United States v. Gregory Lamont Moses , 333 F. App'x 505 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 7, 2009
No. 09-11512 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00116-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY LAMONT MOSES,
a.k.a. Greg Moses,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 7, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory L. Moses appeals his 262-month sentence imposed for conspiracy
to distribute and possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. § 846, and possession with the intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C) and 18 U.S.C. § 2. On
appeal, Moses argues that the district court erred in enhancing his offense level by
two levels under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon,
and an additional two levels under U.S.S.G. § 3B1.1(c) for his role in the offense.
We review sentencing cases for harmless error when the sentence imposed
would remain the same, regardless of the alleged error. See Williams v. United
States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992)
(stating that harmless error is applied to sentencing cases, and remand is
unnecessary if the party defending the sentence persuades the Court of Appeals
that the district court would have imposed the same sentence absent the erroneous
factor); United States v. Rice, 43 F.3d 601, 608 n.12 (11th Cir. 1995) (concluding
that issue of career offender needed no resolution where defendant was properly
sentenced to minimum mandatory sentence).
Upon review of the record and consideration of the parties’ briefs, we
affirm. In this case, any alleged error, with respect to the sentencing enhancements
for Moses’s possession of a dangerous weapon and his role in the offense, is
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harmless because the enhancements did not affect the district court’s selection of
the sentence imposed. Williams, 503 U.S. at 203, 112 S.Ct. at 1121. While the
probation officer calculated Moses’s offense level under chapters two and three of
the Sentencing Guidelines, and the district court heard Moses’s objections with
respect to the enhancements under those chapters, ultimately Moses was not
sentenced pursuant to chapters two and three. Moses was rather sentenced as a
career offender under chapter four with a statutory maximum life sentence. Under
the guidelines in chapter 4, his total adjusted offense level is 34, regardless of what
the level might be under chapters two and three. In short, Moses’s sentence was
not based on the enhancements which he challenges on appeal. Even if the district
court erred in assessing the challenged enhancements, Moses’s sentence would
remain the same. Rice, 43 F.3d 601, 608 n.12.
In conclusion, any error in the district court’s evaluation of firearm and
aggravating role enhancements is harmless, given that Moses was sentenced as a
career offender and the challenged enhancements did not affect the sentence
imposed. For the foregoing reasons, we affirm Moses’s sentence.
AFFIRMED.
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