*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-41592

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUSTIN MOSELY,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:98-CR-80-1

_________________________________________________________________

January 27, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Justin Mosely appeals his sentence as a career offender under

the sentencing guidelines. Mosely was charged in a single-count

indictment with possessing a prohibited object (two sharpened metal

rods) while the inmate of a prison, in violation of 18 U.S.C.

§ 1791(a)(2) and (b)(3). Mosely pled guilty to the single charge

of the indictment pursuant to a written plea agreement. The

district court sentenced Mosely to 60 months’ imprisonment, three

years’ supervised release, and a special assessment of $100. 

A defendant may appeal a sentence imposed under the sentencing

guidelines if the sentence “(1) was imposed in violation of law;
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(2) was imposed as a result of an incorrect application of the

sentencing guidelines; or (3) is greater than the sentence

specified in the applicable guideline range. . . .” 18 U.S.C.

§ 3742(a). This court reviews an issue raised on appeal that was

not raised in the lower court for plain error. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1995)(en banc). 

In the PSR, the probation officer established Mosely’s base

offense level at 13. Mosely’s offense level was determined to be

17 because he was deemed a “career offender.” See § 4B1.1. This

determination was based, in part, on two 1973 convictions for armed

robbery. One conviction was for federal armed robbery in Kentucky

for which Mosely was sentenced to 25 years. The other was for

armed robbery in Georgia for which Mosely received ten years

imprisonment. 

Mosely argues that his sentence based on his being a “career

offender” was in error. He contends that the PSR erroneously

included his 1973 conviction for armed robbery in Georgia in the

calculation of his criminal history category and his offense level

as a career offender. The government agrees with Mosely’s

position. As Mosely did not raise this issue in the district

court, it is reviewed for plain error. Calverley, 37 F.3d at

162-64. 

The sentencing guidelines provide that a person is a career

offender if:
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(1) the defendant was at least eighteen years old at the

time the defendant committed the instant offense of

conviction, (2) the instant offense of conviction is a

felony that is either a crime of violence or a controlled

substance offense, and (3) the defendant has at least two

prior felony convictions of either a crime of violence or

a controlled substance offense.

U.S.S.G. § 4B1.1. The application notes to § 4B1.2, which defines

the terms of § 4B1.1, indicate that the provisions of § 4A1.2 apply

in determining which convictions count for purposes of the career

offender enhancement. See § 4B1.2, comment. (n.3). Section

4A1.2(e)(1) provides that a felony conviction is only counted if it

was imposed or the defendant was incarcerated during the 15-year

period preceding the date of the instant offense. Mosely committed

the instant offense on December 23, 1997. In order for a

conviction to count under § 4A1.2(e)(1), Mosely would have had to

been imprisoned for the conviction between December 1982 and

December 1997. For the Georgia conviction, Mosely received a tenyear sentence and was released in June 1980. Thus, he was not

imprisoned for this conviction during the requisite time period.

Accordingly, the district court committed plain error in using the

Georgia conviction to enhance Mosely’s sentence as a career

offender.

A remand to the district court is in order whenever a sentence

has been imposed as a result of an incorrect application of the

Guidelines. Williams v. United States, 503 U.S. 193, 202 (1992).

Remand is appropriate unless the reviewing court concludes that,

based on the record as a whole, the error was harmless. Id. at
4

203. In order to meet this burden, there must be specific,

convincing evidence in the record that the district court had a

particular sentence in mind and would have imposed it

notwithstanding the error made in calculating the guideline range.

United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998). While

there is evidence in the record which indicates that the district

court may have intended to impose the five-year sentence

irrespective of the calculation error, it did not specifically

state that this was its intention. In addition, the government

concurs with Mosely that remand is appropriate in this case.

Accordingly, we order that the sentence imposed on Mosely be

VACATED, and we REMAND this case to the district court for

resentencing.

VACATED and REMANDED.