Case: 09-31051 Document: 00511174648 Page: 1 Date Filed: 07/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2010
No. 09-31051
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NATHANIAL MOSLEY,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:99-CR-329-17
Before JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Nathanial Mosley appeals the sentence imposed following the revocation
of his supervised release. He contends that the 30-month sentence, imposed to
run consecutively to the previously imposed state sentence, was plainly
unreasonable because it was three times greater than the top of the 4 to
10-month range recommended by the Sentencing Guidelines, the state court had
ordered 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-31051 Document: 00511174648 Page: 2 Date Filed: 07/15/2010
No. 09-31051
sentence, and his mere constructive possession of the firearm in question should
have been considered a mitigating factor at sentencing.
Because Mosley did not object to the reasonableness of his revocation
sentence in the district court, review is for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error, Mosley
must show a forfeited error that is clear or obvious and that affects his
substantial 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
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
The district court sentenced Mosley to 30 months of imprisonment on
Count 1, to run consecutively to the previously imposed state sentence. The
district court also imposed an additional supervised release term of 30 months.
This sentence, while in excess of the range indicated by the Sentencing
Guidelines’ non-binding policy statements, was within the statutory maximum
term 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
to the previously imposed state sentence was authorized by statute and
preferred 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.
2001). The district court considered the 18 U.S.C. § 3553(a) factors and the
non-binding policy statements and concluded that a consecutive 30-month
sentence was appropriate. Therefore, Mosley’s sentence was neither
unreasonable nor plainly unreasonable, and he has not shown error, plain or
otherwise. See Whitelaw, 580 F.3d at 265.
Accordingly, the district court’s judgment is AFFIRMED.
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