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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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