United States v. Timothy McNeal

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 3, 2019
• Docket: 18-4405
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4405

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY ALLEN MCNEAL,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:16-cr-00606-CCB-2)

Submitted: March 18, 2019 Decided: April 3, 2019

Before NIEMEYER and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mirriam Z. Seddiq, MIRRIAM Z. SEDDIQ, LLC, Upper Marlboro, Maryland, for Appellant. Robert K. Hur, United States Attorney, Burden H. Walker, Assistant United States Attorney, Lauren E. Perry, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Timothy Allen McNeal appeals his convictions and 228-month sentence for

conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (2012);

armed bank robbery and forced accompaniment, in violation in 18 U.S.C. § 2113(a), (d),

(e), (g) (2012); brandishing a firearm in the commission of a crime of violence (armed

bank robbery), in violation of 18 U.S.C. § 924(c) (2012); and being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012). McNeal asserts that the district

court improperly denied his second motion for a trial continuance, improperly admitted

expert testimony regarding historical cell site location evidence, and unreasonably failed

to consider his mitigation arguments in sentencing. We affirm.

“We review the denial of a motion for a continuance for abuse of discretion.”

United States v. Copeland, 707 F.3d 522, 531 (4th Cir. 2013). “[B]road discretion must

be granted trial courts on matters of continuances; only an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay violates the

right to assistance of counsel.” United States v. Williams, 445 F.3d 724, 738-39 (4th

Cir. 2006) (citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983)). Even where this broad

discretion has been abused, “the defendant must show that the error specifically

prejudiced his case in order to prevail” on appeal. Copeland, 707 F.3d at 531 (brackets

and internal quotation marks omitted).

The district court’s denial of McNeal’s second motion for a continuance was

hardly “unreasoning and arbitrary,” Williams, 445 F.3d at 739. McNeal requested the

additional continuance to contact an expert who could address DNA evidence that the

2 government had proffered. The court noted that the DNA evidence was timely disclosed,

that the DNA evidence was not conclusive, and that postponement would inconvenience

multiple witnesses. Furthermore, McNeal has not established that he was specifically

prejudiced by the denial of the motion. Regardless of his inability to secure expert

testimony, McNeal was able to extensively challenge the DNA evidence in question at

trial, and that evidence was only one component of the overwhelming proof of guilt

presented. Accordingly, we conclude that the district court did not abuse its discretion in

denying the motion for a continuance.

“We review the district court’s decision to admit expert testimony for abuse of

discretion.” United States v. Landersman, 886 F.3d 393, 411 (4th Cir. 2018). The

district court’s determination based on Federal Rule of Evidence 702 is guided by the

factors articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

590-92 (1993). The Daubert analysis “merely requires that the expert testimony be both

relevant and reliable,” and “clearly vests the district courts with discretion to determine

[its] admissibility.” Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995);

see Landersman, 886 F.3d at 412.

On appeal, McNeal argues that the cell site location evidence was improperly

admitted on the basis of federal legal precedent rather than acceptance by the scientific

community. But scientific acceptance is only one component of the Daubert analysis,

and historical cell site analysis has been broadly tested and accepted by the scientific

community and the federal courts alike. See United States v. Hill, 818 F.3d 289, 297-98

(7th Cir. 2016). In this case, the Government carefully limited the weight and certainty

3 of the evidence, and the district court did not abuse its discretion in concluding that the

cell site location evidence satisfied Daubert’s touchstones of relevance and reliability.

Finally, we “review a sentence for reasonableness ‘under a deferential

abuse-of-discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th

Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The district court

correctly calculated the advisory Sentencing Guidelines range and gave both parties

ample opportunity to argue for their desired sentence. See Gall, 552 U.S. at 49-51.

Although the district court did not explicitly address some of the mitigating

characteristics that McNeal raised in requesting a sentence at the low end of the advisory

Guidelines range, see United States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015), we

conclude that any procedural error was harmless, see United States v. Boulware,

604 F.3d 832, 838 (4th Cir. 2010) (defining harmless error); United States v. Lynn,

592 F.3d 572, 576 (4th Cir. 2010) (stating that court “need not robotically tick through

§ 3553(a)’s every subsection, particularly when imposing a within-Guidelines sentence”

(internal citations and quotation marks omitted)). Finally, the sentence is entitled to a

presumption of reasonableness, and we conclude that McNeal has not rebutted that

presumption. United States v. Vinson, 852 F.3d 333, 357-58 (4th Cir. 2017).

Accordingly, we affirm the district court’s judgment. We deny McNeal’s motion

for oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED