IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-41592
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN MOSELY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-80-1
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January 27, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Justin Mosely appeals his sentence as a career offender under
the sentencing guidelines. Mosely was charged in a single-count
indictment with possessing a prohibited object (two sharpened metal
rods) while the inmate of a prison, in violation of 18 U.S.C.
§ 1791(a)(2) and (b)(3). Mosely pled guilty to the single charge
of the indictment pursuant to a written plea agreement. The
district court sentenced Mosely to 60 months’ imprisonment, three
years’ supervised release, and a special assessment of $100.
A defendant may appeal a sentence imposed under the sentencing
guidelines if the sentence “(1) was imposed in violation of law;
*
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this opinion should not be published and is not precedent except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.
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or (3) is greater than the sentence
specified in the applicable guideline range. . . .” 18 U.S.C.
§ 3742(a). This court reviews an issue raised on appeal that was
not raised in the lower court for plain error. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1995)(en banc).
In the PSR, the probation officer established Mosely’s base
offense level at 13. Mosely’s offense level was determined to be
17 because he was deemed a “career offender.” See § 4B1.1. This
determination was based, in part, on two 1973 convictions for armed
robbery. One conviction was for federal armed robbery in Kentucky
for which Mosely was sentenced to 25 years. The other was for
armed robbery in Georgia for which Mosely received ten years
imprisonment.
Mosely argues that his sentence based on his being a “career
offender” was in error. He contends that the PSR erroneously
included his 1973 conviction for armed robbery in Georgia in the
calculation of his criminal history category and his offense level
as a career offender. The government agrees with Mosely’s
position. As Mosely did not raise this issue in the district
court, it is reviewed for plain error. Calverley, 37 F.3d at
162-64.
The sentencing guidelines provide that a person is a career
offender if:
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(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction, (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense, and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1. The application notes to § 4B1.2, which defines
the terms of § 4B1.1, indicate that the provisions of § 4A1.2 apply
in determining which convictions count for purposes of the career
offender enhancement. See § 4B1.2, comment. (n.3). Section
4A1.2(e)(1) provides that a felony conviction is only counted if it
was imposed or the defendant was incarcerated during the 15-year
period preceding the date of the instant offense. Mosely committed
the instant offense on December 23, 1997. In order for a
conviction to count under § 4A1.2(e)(1), Mosely would have had to
been imprisoned for the conviction between December 1982 and
December 1997. For the Georgia conviction, Mosely received a ten-
year sentence and was released in June 1980. Thus, he was not
imprisoned for this conviction during the requisite time period.
Accordingly, the district court committed plain error in using the
Georgia conviction to enhance Mosely’s sentence as a career
offender.
A remand to the district court is in order whenever a sentence
has been imposed as a result of an incorrect application of the
Guidelines. Williams v. United States, 503 U.S. 193, 202 (1992).
Remand is appropriate unless the reviewing court concludes that,
based on the record as a whole, the error was harmless. Id. at
3
203. In order to meet this burden, there must be specific,
convincing evidence in the record that the district court had a
particular sentence in mind and would have imposed it
notwithstanding the error made in calculating the guideline range.
United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998). While
there is evidence in the record which indicates that the district
court may have intended to impose the five-year sentence
irrespective of the calculation error, it did not specifically
state that this was its intention. In addition, the government
concurs with Mosely that remand is appropriate in this case.
Accordingly, we order that the sentence imposed on Mosely be
VACATED, and we REMAND this case to the district court for
resentencing.
VACATED and REMANDED.
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