UNITED STATES v. MCNEELEY (2022)

SENTENCING MEMORANDUM

On December 7, 2020, law enforcement responded to an alleged shooting off State Road 212 in Michigan City, Indiana. Pursuant to a search warrant, law enforcement searched an apartment and storage area (garage-like) attached to the business and discovered two firearms and 195 rounds of various ammunition. In the apartment where Jesse McNeeley lived, law enforcement found .357 and .45 caliber cartridges. Other matters pend before the state court, and here he has pleaded guilty to unlawfully possessing ammunition as a felon. See 18 U.S.C. § 922(g)(1).

SENTENCING GUIDELINES

The court must first calculate the guideline sentence correctly, then decide what sentence is right and reasonable for this defendant. Nelson v. United States, 555 U.S. 350, 351 (2009); United States v. Schmidt, 930 F.3d 858, 862 (7th Cir. 2019). The 2021 sentencing guidelines apply (reprinting 2018). See Peugh v. United States, 569 U.S. 530, 531 (2013); U.S.S.G. § 1B1.11.

A. Mr. McNeeley's Objection to References that He Shot the Victim (Paragraphs 9, 11, 20 [Offense Conduct], 48, 50, 51 [Offense Behavior Not Part of Relevant Conduct], and 151 [Variances]).

“[P]rosecutors must prove beyond a reasonable doubt all elements of the crimes charged in the indictment, but once having garnered a conviction, need only prove by a preponderance of the evidence facts alleged at sentencing.” United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991); see United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006). The court may use reliable information. See 18 U.S.C. § 3661; see also United States v. Watts, 519 U.S. 148, 154 (1997) (lower evidentiary standard at sentencing permits sentencing court's consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399-401 (1995) (sentencing courts may consider wide range of information, including information concerning criminal conduct that may be the subject of a subsequent prosecution). To contest facts within the presentence report, the defendant must not only challenge their accuracy but also “produce some evidence that calls the reliability or correctness of the alleged facts into question.” United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004) (quotations and citation omitted).

The defendant admits that an altercation occurred with his ex-girlfriend that turned physical, but he contests that he shot her. The government and defendant have agreed for purposes of this federal sentencing that the alleged shooting should not be considered by the court; and, for reasons rooted in this record, the circumstances of that evening, and the ongoing state court proceeding that will decide guilt or innocence, the court agrees. Accordingly, the court sustains the objection only to the specific references of the shooting in ¶¶ 9 and 151, leaving these paragraphs otherwise intact. The court overrules the objection to ¶¶ 11, 20, 48, 50, and 51 because these paragraphs merely recount what the alleged victim reported to law enforcement or what law enforcement reported, which remain factual as to their reports on this record.

B. Sentencing Guidelines Calculation.

The parties withdrew the remaining objections. That said, the court adopts as its findings ¶¶ 1-154 of the presentence report, save for the specific portions of ¶¶ 9 and 151 to which objections were sustained. Mr. McNeeley starts at level 14 because he was prohibited from possessing ammunition. U.S.S.G. § 2K2.1(a)(6)(A). His clear acceptance of responsibility takes him to level 12. U.S.S.G. § 3E1.1(a).

The sentencing guidelines assess eight criminal history points against him. These eight points place him in criminal history category IV where the sentencing guidelines recommend a sentencing range of 21-27 months, U.S.S.G. chap. 5A, below the statutory maximum of ten years (120 months), 18 U.S.C. §§ 922(g)(1), 924(a)(2).¹

DISCUSSION

The court decides the sentence under 18 U.S.C. § 3553(a) and Booker v. United States, 543 U.S. 220 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).

The circumstances surrounding law enforcement's recovery of the ammunition prove aggravating. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). Mr. McNeeley's actions turned a family dinner into an undoubtedly traumatic event for his two young children and their mother. An argument began in the car. When they arrived at his apartment, the argument continued in a nearby storage area or garage in front of the youngest child (age 2). A physical altercation ensued, with slight injury to him and more serious injuries to her (e.g., trauma to head, scratches, bruising).² Mr. McNeeley fled, taking his 11-year-old son with him, though he was quickly caught. See 18 U.S.C. § 3553(a)(2)(C).

Though more was found that night than .357 and .45 caliber cartridges, namely marijuana and related material in the apartment, of specific aggravating concern today was the presence (in the garage-like storage area) of a Bushmaster AR-15 style rifle with his DNA. See 18 U.S.C. § 3553(a)(2)(A). Laboratory analysis found his DNA on the Bushmaster rifle to be “1 trillion times more likely” than that of an unknown individual—offering more than a probability that he handled or possessed the weapon, though he never owned it. Mr. McNeeley offers speculative reasons why this might be so; but he admits, in a brief moment of candor, he may have handled the weapon in moving it. As an officer of the company, he also had full access to the business. He also says, in almost such a casual way as not to realize the import of his admission, that he had possessed other kinds of ammunition before this night (albeit giving that ammunition to an employee). Needless to say, his actions went well beyond mere unlawful possession of ammunition this one time, and well beyond where he chooses to respect the rule of law even now, or to choose to accept responsibility for the full seriousness of his conduct. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(C).

Mr. McNeeley's criminal history displays a certain belligerence. See 18 U.S.C. § 3553(a)(1). He has fourteen convictions over twenty-two years (from 2001 to 2022). Terms of imprisonment, even of some weight, prove to be only momentary pauses and inconveniences for him, rather than pivotal moments of reflection and reformation. He has been afforded alternative means of correction several times, including treatment, community corrections, and probation. He has responded by failing to appear in court four times and violating probation so many times that “bench warrant” is littered throughout the presentence report. He committed this federal crime while on bond in state court on drug charges. The court sees little today that would suggest that his respect for the law has grown, or that any sentence lower than today's would deter him. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B).

Mr. McNeeley has some family support. He has two sons—but sons who don't need the example of this night. Mr. McNeeley works as the CEO or COO of his father's solar business, earning a good income. See 18 U.S.C. § 3553(a)(1). Renewable energy is an important sector for our country. It is unfortunate that the business may suffer while Mr. McNeeley is in prison, and that he may be away from his children, but that is a consequence of his choice; and today's sentence, given the time he has served to date, makes the risk to the business and absence from his family only modestly longer. See also U.S.S.G. §§ 5H1.5, 5H1.6. It seems the business has continued its work with several employees, but just has been hampered in its desire to grow. That said, to Mr. McNeeley's credit, he has earned his GED and taken some college courses while incarcerated before. Drug use, including methamphetamine and marijuana, plagued his progress before his arrest. See 18 U.S.C. § 3553(a)(1).

But an initial benchmark, see Gall v. United States, 552 U.S. 38, 50 (2007); Rita v. United States, 551 U.S. 338, 351 (2007), a guideline sentence tends to militate against any unwarranted sentencing disparity nationally for similarly situated defendants, see 18 U.S.C. § 3553(a)(6); United States v. Boscarino, 437 F.3d 634, 637 (7th Cir. 2006), particularly for an unlawful possession crime frequently charged in federal court, including in this district. This crime's frequency offers a deep bench for fair assessment.

Mr. McNeeley possessed more than one type of ammunition, and more than just this once based on his own admission. His conduct went beyond just possessing 33 cartridges. He possessed at one time an AR-15 style firearm, and suffice to say his DNA there gives him away in comparison to other offenders who merely possessed ammunition and never a firearm. His disrespect for the law runs deeper than most convicted of this crime, while his recognition of the seriousness of his conduct runs less. The need to promote respect for the law is greater than the mine-run ammunition possession case. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(6). These all move the sentence higher.

And the risk of recidivism remains a material one, see 18 U.S.C. § 3553(a)(2)(A); United States Sent. Comm'n (USSC), Recidivism of Federal Firearms Offenders Released in 2010 6, 39-40 (2021) (69 percent rearrest rate for firearms offenders generally, and near 80 percent for offenders in CHC IV), even at his modest age on release, see Recidivism of Federal Offenders Released in 2010 30 (2021) (63 percent rearrest rate for CHC IV offenders aged 40-49 at release). His history shows little signs of slowing or proving these statistics wrong. See 18 U.S.C. § 3553(a)(1).

Review of all 18 U.S.C. § 3553(a) factors persuades the court that, given the need for the sentence to reflect the seriousness of this offense, to provide just punishment, to promote respect for the law, to deter future such crimes, and to protect the public, and given this defendant's history and characteristics, a sentence of 33 months of imprisonment is appropriate.

The court may impose a supervised release term of not more than 3 years. 18 U.S.C. § 3583(b)(2); see also U.S.S.G. § 5D1.2(a)(2) (recommending 1-3 years). A term of 2 years is appropriate.

Mr. McNeeley cannot pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).

SENTENCE

Accordingly, it is the court's judgment that the defendant, Jesse McNeeley, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 33 months.

Under 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility where he may be located reasonably near his family in Northern Indiana.

Upon release from prison, the defendant will be placed on supervised release for a term of 2 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 155-165 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading of these supervisory conditions.

The court imposes no fine. The defendant must pay to the United States a special assessment of $100.00, which is due immediately.

The court grants the government's motion to dismiss the superseding indictment in Case No. 3:21-CR-55.

SO ORDERED.

FOOTNOTES

1.   Under the Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313 (2022), the increased statutory maximum within 18 U.S.C. § 924(a)(8) for § 922(g)(1) crimes, effective June 25, 2022, doesn't seem to apply to Mr. McNeeley. See U.S. Const. art. 1, § 9, cl. 3; Peugh, 569 U.S. at 538-39 (citing Carmell v. Texas, 529 U.S. 513, 521-25 (2000)); Johnson v. United States, 529 U.S. 694, 699 (2000).

2.   The state court will address the alleged shooting, and the court leaves that issue entirely there without considering it for today's sentence.

Damon R. Leichty, Judge