     Case: 19-20061      Document: 00515178832         Page: 1    Date Filed: 10/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                    No. 19-20061                          FILED
                                                                    October 29, 2019
                                  Summary Calendar
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARY MOSLEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-284-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Mary Mosley appeals her jury trial conviction and 135-month sentence
for aiding and abetting a bank robbery. She contends that the trial evidence
was legally insufficient to prove her guilt beyond a reasonable doubt and that
the district court erroneously applied Guidelines sentence enhancements for
abduction and for using a firearm to facilitate the commission of the robbery.
We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-20061

      Because error was not preserved, we review the sufficiency of the
evidence for plain error. See United States v. Smith, 878 F.3d 498, 503 (5th
Cir. 2017), cert. denied, 139 S. Ct. 787 (2019).      Mosley argues that her
conviction rests on the self-serving testimony of her three co-defendants, and
at trial she pursued a theory that one of them, Kendrick Miller, manipulated
her into participating in the robbery. However, the jury heard the testimony
casting doubt on the co-defendants’ credibility and still chose to believe them,
a decision we will not second guess. See United States v. Green, 293 F.3d 886,
895 (5th Cir. 2002); United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997).
The trial evidence sufficiently established that Mosley shared her co-
defendants’ intent to rob the bank at which she worked; that she engaged in
affirmative conduct designed to aid the robbery by, inter alia, leaving the back
door to the bank unlocked; and that she sought by her actions to make the
robbery succeed. See United States v. Lopez-Urbina, 434 F.3d 750, 757-58 (5th
Cir. 2005). Mosley thus fails to show that her conviction resulted in a manifest
miscarriage of justice. See United States v. Phillips, 477 F.3d 215, 219 (5th
Cir. 2007).
      Mosley next contends that the district court erroneously enhanced her
sentence based on its finding that Mosley’s co-worker, Kimberly Saucedo, “was
abducted to facilitate commission of the offense or to facilitate escape.”
U.S.S.G. § 2B3.1(b)(4)(A). She argues that the evidence shows that Saucedo
was moved only within the bank and was not forced to exit the bank. We have
consistently held such facts to be sufficient to support the abduction
enhancement. See United States v. Smith, 822 F.3d 755, 764 (5th Cir. 2016).
      Lastly, Mosley asserts that the district court erred by applying an
enhancement because “a dangerous weapon was otherwise used” during the
commission of the robbery. § 2B3.1(b)(2)(D). She avers that the record fails to



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                                   No. 19-20061

establish that she could have reasonably foreseen that her co-defendant would
use a gun, see § 1B1.3(a)(1)(B) (relevant conduct); that she was acquitted of
aiding and abetting the use and carrying of a firearm during a crime of
violence; and that, under Nelson v. Colorado, 137 S. Ct. 1249 (2017), the
firearms enhancement could not be predicated on conduct for which she was
acquitted.
         Nelson is inapposite; the district court could rightly consider Mosley’s
acquitted conduct, which it needed find only by a preponderance of the
evidence. See United States v. Watts, 519 U.S. 148, 156-57 (1997). Given the
testimony that Mosley gave Miller the gun and suggested using it so that the
robbery would not look like an “inside job,” the district court did not clearly err
in finding that she could reasonably foresee the gun being used. See United
States v. Fernandez, 770 F.3d 340, 342, 344-45 (5th Cir. 2014); United States
v. Wall, 180 F.3d 641, 644 (5th Cir. 1999). Mosley fails to show sentencing
error.
         The judgment is AFFIRMED.




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