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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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