Eleventh Circuit Remands case for Failure to Elicit Objections: Mosely

Facts: Felon in Possession, Judge does not ask for objections before carrying out sentence.

Mosely was involved in a foot and car chase with police. During the chase he drove through stop signs and almost crashed into other cars. While running, he hid a gun under a trailer near a house. He was arrested near there. The firearm was reported stolen in 2017.

Mosely was charged with felon in possession of a weapon. The PSR recommended an enhancement because the firearm was “reported stolen out of the Hillsborough County Sheriff's Office.” Mosely did not object to the factual findings in the PSR or the calculation of the guideline range.

The guideline range ended up being calculated to a range of 37-46 months imprisonment. Both counsels argued for a sentence in the guideline range. The court noted Mosely’s criminal record and that Mosely “led police on a highspeed chase to avoid arrest and created an ‘extremely dangerous’ situation by ditching the firearm ‘in an urban neighborhood full of kids.’” The court varied 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 court did not further elaborate but indicated that all of this would be written in the judgment. The court sentenced Mosely to 87 months in prison.

In the statement of reasons, the court noted that Mosely had a criminal history, lack of employment and possession of the car. The court also said that “it imposed the sentence, in part, because “[t]he stolen weapon that [Mosley] possessed was stolen from the police department.”

Mosely took issue: “Mosley appeals his sentence, arguing the district court erred in sentencing him based on that conclusion without first allowing him an opportunity to object.”

HOLDING:  The Court Erred in imposing sentence and not eliciting fully articulated objections."

The claims here stem from United States vs. Jones, from the 90’s in the Eleventh Circuit:

The addendum cannot serve, however, to limit the objections cognizable on appeal, because it does not take into account what transpires at the sentencing hearing itself. For example, the district court might not adopt as its own findings of fact the facts recited in the report or apply the guidelines in the manner proposed; furthermore, new causes for objection, which the parties could not reasonably have anticipated, may arise during the hearing or during the imposition of sentence. Therefore, the district court must give the parties an opportunity not only to resolve the objections contained in the addendum, but also—after the court states its factual findings, applies the guidelines, and imposes sentence—to object to the district court's ultimate findings of fact and conclusions of law and to the manner in which the sentence is pronounced. This will serve the dual purpose of permitting the district court to correct on the spot any error it may have made and of guiding appellate review.

United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)

So in other words, the district court in this case was to offer a time to object to the district court’s findings of fact and conclusion of law.

Specifically in the Mosely case no one mentioned that the firearm was stolen from a police department until the judge stated it.

“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” in the Statement of Reasons. In this particular instance, the post-sentencing form exposed an error in the district court's sentencing process.”

The court noted that this was a substantive violation and not just technical:

“Since the factual dispute Mosley asserts was not discussed by either party at sentencing, the record is not sufficient for meaningful appellate review. In other words, this is not a mere “technical” Jones violation.”

“But, in this case, the district court did not state fully its basis for departing during the sentencing hearing but rather said it would explain its reasoning in the judgment and then explained itself in the Statement of Reasons. In this particular instance, the post-sentencing form exposed an error in the district court's sentencing process.”

The court Vacated the sentence and remanded the case back to the district court. No. 20-11146