IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11155

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JARED STANLEY SWEET,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-252-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

The defendant in this case, Jared Stanley Sweet, pled guilty to 

possession of stolen mail in violation of 18 U.S.C. § 1708 and received a 15-

month sentence. The district court imposed this sentence after calculating 

Sweet’s sentencing guideline range based in part on a 6-level increase under 

U.S.S.G. § 2B1.1. Sweet argues that the 6-level increase resulted from the 

district court’s misapplication of the presumption regarding the number of 

victims affected by Sweet’s possession of stolen mail. Because Sweet did not 

* 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

August 27, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-11155 Document: 00512747997 Page: 1 Date Filed: 08/27/2014
No. 13-11155

object to the sentence imposed or to the district court’s calculation of the 

guideline range, we review for plain error.1 Plain error does not arise unless 

the sentencing error affects the defendant’s substantial rights.2

Citing our analysis in United States v. Moore, 733 F.3d 161, 164-67 (5th 

Cir. 2013), Sweet argues that he should have received a 4-level increase

instead of a 6-level increase. The government responds that even if Sweet is 

correct, the sentence actually imposed would nonetheless have fallen within 

the correctly calculated guideline range. In other words, whereas Sweet’s 15-

month sentence falls at the bottom of the 15-to-21-month range calculated 

based on the 6-level increase actually applied by the district court, Sweet’s 

sentence would have fallen in the middle of a 12-to-18-month range calculated 

based on the 4-level increase proposed by Sweet. Sweet, who is represented by 

counsel, offers no rebuttal and does not dispute the government’s alternative 

calculation. Whether or not the government’s alternative calculation is correct, 

therefore, Sweet has waived his opportunity to challenge it.3

Accordingly, Sweet’s appeal is governed by the rule described in United 

States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011). In that case, we 

explained that “when the correct and incorrect ranges overlap and the 

defendant is sentenced within the overlap, ‘we do not assume, in the absence 

of additional evidence, that the sentence affects a defendant’s substantial 

rights.’”4 Sweet has neither identified any such evidence nor addressed the 

issue in his brief. The district court must therefore be AFFIRMED.

AFFIRMED.

1 See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

2 Id. at 392.

3 See Morris v. Livingston, 739 F.3d 740, 752 (5th Cir. 2014) (citing Yohey v. Collins, 

985 F.2d 222, 225 (5th Cir. 1993)). 4 Mudekunye, 646 F.3d at 290 (quoting United States v. Blocker, 612 F.3d 413, 416 

(5th Cir. 2010))(italics omitted).

2

 

 Case: 13-11155 Document: 00512747997 Page: 2 Date Filed: 08/27/2014