              Case: 13-15365    Date Filed: 07/07/2014   Page: 1 of 6


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-15365
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:10-cr-00005-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JUSTIN MOSELY,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                  (July 7, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Justin Mosely appeals the 14-month sentence imposed by the district court

pursuant to 18 U.S.C. § 3583(e)(3) following the second revocation of his
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supervised release. Mosely argues that his sentence is procedurally unreasonable

because the district court failed to consider the advisory guideline range and other

18 U.S.C. § 3553(a) factors before imposing sentence. After careful review of the

record and the parties’ briefs, we affirm.

      In August 2010, Mosely pleaded guilty to theft from a federal firearm

licensee and was sentenced to 24-months imprisonment to be followed by three

years of supervised release. After his release from prison, the district court

revoked Mosely’s supervised release in October 2012 because he admitted using a

controlled substance and associating with a person engaged in criminal activity.

The district court sentenced him to six-months imprisonment to be followed by

two years of supervised release. Shortly after he was released from that term in

prison, on August 16, 2013 Mosely’s probation officer petitioned to revoke his

supervised release again, stating that Mosely possessed a controlled substance,

associated with people engaged in criminal activity, and associated with a

convicted felon without permission.

      At his revocation hearing Mosely admitted the violations in the petition.

The district court noted that this was the second time in 12 months that Mosely had

been in court for using illegal drugs. After hearing from Mosely, the district court

told him that he sounded sincere, but found that his actions spoke “even louder.”

The district court sentenced Mosely to 14-months imprisonment to be followed by


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16 months of supervised release. After imposing the sentence, the district court

stated: “The Court, of course, prior to entering the sentence, has considered the

Sentencing Commission Chapter 7 policy statements.” Neither party objected to

the district court’s findings of fact or conclusions of law.

      Mosely’s written judgment stated that the sentence was “imposed pursuant

to the Sentencing Reform Act of 1984,” and described Mosely’s underlying plea

and sentence, his first release revocation and sentence, and the facts underlying the

revocation at issue here. The district court also stated Mosley was “forthright [in]

accepting responsibility for his criminal associations and possession of marihuana.

The Court notes that the defendant’s admission and apology seem sincere;

however, the defendant’s conduct under supervision is what the Court must

consider.” The judgment stated that the court had imposed sentence “after

considering the Chapter Seven Policy Statements.”

      Because Mosely did not object to any procedural deficiencies before the

district court, our review is for plain error. See United States v. Rodriguez, 627

F.3d 1372, 1380 (11th Cir. 2010). Establishing plain error requires a

demonstration of error that is plain that affected both substantial rights and the

fairness of the judicial proceedings. Id. The defendant bears the burden of

showing prejudice. United States v. Rodriguez, 398 F.3d 1291, 1299–300 (11th

Cir. 2005).


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      In reviewing the procedural reasonableness of a sentence, we examine

whether the district court considered the § 3553(a) factors and adequately

explained the chosen sentence. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). A district court is not required to discuss on the record each of

the § 3553(a) factors. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008) (per curiam). An acknowledgment that it has considered the factors together

with the parties’ arguments is sufficient. Id.

      Upon determining that a defendant violated a condition of supervised

release, the district court may revoke the term of supervision and impose a term of

imprisonment after considering: (1) the applicable guideline range; (2) the nature

and circumstances of the offense and the history and characteristics of the

defendant; (3) the need for the sentence imposed to afford adequate deterrence,

protect the public, and effectively provide the defendant with needed training,

medical care, or other correctional treatment; (4) the applicable Sentencing

Commission policy statements; (5) the need to avoid unwarranted sentence

disparities; and (6) the need to provide restitution. 18 U.S.C. §§ 3553(a), 3583(e);

see also United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007) (per

curiam).

      Mosely has not shown that the district court committed an error that was

plain during his sentencing. The district court explicitly discussed Mosely’s


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history, the circumstances of his violation, and the arguments of the parties. It also

stated that it had considered the “Chapter 7 policy statements,” which include the

§ 3553(a) factors and the advisory guideline range. Given this record and our

precedent, the district court sufficiently explained its sentence. See Gonzalez, 550

F.3d at 1324. Further, Mosely has cited no authority for his argument that district

courts must acknowledge the Chapter 7 policy statements before handing down a

sentence, and we have found none.

      In any event, Mosely has not established that, but for the district court’s

failures to state his guideline range and provide more references to the sentencing

factors, there is a reasonable probability he would have received a lower sentence.

See United States v. Cartwright, 413 F.3d 1295, 1300–01 (11th Cir. 2005) (per

curiam); Rodriguez, 398 F.3d at 1299–300. Mosely’s prison sentence was

statutorily valid, as he was eligible for a release-revocation sentence of up to two-

years imprisonment. See 18 U.S.C. §§ 924(i)(1), 3559(a)(3), 3583(e)(3). His 14-

month sentence was a 5-month upward variance from the top of his guideline

range. See USSG §§ 7B1.1(a)(3), 7B1.4(a). Because the effect of any alleged

procedural deficiencies during Mosely’s sentencing is at best uncertain, he has not

met his burden of establishing prejudice under plain error review. See Cartwright,

413 F.3d at 1300–01; Rodriguez, 398 F.3d at 1299–300. Therefore, we affirm

Mosely’s sentence.


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AFFIRMED.




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