plain error.

      AFFIRMED.




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