United States v. McNeal

29 F. App'x 377
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 19, 2002
DocketNo. 00-4005
StatusPublished
Cited by2 cases

This text of 29 F. App'x 377 (United States v. McNeal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McNeal, 29 F. App'x 377 (7th Cir. 2002).

Opinion

ORDER

Mary McNeal was convicted at a bench trial of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court declined to grant McNeal a two-level reduction in offense level for acceptance of responsibility, see U.S.S.G. § 3E1.1, because she refused to admit that she intended to distribute the crack found in her possession. McNeal received a sentence of 63 months’ imprisonment. On appeal, McNeal argues that she was entitled to a reduction for acceptance of responsibility because, although she denied intending to distribute the cocaine, she had admitted the element of possession. We affirm.

On Christmas Eve, 1999, Detective Kenneth Berry and Officer Mattalue White of the East St. Louis police department observed Mary McNeal sitting in her car, [379]*379which was parked in a tavern parking lot. The tavern is located in an area known to the East St. Louis police for drug trafficking. The officers observed McNeal hold up a plastic bag to Wendy Thompson, who was standing outside McNeal’s driver’s side window. Suspecting that he was witnessing a drug deal, Detective Berry walked towards McNeal’s car. As Detective Berry approached, he saw McNeal drop a plastic bag containing a white substance onto the floor of her car. Detective Berry ordered McNeal to get out of her car, and when she complied she dropped a second plastic bag onto the ground.

Berry placed McNeal under arrest and found $800 in cash in her purse. Berry called for back-up officers, who arrived and then took McNeal to her house so that she could lock it before being taken to the police station. Special Agent Anthony Mino, a member of the local narcotics task force, met the officers and McNeal at her home and inspected the contents of the plastic bags recovered by the police. He found that the bags contained more than ten grams of crack cocaine, an amount that he considered consistent with intent to distribute. He administered the Miranda warnings to McNeal and asked for her consent to search her home. McNeal signed a Miranda waiver and a consent-to-search form. Agent Mino’s search of her home uncovered a single marijuana cigarette.

Agent Mino reread the Miranda warnings to McNeal after she was taken to the East St. Louis police station. She agreed to talk with him. In a statement that she dictated to Agent Mino and later signed, McNeal said that she had been holding the crack found at the time of her arrest for an individual named Fred Howard, also known as “Bruce.” She also denied that she had been engaged in a drug transaction with Wendy Thompson in the tavern parking lot. The police were never able to locate “Bruce” or verify that he actually existed.

McNeal was charged with possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). At a ehange-of-plea hearing, McNeal testified initially that she wanted to plead guilty. But when Judge Murphy followed up and asked her whether she agreed with the government’s statement of the factual basis of her plea, McNeal answered, “I’ll say yes.” When the judge asked her to clarify her response, she admitted that she had possessed the crack but denied that she had intended to distribute it. Judge Murphy refused to accept McNeal’s guilty plea, and the case proceeded to trial before the bench.

At trial, the parties stipulated that the police had seized two bags from McNeal— one containing 4.4 grams of crack, the other containing 10.3 grams of crack. Detective Berry and Officer White testified that they had observed McNeal hold up one of the bags to Wendy Thompson in the tavern parking lot. Agent Mino testified that a dealer could sell the amount of crack seized from McNeal for a profit of approximately $1000. He also testified to receiving a tip that McNeal was selling drugs and, based on that information, to attempting unsuccessfully on two occasions to buy crack from McNeal at her residence. Further, Agent Mino told the court that he had contacted six informants and at least fifteen police officers in an unsuccessful effort to locate the man whom McNeal had identified as “Bruce.” Agent Mino expressed the opinion that “Bruce” did not exist. The defense rested without calling any witnesses.

After hearing the evidence, Judge Murphy found McNeal guilty:

The defendant is charged with possession of ... crack cocaine with intent to [380]*380distribute. Now, we have, first of all, Officer Ken Berry, who is an experienced detective, who worked here in East St. Louis for some time, who I find to be credible.... Now he says ... that he sees the defendant ... displaying ... a clear package of what we now know to be crack cocaine ... and it’s being shown to some other person, and we know who this person is.... Now, all that’s required is that it’s possessed with the intent to distribute____ Was there any question about what was happening when this was being displayed to ... Wendy Thompson---- Well, of course not. It’s being displayed to Wendy Thompson for the purpose of distributing. There’s no other reasonable, rational explanation.

During her presentence interview, McNeal again admitted to possessing the crack but denied that she intended to distribute it. As a result, the probation office recommended against granting her a reduction in offense level for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. McNeal objected to the offense level recommended in the PSR, arguing that she should receive a two-level reduction because she admitted to the element of possession even though she refused to admit the element of intent to distribute. Judge Murphy overruled McNeal’s objections to the PSR, saying that he never heard a clear, unequivocal admission of guilt from McNeal, and imposed a sentence of 63 months’ imprisonment. Judge Murphy sentenced McNeal at the low end of the applicable guideline range (63 to 78 months); McNeal received a sentence only three months longer than the statutory minimum for her offense. See 18 U.S.C. § 841(b)(1).

On appeal, McNeal first claims that the district court abused its discretion by basing its denial of an aceeptance-of-responsibility reduction under § 3E1.1 on the fact that she elected to go to trial. McNeal argues that the court failed to realize that the Sentencing Guidelines do not preclude a defendant convicted at trial from receiving an acceptanee-of-responsibility reduction.

We review a district court’s determination of a defendant’s acceptance of responsibility under § 3E1.1 for clear error. United States v. Utecht, 238 F.3d 882, 888 (7th Cir.2001). A defendant is not entitled as a matter of right to an acceptance-of-responsibility reduction. U.S.S.G. § 3E1.1, comment, (n.3); United States v. Booker, 248 F.3d 683, 690 (7th Cir.2001). It is the defendant’s burden to prove that the reduction applies in her case. Booker, 248 F.3d at 690.

McNeal correctly notes that a defendant who exercises her constitutional right to a trial does not automatically forfeit a reduction in offense level for acceptance of responsibility. See U.S.S.G.

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Bluebook (online)
29 F. App'x 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcneal-ca7-2002.