IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20061

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARY MOSLEY,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-284-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Mary Mosley appeals her jury trial conviction and 135-month sentence 

for aiding and abetting a bank robbery. She contends that the trial evidence 

was legally insufficient to prove her guilt beyond a reasonable doubt and that 

the district court erroneously applied Guidelines sentence enhancements for 

abduction and for using a firearm to facilitate the commission of the robbery. 

We affirm.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2019

Lyle W. Cayce

Clerk

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No. 19-20061

2

Because error was not preserved, we review the sufficiency of the 

evidence for plain error. See United States v. Smith, 878 F.3d 498, 503 (5th 

Cir. 2017), cert. denied, 139 S. Ct. 787 (2019). Mosley argues that her 

conviction rests on the self-serving testimony of her three co-defendants, and 

at trial she pursued a theory that one of them, Kendrick Miller, manipulated 

her into participating in the robbery. However, the jury heard the testimony

casting doubt on the co-defendants’ credibility and still chose to believe them, 

a decision we will not second guess. See United States v. Green, 293 F.3d 886, 

895 (5th Cir. 2002); United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997). 

The trial evidence sufficiently established that Mosley shared her codefendants’ intent to rob the bank at which she worked; that she engaged in 

affirmative conduct designed to aid the robbery by, inter alia, leaving the back 

door to the bank unlocked; and that she sought by her actions to make the 

robbery succeed. See United States v. Lopez-Urbina, 434 F.3d 750, 757-58 (5th 

Cir. 2005). Mosley thus fails to show that her conviction resulted in a manifest 

miscarriage of justice. See United States v. Phillips, 477 F.3d 215, 219 (5th 

Cir. 2007).

Mosley next contends that the district court erroneously enhanced her 

sentence based on its finding that Mosley’s co-worker, Kimberly Saucedo, “was 

abducted to facilitate commission of the offense or to facilitate escape.” 

U.S.S.G. § 2B3.1(b)(4)(A). She argues that the evidence shows that Saucedo 

was moved only within the bank and was not forced to exit the bank. We have 

consistently held such facts to be sufficient to support the abduction 

enhancement. See United States v. Smith, 822 F.3d 755, 764 (5th Cir. 2016).

Lastly, Mosley asserts that the district court erred by applying an 

enhancement because “a dangerous weapon was otherwise used” during the 

commission of the robbery. § 2B3.1(b)(2)(D). She avers that the record fails to 

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establish that she could have reasonably foreseen that her co-defendant would 

use a gun, see § 1B1.3(a)(1)(B) (relevant conduct); that she was acquitted of 

aiding and abetting the use and carrying of a firearm during a crime of 

violence; and that, under Nelson v. Colorado, 137 S. Ct. 1249 (2017), the 

firearms enhancement could not be predicated on conduct for which she was 

acquitted.

Nelson is inapposite; the district court could rightly consider Mosley’s

acquitted conduct, which it needed find only by a preponderance of the 

evidence. See United States v. Watts, 519 U.S. 148, 156-57 (1997). Given the 

testimony that Mosley gave Miller the gun and suggested using it so that the 

robbery would not look like an “inside job,” the district court did not clearly err 

in finding that she could reasonably foresee the gun being used. See United 

States v. Fernandez, 770 F.3d 340, 342, 344-45 (5th Cir. 2014); United States 

v. Wall, 180 F.3d 641, 644 (5th Cir. 1999). Mosley fails to show sentencing 

error.

The judgment is AFFIRMED.

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