Case: 13-11155 Document: 00512747997 Page: 1 Date Filed: 08/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11155
FILED
August 27, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JARED STANLEY SWEET,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-252-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
The defendant in this case, Jared Stanley Sweet, pled guilty to
possession of stolen mail in violation of 18 U.S.C. § 1708 and received a 15-
month sentence. The district court imposed this sentence after calculating
Sweet’s sentencing guideline range based in part on a 6-level increase under
U.S.S.G. § 2B1.1. Sweet argues that the 6-level increase resulted from the
district court’s misapplication of the presumption regarding the number of
victims affected by Sweet’s possession of stolen mail. Because Sweet did not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11155 Document: 00512747997 Page: 2 Date Filed: 08/27/2014
No. 13-11155
object to the sentence imposed or to the district court’s calculation of the
guideline range, we review for plain error. 1 Plain error does not arise unless
the sentencing error affects the defendant’s substantial rights. 2
Citing our analysis in United States v. Moore, 733 F.3d 161, 164-67 (5th
Cir. 2013), Sweet argues that he should have received a 4-level increase
instead of a 6-level increase. The government responds that even if Sweet is
correct, the sentence actually imposed would nonetheless have fallen within
the correctly calculated guideline range. In other words, whereas Sweet’s 15-
month sentence falls at the bottom of the 15-to-21-month range calculated
based on the 6-level increase actually applied by the district court, Sweet’s
sentence would have fallen in the middle of a 12-to-18-month range calculated
based on the 4-level increase proposed by Sweet. Sweet, who is represented by
counsel, offers no rebuttal and does not dispute the government’s alternative
calculation. Whether or not the government’s alternative calculation is correct,
therefore, Sweet has waived his opportunity to challenge it. 3
Accordingly, Sweet’s appeal is governed by the rule described in United
States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011). In that case, we
explained that “when the correct and incorrect ranges overlap and the
defendant is sentenced within the overlap, ‘we do not assume, in the absence
of additional evidence, that the sentence affects a defendant’s substantial
rights.’” 4 Sweet has neither identified any such evidence nor addressed the
issue in his brief. The district court must therefore be AFFIRMED.
AFFIRMED.
1 See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
2 Id. at 392.
3 See Morris v. Livingston, 739 F.3d 740, 752 (5th Cir. 2014) (citing Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993)).
4 Mudekunye, 646 F.3d at 290 (quoting United States v. Blocker, 612 F.3d 413, 416
(5th Cir. 2010))(italics omitted).
2