### 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 Norther n District of Texas USDC No. 4:12

- CR

- 252

- 1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges

. PER CURIAM: * T he 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 pre sumption regarding the number of victims affected by Sweet ’s possession of stolen mail. Because Sweet did not

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 08/27/2014No. 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, 16 4

- 6 7 (5th Cir. 2013), Sweet argues that he should have received a 4

- level increase instead of a 6

- level increase

. T he government responds that even if Sweet is correct, the sentence actually imposed would nonetheless have f a ll en 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, offer s no rebuttal and does not dispute the government’s alternative calculation

. W hether or not the government’ s alternative calculation is correct, therefore, Sweet has waived his opportunity to challenge it

. 3 Accordingl y, 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 n either identified any such evidence nor addressed the issue in his brief. T he district c ourt 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