*District Judge of the Southern District of Texas, sitting by

designation.

 

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this opinion should not be published and is not precedent except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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-20833

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD TIMOTHY MCNEIL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(96-CR-26-1)

_________________________________________________________________

October 8, 1997

Before KING, JONES, Circuit Judges, and WERLEIN, District Judge.*

PER CURIAM:**

Appellant Gerald Timothy McNeil appeals his 220-month

sentence for conspiring to possess with intent to distribute

cocaine base and aiding and abetting in the possession with intent
2

to distribute cocaine base. Finding no reversible error, we

affirm.

FACTUAL BACKGROUND

On February 13, 1996, McNeil and Joseph Wilson Robicheaux

were named in a three count indictment. Both were charged with (1)

conspiring to possess with intent to distribute cocaine base in

violation of 21 U.S.C. § 846 (“count one”), (2) aiding and abetting

in the possession with intent to distribute cocaine base in

violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(b)(1)(A) (“count

two”), and (3) aiding and abetting in using and carrying a firearm

in relation to the drug trafficking offense in violation of 18

U.S.C. § 924(c)(1) (“count three”). These charges stemmed from an

undercover narcotics operation during which McNeil, with Robicheaux

present, engaged in a drug transaction with undercover narcotics

agents. Count three of the indictment stemmed from a firearm that

Robicheaux was carrying at the time of their arrests. 

On March 14, 1996, McNeil entered a guilty plea to all

three counts. The district court accepted the plea. On July 12,

1996, McNeil moved to withdraw the plea with respect to count

three, claiming that Robicheaux was not involved in the narcotics

transaction and, accordingly, McNeil had not anticipated anyone

using or carrying a firearm during the transaction. The district

court set the motion for hearing. 
3

Subsequent to his motion to withdraw his plea to count

three -- but prior to the hearing on that motion -- McNeil’s coindictee Robicheaux was acquitted of all counts of the indictment.

At the hearing on McNeil’s motion to withdraw his plea, and over

the Government’s objection, the district court dismissed count

three, finding that there was no evidence to show that McNeil aided

and abetted either the use or carrying of a firearm as defined by

Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501 (1995). 

At the same hearing, the court sentenced McNeil. Prior

to sentencing, McNeil objected to a two-level base offense

enhancement recommended in the presentence report for possession of

a firearm and requested a three-level adjustment in his offense

level for acceptance of responsibility. The district court

enhanced McNeil’s base offense level by giving him a two-level

increase for possessing a firearm. The court also adjusted his

offense level by two-levels for acceptance of responsibility. The

district court imposed concurrent sentences of 220 months each for

the two counts of conviction along with a special assessment of

$100. 

McNeil timely appealed claiming that the district court

erred (1) by enhancing his base offense level pursuant to U.S.

SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2D1.1 for possession of a

firearm and (2) by not reducing his offense level by one additional

level pursuant to U.S.S.G. § 3E1.1(b)(2).
 

1 U.S.S.G. § 2D1.1(b)(1) provides, “If a dangerous weapon

(including a firearm) was possessed, increase [base offense level]

by 2 levels.” 

4

DISCUSSION

McNeil argues that the district court erred by enhancing

his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1)1 by two

levels. McNeil contends that the firearm was completely unrelated

to the narcotics transaction as evidenced by Robicheaux’s acquittal

-- at the Government’s request -- on all counts of the indictment.

We review a district court’s application of the

sentencing guidelines de novo and its findings of fact for clear

error. See United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.

1992), cert. denied, 508 U.S. 919 (1993). A factual finding is

clearly erroneous if it is not plausible in light of the record

read as a whole. See United States v. Watson, 966 F.2d 161, 162

(5th Cir. 1992). A sentence will be upheld on review unless it was

imposed in violation of law, imposed as a result of an incorrect

application of the sentencing guidelines, or is outside the range

of the applicable sentencing guideline and is unreasonable. See

United States v. Santana-Castellano, 74 F.3d 593, 596 (5th Cir.),

cert. denied, ___ U.S. ___, 116 S.Ct. 1865 (1996). The §

2D1.1(b)(1) two-level base offense level adjustment “should be

applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense.” U.S.S.G. § 2D1.1
5

comment. n.3; United States v. Broussard, 80 F.3d 1025, 1041 (5th

Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 264 (1996). 

At the hearing on sentencing and on the motion to

withdraw his guilty plea to count three, the district court allowed

withdrawal of his plea because of the “unusual circumstances

presented,” 8 R. 10, and because she was of the opinion that a

guilty plea to count three would be factually insufficient. 8. R.

18. After discussing the fact that McNeil had previously

acknowledged in open court that he knew that Robicheaux was in the

habit of carrying a firearm and that it was his intent that

Robicheaux be present at this drug transaction, 8 R. 12-13, in

sentencing McNeil, the court enhanced his base offense level.

Acknowledging the potential confusion that may be caused by, on the

one hand disallowing McNeil’s guilty plea for count three and on

the other hand enhancing his base offense level for constructive

possession of the firearm that Robicheaux possessed, the court

carefully explained: 

I am not convinced that the facts as presented to me

warrant a finding that it is clearly improbable that the

weapon was connected with the offense. I have allowed

the withdrawal of his guilty plea because Mr. McNeil does

not admit Robichaux’s [sic] intentional and active

involvement in this crime. However, in each case that

the undercover agent purchased the drugs there was an

individual present; in this case Mr. Robichaux [sic]

stood near the drugs -- the evidence is, right next to

the drugs. . . .

I am not convinced that the standard articulated in

the comment note 3 [of U.S.S.G. § 2D1.1] is met in this
6

case. I do not find it clearly improbable that the

weapon was connected with the offense.

8 R. 30.

We conclude that these determinations by the district

court are not clearly erroneous and that the court properly applied

§ 2D1.1(b)(1) in this case. After carefully considering the

appropriate standard to be applied (i.e. whether it was clearly

improbable that the weapon was connected with the offense), the

sentencing court made determinations based on the record as a whole

and applied the guideline accordingly. We agree with the district

court that it is not clearly improbable that McNeil chose to have

Robicheaux present -- knowing that Robicheaux would be armed -- to

bolster McNeil’s confidence and ensure that the drug transaction

was completed successfully. We therefore affirm the district

court’s upward adjustment of McNeil’s sentence pursuant to U.S.S.G.

§ 2D1.1(b)(1).

McNeil also complains that the district court erred in

denying him an additional level of a possible three-level reduction

of his base offense level for acceptance of responsibility pursuant

to U.S.S.G. § 3E1.1(b)(2). 

When considering whether to grant McNeil the additional

one-level decrease, the district court stated:

I will tell you, for what it’s worth, it’s not going

to make any difference in the sentence; my sentence would

be the same whether I gave that point or not. The ranges

are substantially overlapping and I intend to sentence
7

within the overlapping area because that’s the figure

that I have found to be appropriate for other reasons.

8 R. 28. The court was referring to the fact that without the

additional one-level adjustment, the offense level was 34; with

McNeil’s criminal history category of IV, the range of sentence was

210 to 262 months. With the requested one-level adjustment, the

offense level would have been 33; a criminal history category of IV

would provide a range of 188 to 235 months. The court sentenced

McNeil to 220 months, a sentence within both ranges. 

Because McNeil was sentenced within both ranges, we find

that any error that may have been committed by the district court

regarding this issue was harmless. We therefore affirm.

CONCLUSION

For the foregoing reasons, the sentence of the district

court is AFFIRMED.