                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          June 21, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-1232
                                                 (D.C. No. 1:16-CR-00386-PAB-1)
BRIAN KEITH PATE MOSLEY,                                     (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
                 _________________________________

      For the third time in seven years, the district court convicted Brian Mosley of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The

district court sentenced Mosley to a 60-month prison term—almost double the

sentence that the U.S. Sentencing Guidelines prescribed. Mosley appeals the

substantive reasonableness of his sentence. We affirm.




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th
Cir. R. 32.1.
                                    Background

      One afternoon in late 2016, someone shot at Mosley as he left a store in

Denver’s Five Points neighborhood. Mosley brandished a handgun, fled the area, and

abandoned the gun in a nearby yard. Police found Mosley’s gun and discovered his

DNA on it. A federal grand jury subsequently indicted Mosley for being a felon in

possession of a firearm in violation of § 922(g)(1). Mosley pleaded guilty.

      In Mosley’s presentence report (PSR), the U.S. Probation Department assigned

an offense level of 12 and a criminal history category of V under the Guidelines,

yielding a sentencing range of 27 to 33 months in prison. See U.S.S.G. § 5A. Neither

Mosley nor the government objected to the PSR. But the government asked the

district court to depart from the Guidelines and sentence Mosley to 100 months in

prison. It argued that an upward departure from the Guidelines’ sentencing range was

necessary because Mosley had been undeterred by his prior two within-Guidelines

sentences for § 922(g)(1) violations and therefore would likely continue to violate

§ 922(g)(1). Mosley objected.

      The government’s case for an upward departure focused on Mosley’s

relationship with Five Points. Mosley grew up in Five Points and joined a gang in the

neighborhood when he was 12 years old. Since then, he has been a target of violence

in the area. Indeed, Mosley said in his presentence interview that he cannot drive

through Five Points without someone trying to shoot him. In fact, he said he’s been

shot at twice in Five Points since his most recent release from prison in 2015. And a



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number of Mosley’s friends have been fatally shot—two of them in his presence.

During one of these attacks, Mosley was shot in the leg.

      In light of the violence that follows him around Five Points, Mosley explained

that he carries guns for self-protection. He believed he only survived the shooting

outside the store because he brandished his gun, which gave him time to flee. At his

sentencing hearing, Mosley acknowledged that he should stay away from Five Points.

But the government argued that his continual presence in the neighborhood—despite

the trouble it has caused him—suggested he’d keep going back.

      The district court agreed with the government. It found that Mosley believes

he needs to carry a handgun for self-defense when he goes to Five Points. And

although the district court explained that Mosley should just stay away from Five

Points, it expressed skepticism that he would do so. Therefore, the district court

posited that Mosley will likely continue to possess a firearm in violation of

§ 922(g)(1). And it concluded that a lengthier sentence is needed to keep him from

endangering the public. Nevertheless, the district court opined that the government’s

request for a 100-month sentence was too long, so it sentenced Mosley to 60 months

in prison. Mosley argues on appeal that his sentence is substantively unreasonable.

                                       Analysis

      We review the substantive reasonableness of the district court’s sentencing

decision for abuse of discretion. United States v. Lopez-Macias, 661 F.3d 485, 488–

89 (10th Cir. 2011). Indeed, the district court rarely has as much discretion as it does

when it sentences a criminal defendant. See United States v. McComb, 519 F.3d

                                           3
1049, 1053 (10th Cir. 2007) (explaining that district court has wide discretion

because “there are perhaps few arenas where the range of rationally permissible

choices is as large as it is in sentencing”). Thus, we will only reverse “if the court

‘exceeded the bounds of permissible choice,’ given the facts and the applicable law

in the case at hand.” Id. (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n.2

(10th Cir. 1986)).

      Two sources instruct district courts’ sentencing decisions: 18 U.S.C. § 3553(a)

and the Guidelines. Section 3553(a) lists a number of factors that district courts must

consider in determining an appropriate sentence. The Guidelines attempt to establish

uniformity within the § 3553(a) regime by creating “a system under which a set of

inputs specific to a given case (the particular characteristics of the offense and

offender) yield[] a predetermined output (a range of months within which the

defendant could be sentenced).” Peugh v. United States, 569 U.S. 530, 535 (2013).

      “[I]n the ordinary case, the [Guidelines’] recommendation of a sentencing

range will ‘reflect a rough approximation of sentences that might achieve § 3553(a)’s

objectives.’” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quoting Rita v.

United States, 551 U.S. 338, 350 (2007)). Accordingly, “district courts must treat the

Guidelines as the ‘starting point and the initial benchmark.’” Id. at 108 (quoting Gall

v. United States, 552 U.S. 38, 49 (2007)). “But a district court can vary from the

[G]uidelines so long as it does not do so arbitrarily and capriciously.” United States

v. Worku, 800 F.3d 1195, 1208 (10th Cir. 2015). Therefore, a district court may

depart from the Guidelines when “genuinely distinguishing factors” demarcate the

                                            4
case before it from the ordinary case covered by the Guidelines. United States v.

Friedman, 554 F.3d 1301, 1310 (10th Cir. 2009); see also Kimbrough, 552 U.S.

at 109 (“[A] district court’s decision to vary from the advisory Guidelines may attract

greatest respect when the sentencing judge finds a particular case ‘outside the

“heartland” to which the Commission intends individual Guidelines to apply.’”

(quoting Rita, 551 U.S. at 351)).

      Here, Mosley argues the district court arbitrarily departed from the Guidelines

when it sentenced him to 60 months in prison. In other words, he argues that his

sentence is unreasonably long in light of the § 3553(a) factors. See United States v.

Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013). But the district court found that

Mosley’s history and characteristics and the need to protect the public warranted a

longer sentence. And Mosley doesn’t argue that these were improper considerations.

Indeed, both are factors the district court must take into account when weighing a

sentence. See § 3553(a)(1), (2)(C). Rather, Mosley argues that the district court gave

these factors too much weight because (1) the Guidelines already take his criminal

history into account; and (2) nothing about his crime posed a particular threat to the

public. But neither argument persuades us that his sentence is arbitrary or capricious.

See Worku, 800 F.3d at 1208.

      First, the Guidelines don’t necessarily account for the special circumstances of

Mosley’s history that motivated the district court to sentence him beyond the

recommended Guidelines range. The district court wasn’t merely concerned with

Mosley’s past recidivism; rather, it worried that Mosley’s prior prison sentences

                                           5
didn’t deter him from continuing to violate § 922(g)(1). Thus, the district court

concluded that the only way to prevent Mosley from continuing to violate § 922(g)(1)

was to keep him in prison. The district court reasonably drew this conclusion in light

of Mosley’s repeated § 922(g)(1) violations, his self-professed belief that he needs to

carry a gun to protect himself, and his apparent inability to separate himself from

Five Points.

      Second, it’s true that Mosley said he only carried the gun for self-defense

purposes and the district court appeared to credit this assertion. But as the

government argues, even if Mosley doesn’t intend to instigate violence, he risks

escalating violence and endangering bystanders by carrying a loaded gun in Five

Points. Therefore, it was reasonable for the district court to conclude that an above-

Guidelines sentence was necessary to protect the public.

      The likelihood that Mosley will reoffend and the need to protect the public

from future offenses set this case apart from the standard § 922(g)(1) violation.

Accordingly, the district court didn’t abuse its discretion by granting the

government’s motion for an above-Guidelines sentence.

                                      Conclusion

      For the reasons stated above, we affirm Mosley’s sentence.



                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge

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