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United States v. Mayo ( 2021 )


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  • Case: 20-30553      Document: 00515905463         Page: 1      Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit                                United States Court of Appeals
Fifth Circuit
FILED
No. 20-30553                             June 18, 2021
Summary Calendar                          Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
James Albert Mayo, III,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CR-6-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
James Albert Mayo, III, was convicted of possession of ammunition
by a felon in violation of
    18 U.S.C. § 922
    (g)(1), and he was sentenced to serve
51 months in prison and a three-year term of supervised release. Now, he
raises challenges to his sentence and the jury’s verdict.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30553      Document: 00515905463          Page: 2    Date Filed: 06/18/2021
No. 20-30553
First, Mayo contends that the district court erred by imposing a
U.S.S.G. § 2K2.1(b)(4)(A) adjustment because the jury did not find that he
possessed a firearm, nor did the evidence suffice to show that he possessed
it. “[A] jury’s verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.” United States v. Watts,
    519 U.S. 148
    , 156 (1997); see also United States v. Valdez,
    453 F.3d 252
    , 264
(5th Cir. 2006). Additionally, review of the record supports the district
court’s conclusion that a preponderance of the evidence shows that Mayo
possessed the disputed stolen firearm. See Watts,
    519 U.S. at 156
    ; United
States v. Houston,
    364 F.3d 243
    , 248 (5th Cir. 2004).
Next, Mayo argues that the verdict cannot stand because the
indictment charged that he possessed both a firearm and ammunition and the
jury found only that he possessed ammunition. This argument is unavailing
because offenses may be charged conjunctively and proven disjunctively. See
United States v. Dickey,
    102 F.3d 157
    , 164 n.8 (5th Cir. 1996).
AFFIRMED.
2