USA v. Nathanial Mosley

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USA v. Nathanial Mosley

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Case: 09-31051

Document: 00511174648

Page: 1

Date Filed: 07/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31051 S u m m a r y Calendar July 15, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. N A T H A N I A L MOSLEY, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:99-CR-329-17

B e fo r e JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges. P E R CURIAM:* N a t h a n ia l Mosley appeals the sentence imposed following the revocation o f his supervised release. He contends that the 30-month sentence, imposed to r u n consecutively to the previously imposed state sentence, was plainly u n r e a s o n a b le because it was three times greater than the top of the 4 to 1 0 -m o n th range recommended by the Sentencing Guidelines, the state court had o r d e r e d that the state sentence run concurrently with the anticipated federal

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-31051

Document: 00511174648 Page: 2 No. 09-31051

Date Filed: 07/15/2010

s e n te n c e , and his mere constructive possession of the firearm in question should h a v e been considered a mitigating factor at sentencing. Because Mosley did not object to the reasonableness of his revocation s e n te n c e in the district court, review is for plain error. See United States v. W h ite la w , 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Mosley m u s t show a forfeited error that is clear or obvious and that affects his s u b s t a n t ia l rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the discretion to correct the error but o n ly if it seriously affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . See id. The district court sentenced Mosley to 30 months of imprisonment on C o u n t 1, to run consecutively to the previously imposed state sentence. The d is t r ic t court also imposed an additional supervised release term of 30 months. This sentence, while in excess of the range indicated by the Sentencing G u id e lin e s ' non-binding policy statements, was within the statutory maximum t e r m of imprisonment that the district court could have imposed. See 18 U.S.C. § § 3559(a)(1), 3583(e)(3); 21 U.S.C. §§ 841(b)(1)(A)(iii), 846; U.S.S.G. § 7B1.4(a). Further, the district court's decision to run the revocation sentence consecutively t o the previously imposed state sentence was authorized by statute and p r e fe r r e d under the Sentencing Guidelines. See 18 U.S.C. § 3584(a); § 7B1.3(f) & comment. (n.4); United States v. Gonzalez, 250 F.3d 923, 927-28 (5th Cir. 2 0 0 1 ) . The district court considered the 18 U.S.C. § 3553(a) factors and the n o n -b in d in g policy statements and concluded that a consecutive 30-month s e n te n c e was appropriate. Therefore, Mosley's sentence was neither

u n r e a s o n a b le nor plainly unreasonable, and he has not shown error, plain or o t h e r w is e . See Whitelaw, 580 F.3d at 265. A c c o r d in g ly , the district court's judgment is AFFIRMED.

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