United States v. Karijmah Tremaine Mosely

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11146
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARIJMAH TREMAINE MOSELY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00107-WFJ-AEP-1
____________________
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2 Opinion of the Court 20-11146
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
BROWN,* District Judge.
PER CURIAM:
Karijmah Mosley appeals his sentence for possessing a fire-
arm after being convicted of a felony, in violation of 18 U.S.C. §§
922(g) and 924(a)(2). Mosley argues the district court did not elicit
objections as required by United States v. Jones, 899 F.2d 1097 (11th
Cir. 1990), overruled on other grounds by United States v. Morrill,
984 F.2d 1136 (11th Cir. 1993) (en banc). We vacate and remand
for further proceedings consistent with this opinion.
I. BACKGROUND
Mosley pleaded guilty to the sole count of the indictment.
The presentence investigation report (“PSI”) recounted the details
of his criminal activity. It explained that, in January 2018, Mosely
was driving a car without a working tag light. When the police
tried to stop him, Mosely fled, driving through stop signs and
nearly crashing into other cars. He eventually ditched the car, fled
on foot, and hid a firearm under a trailer near a residence where he
was arrested. The PSI explained that the firearm “was reported
stolen in Hillsborough County on November 8, 2017.” In calculat-
ing Mosley’s offense level, the PSI recommended a two-level en-
hancement because the firearm was “reported stolen out of the
* Honorable Michael L. Brown, United States District Judge for the Northern
District of Georgia, sitting by designation.
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20-11146 Opinion of the Court 3
Hillsborough County Sheriff’s Office.” Mosely asserted no objec-
tions to the factual findings in the PSI or its calculation of the advi-
sory guideline range.
At the sentencing hearing, the district court adopted the PSI
and calculated an advisory range of 37 to 46 months’ imprison-
ment. Before imposing sentence, the district court heard argument
from the United States in support of its request for a sentence
within the guideline range. Defense counsel also argued in support
of a guideline sentence. The district court then commented on
Mosley’s criminal activity and background. It recognized Mosley
had led police on a highspeed chase to avoid arrest and created an
“extremely dangerous” situation by ditching the firearm “in an ur-
ban neighborhood full of kids.” The district court noted that Mos-
ley had been arrested or cited 59 times in the last 14 years, had no
lawful employment except for one short time, had no evidence he
got the car from a lawful job, and likely also carried a concealed
weapon. The district court explained it would vary upward based
on “3553(a)(1), history of the defendant and nature of the offense .
. . (a)(2)(a), seriousness of the offense, to promote respect for the
law, just punishment; (a)(2)(b), deterrence; and (a)(2)(c), to protect
the public; and then (a)(4), which is kinds of sentences available.”
The district court did not explain its assessment of those factors but
rather said it would “write all this down in the judgment.” The
court sentenced Mosley to 87 months’ imprisonment.
In its subsequent Statement of Reasons, the district court re-
peated some of its remarks about Mosley’s criminal history, lack of
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4 Opinion of the Court 20-11146
employment, and possession of the automobile. The district court
also stated it imposed the sentence, in part, because “[t]he stolen
weapon that [Mosley] possessed was stolen from the police depart-
ment.” Mosley appeals his sentence, arguing the district court
erred in sentencing him based on that conclusion without first al-
lowing him an opportunity to object.
II. DISCUSSION
Under Jones, a district court must “elicit fully articulated ob-
jections, following imposition of sentence, to the court’s ultimate
findings of fact and conclusions of law.” Jones, 899 F.2d at 1102.
The purposes of Jones are to elicit objections “for appellate review”
and to “give the court an opportunity to correct any errors it may
have made, which if corrected to the objecting party’s satisfaction
will render an appeal unlikely.” United States v. Irey, 612 F.3d
1160, 1245 (11th Cir. 2010) (en banc) (Tjoflat, J., concurring in part
and dissenting in part). We review de novo whether a district court
has given a defendant the required opportunity to object to its fac-
tual and legal findings. United States v. Carrasquillo, 4 F.4th 1265,
1271 (11th Cir. 2021). When the district court fails to do so, we
ordinarily “vacate the sentence and remand to the district court to
give the parties an opportunity to present their objections.” United
States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). If the rec-
ord allows review of the parties’ objections, however, we will not
remand but will rather consider the parties’ objections de novo. Id.The district court did not follow the Jones procedure in this
case. During the sentencing hearing, no one mentioned the
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20-11146 Opinion of the Court 5
firearm having been stolen from a police department. Paragraphs
5 through 8 of the PSI set forth the “Offense Conduct,” that is, the
relevant facts of the case. Paragraph 6 explains the firearm “was
reported stolen in Hillsborough County.” Paragraphs 13 through
23 calculate the offense level. Paragraph 15 recommends a two-
level enhancement because the firearm “was reported stolen out of
the Hillsborough County Sheriff’s Office.” When read together,
these allegations explain that the gun was reported stolen in Hills-
borough County to that sheriff’s office, not that it was stolen from
the sheriff.
The United States disputes this interpretation. It says the
two paragraphs in the PSI mean “that Hillsborough County was
the general geographic region of the theft and that the county sher-
iff’s office was the specific location of the theft.” So the United
States claims the district court provided Mosely every opportunity
to object at sentencing. We disagree. The United States’ argument
focuses on the words “out of” in paragraph 15. But that paragraph
contains the probation officer’s diction and characterization of the
evidence when calculating the guidelines. The factual section of
the PSI (paragraph 6) clearly states the firearm was reported stolen
“in” that county with no reference to the location of the theft. It
seems unlikely the probation officer was adding facts about the vic-
tim of the theft when he applied the factual finding in paragraph 6
to the “stolen firearm” enhancement in paragraph 15. The factual
findings in the PSI control. The simplest reading of these two par-
agraphs is that the firearm was reported by the Hillsborough
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6 Opinion of the Court 20-11146
Sheriff’s Office as having been stolen within its jurisdiction. And
that is all. Nevertheless, in the Statement of Reasons, the district
court found that “[t]he stolen weapon that [Mosley] possessed was
stolen from the police department.” Because the district court first
announced this conclusion after the sentencing hearing when it is-
sued the written document, the district court did not provide Mos-
ley an opportunity to object to its finding as to the victim of the
theft.
Since the factual dispute Mosley asserts was not discussed by
either party at sentencing, the record is not sufficient for meaning-
ful appellate review. In other words, this is not a mere “technical”
Jones violation. See United States v. Holloway, 971 F.2d 675, 681
(11th Cir. 1992) (where defendant did not object to the PSI or his
sentence at the sentencing hearing, the district court’s failure to
elicit objections was not a mere technical violation of Jones and the
sentencing record was not sufficiently developed for review); cf.
United States v. Cruz, 946 F.2d 122, 123–24, 124 n.1 (11th Cir. 1991)
(reviewing a technical Jones violation claim where record was suf-
ficient for appellate review because, at the sentencing hearing,
Cruz opposed the district court’s calculation of the amount of
drugs used to determine his guideline range, the same claim he
raised on appeal). We thus remand to the district court so it may
first correct any error, elicit full objections, and impose the result-
ing sentence.
A district court’s post-sentencing Statement of Reasons form
is not typically a document a defendant may use to pursue a Jones
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20-11146 Opinion of the Court 7
violation. Federal law requires a district court to “state in open
court the reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c). If the district court imposes a sentence outside
the guideline range, it must state the specific reason for the impo-
sition of that sentence and complete the Statement of Reasons
form. Id. § 3553(c)(2). The written form merely memorializes the
district court’s reasoning. In most instances, any discrepancy be-
tween a court’s real-time pronouncement and later filed form
would not support a Jones claim. But, in this case, the district court
did not state fully its basis for departing during the sentencing hear-
ing but rather said it would explain its reasoning in the judgment
and then explained itself in the Statement of Reasons. In this par-
ticular instance, the post-sentencing form exposed an error in the
district court’s sentencing process. The Court is not inviting new
Jones claims based on Statements of Reasons beyond this situation.
The Court offers no opinion on the reasonableness of the
sentence. That is for the district court to reassess after providing
Mosely an opportunity to object to any factual findings underlying
its analysis. Mosley also argues the district court failed to allow him
to object to three other findings (the gun was a kind used in street
crime in the area, Mosley had never been employed, and the car he
had been driving had not been obtained through legal wages), and
the United States agrees a Jones error occurred regarding the first.
The Court offers no opinion on these findings but invites the dis-
trict court to give Mosley an opportunity to address them. Mosley
also argues the district court erred in imposing a different, stricter
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8 Opinion of the Court 20-11146
condition of supervised release in its written judgment (full-time,
verifiable, taxable job) than in its oral pronouncement (full-time,
verifiable job). On remand, the district court should ensure its writ-
ten judgment conforms with its oral pronouncement. See United
States v. Bates, 213 F.3d 1336, 1340 (11th Cir. 2000) (“When a sen-
tence pronounced orally and unambiguously conflicts with the
written order of judgment, the oral pronouncement governs.”).
Because we vacate Mosely’s sentence and remand for resentencing,
we do not pass on the substantive reasonableness of the sentence
or the child support special condition.
III. CONCLUSION
We VACATE Mosley’s sentence and REMAND for resen-
tencing in accordance with this opinion.