United States v. Mayo

Case: 20-30553      Document: 00515905463         Page: 1      Date Filed: 06/18/2021




              United States Court of Appeals
                   for the Fifth Circuit                                United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                  No. 20-30553                             June 18, 2021
                                Summary Calendar                          Lyle W. Cayce
                                                                               Clerk

   United States of America,

                                                               Plaintiff—Appellee,

                                       versus

   James Albert Mayo, III,

                                                          Defendant—Appellant.


                  Appeal from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 5:16-CR-6-1


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          James Albert Mayo, III, was convicted of possession of ammunition
   by a felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to serve
   51 months in prison and a three-year term of supervised release. Now, he
   raises challenges to his sentence and the jury’s verdict.


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30553      Document: 00515905463          Page: 2    Date Filed: 06/18/2021




                                    No. 20-30553


          First, Mayo contends that the district court erred by imposing a
   U.S.S.G. § 2K2.1(b)(4)(A) adjustment because the jury did not find that he
   possessed a firearm, nor did the evidence suffice to show that he possessed
   it. “[A] jury’s verdict of acquittal does not prevent the sentencing court from
   considering conduct underlying the acquitted charge, so long as that conduct
   has been proved by a preponderance of the evidence.” United States v. Watts,
   519 U.S. 148, 156 (1997); see also United States v. Valdez, 453 F.3d 252, 264
   (5th Cir. 2006). Additionally, review of the record supports the district
   court’s conclusion that a preponderance of the evidence shows that Mayo
   possessed the disputed stolen firearm. See Watts, 519 U.S. at 156; United
   States v. Houston, 364 F.3d 243, 248 (5th Cir. 2004).
          Next, Mayo argues that the verdict cannot stand because the
   indictment charged that he possessed both a firearm and ammunition and the
   jury found only that he possessed ammunition. This argument is unavailing
   because offenses may be charged conjunctively and proven disjunctively. See
   United States v. Dickey, 102 F.3d 157, 164 n.8 (5th Cir. 1996).
          AFFIRMED.




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