United States v. Khusar Mobley , 620 F. App'x 591 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS
OCT 15 2015
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10561
Plaintiff - Appellee, D.C. No. 4:12-cr-00235-YGR-1
v.
MEMORANDUM*
KHUSAR MOBLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted March 11, 2015
San Francisco, California
Before: CALLAHAN, M. SMITH, and WATFORD, Circuit Judges.
Khusar Mobley contends that the district court committed several procedural
errors and imposed a substantively unreasonable sentence. These claims are
without merit.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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1. Mobley argues that his sentence was predicated on the district court’s
allegedly erroneous factual finding that he was the “mastermind” of the robbery
conspiracy. He is incorrect. The district court performed an accurate Guidelines
calculation, determining that Mobley fell within Criminal History Category III,
with a total offense level of 22. Mobley received adjustments for financial
motivation, conviction under 18 U.S.C. § 111(b), more than minimal planning, and
obstruction of justice. The district court did not commit clear error by concluding
that the robbery involved “more than minimal planning.” U.S.S.G. § 2A2.2(b)(1);
United States v. Lindholm, 24 F.3d 1078, 1086–87 (9th Cir. 1994). Mobley and his
co-defendants set up a fake grenade-launcher transaction after exchanging many
text messages with their would-be buyers and luring them to the restaurant parking
lot for the robbery. See U.S.S.G. § 2A2.2 cmt. n.2. The court’s application of the
more-than-minimal-planning adjustment was not predicated on the court’s
description of Mobley as the “mastermind” of the offense.
Moreover, even if the facts did not support application of the more-than-
minimal-planning adjustment, Mobley’s total offense level would have remained
the same. The base offense level for the robbery conviction was 20, which under
the Guidelines became the base offense level for all three grouped counts. See
U.S.S.G. §§ 3D1.2(a)–(b), 3D1.3(a), 2B3.1(a), 2A2.2(a). Adding in the 2-level
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adjustment for obstruction of justice, which Mobley does not challenge, his total
offense level would be 22 in any event.
Mobley also contends that the district court improperly relied on outside
evidence in sentencing him, but, by his own admission, he can point to no such
evidence to support this claim.
The district court did not fail to consider Mobley’s near-juvenile status in
fashioning his sentence. The court appropriately weighed and rejected it as a
mitigating factor. Because Mobley was an adult, nothing more was required. See
United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir. 2009).
2. Mobley’s within-Guidelines sentence was not substantively
unreasonable. The district court explained why it was exercising its discretion to
impose a sentence at the high end of the Guidelines range. Nothing about
Mobley’s case compelled the court to impose a lower sentence. See United States
v. Carty, 520 F.3d 984, 995–96 (9th Cir. 2008) (en banc). Nor did the court abuse
its discretion by sentencing Mobley to a longer term of imprisonment than his co-
defendants. Unlike his co-defendants, Mobley was convicted of robbery, which
carries a higher base offense level than the assault charge to which his
co-defendants pleaded guilty. See U.S.S.G. §§ 2B3.1(a), 2A2.2(a). In addition,
unlike his co-defendants, Mobley received an enhancement for obstruction of
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justice and did not receive a downward adjustment for acceptance of responsibility.
See U.S.S.G. §§ 3C1.1, 3E1.1. These differences account for the gap between
Mobley’s sentence and the sentences imposed on his co-defendants.
AFFIRMED.