United States v. Mosley , 426 F. App'x 159 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4762
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IVEA MOSLEY, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:10-cr-00011-RBS-DEM-1)
Submitted: April 18, 2011 Decided: April 29, 2011
Before TRAXLER, Chief Judge, and WILKINSON and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Arenda L. Wright
Allen, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard D. Cooke, Dee
M. Sterling, Assistant United States Attorneys, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ivea Mosley, Jr. pled guilty to driving under the
influence, third offense, in violation of the Assimilative
Crimes Act, 18 U.S.C. §§ 7 & 13 (assimilating Va. Code Ann.
§§ 18.2-266, 270(C)(1) (2009)). The district court sentenced
him to eighteen months’ imprisonment. He appeals, arguing that
the district court erred by imposing this sentence for the
primary purpose of rehabilitation. Finding no reversible error,
we affirm.
We review a district court’s imposition of a sentence
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). We presume that a
sentence within a properly-calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). Mosley contends that the district court erred by relying
primarily on a perceived need for rehabilitation and treatment
in determining the length of the sentence imposed. In the
proceedings below, Mosley did not mention 18 U.S.C. § 3582, the
statute upon which he now relies, nor did he otherwise object to
the district court’s consideration of his need for alcohol
rehabilitation when determining the length of Mosley’s sentence.
Because Mosley did not “sufficiently alert[] the district court”
to the issue, United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010), we review his claim for plain error only.
2
Here, the district court sentenced Mosley to eighteen
months’ imprisonment for driving under the influence. The
statutory range for this offense was ninety days to five years.
The district court expressed its concern that this was Mosley’s
third conviction for this serious and dangerous offense, stated
the need to deter Mosley from continuing this behavior and the
need to protect the public from the dangers resulting from this
criminal conduct. The district court also emphasized that
Mosley had completed out-patient substance abuse treatment on
two occasions and yet continued to experience problems with
alcohol and continued to operate a motor vehicle while
intoxicated. The court therefore determined that residential
treatment focusing on alcohol abuse was needed, and that an
eighteen-month term of imprisonment was necessary for Mosley to
receive this intensive treatment, to deter further criminal
activity and to protect the public.
While the district court clearly emphasized the
importance of rehabilitation in determining the appropriate
sentence, the court also considered the need for deterrence and
the need to protect the public as important factors. As Mosley
acknowledges, there is a split of authority as to the effect of
§ 3582(a). Compare United States v. Hawk Wing, 433 F.3d 622,
630 (8th Cir. 2006) (“[A]fter the district court chooses
imprisonment as a proper punishment, it is not prohibited under
3
§ 3582 from considering correction and rehabilitation in
determining the length of the imprisonment.”) with In re Sealed
Case, 573 F.3d 844, 849 (D.C. Cir. 2009) (“Given the plain
language of sections 3553(a) and 3582(a), we agree . . . that
sentencing courts may not treat rehabilitation as a reason for a
longer term of imprisonment.”). Given this split of authority,
any error by the district court in considering rehabilitation
cannot amount to plain error. See United States v. Neal, 101
F.3d 993, 998 (4th Cir. 1996). Moreover, “look[ing] to ‘the
totality of the circumstances’ [we conclude that] the ultimate
sentence is reasonable.” United States v. Evans, 526 F.3d 155,
165 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).
Accordingly, we find no plain error and no abuse of discretion
in the district court’s determination that an eighteen-month
sentence is appropriate for Mosley’s offense. See United States
v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
We affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
4