United States v. Karijmah Tremaine Mosley

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 11, 2025
• Docket: 23-13849
• Status: Unpublished

Opinion

USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-13849 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KARIJMAH TREMAINE MOSLEY,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cr-00107-WFJ-AEP-1 ____________________ USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 2 of 9

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Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Karijmah Mosley initially went to federal prison after plead- ing guilty to possessing a firearm as a convicted felon. That sen- tence didn’t last. Under our decision in United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), 1 we insist that a district court must “elicit fully articulated objections, following imposition of sen- tence, to the court’s ultimate findings of fact and conclusions of law.” Id. at 1102. On direct appeal, we concluded that the district court had failed to comply with Jones and vacated Mosley’s sen- tence. United States v. Mosely, 31 F.4th 1332, 1334–36 (11th Cir. 2022). The district court resentenced Mosley, who eventually left prison on supervised release. But Mosley promptly ran afoul of the law and was charged with several state crimes. So, the district court revoked his supervised release and sentenced him to 24 months in prison to be followed by another year of supervised re- lease. Mosley now appeals from that sentence. He argues, among other things, that the district court—for a second time—failed to comply with Jones and that the district court failed to properly pro- vide him with the opportunity to allocute. After careful

1 Overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th

Cir. 1993) (en banc). USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 3 of 9

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consideration of the record, we agree with Mosley. We therefore vacate his sentence and remand for resentencing. I A Under Jones, the district court must “elicit fully articulated objections . . . to the court’s ultimate findings of fact and conclu- sions of law” after it “states its factual findings, applies the guide- lines, and imposes sentence.” 899 F.2d at 1102. 2 The purposes of a Jones colloquy are to elicit objections for appellate review and to limit the issues on appeal (or render an appeal unlikely) by giving the district court an opportunity to correct any errors. See Mosely, 31 F.4th at 1334; United States v. Holloway, 971 F.2d 675, 681 (11th Cir. 1992). “[T]he objection-elicitation requirement of Jones is ap- plicable to supervised release revocation proceedings.” United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). The Jones requirement is strict and longstanding. In Camp- bell, we explained that “this court has held that when the district court merely asks if there is ‘anything further?’ or ‘anything else?’ and neither party responds with objections, then the court has failed to elicit fully articulated objections and has therefore violated Jones.” 473 F.3d at 1348 (citing Holloway, 971 F.2d at 681; United States v. Snyder, 941 F.2d 1427, 1428 (11th Cir. 1991)). The facts in

2 We review de novo whether a district court has given a defendant the re-

quired opportunity to object. United States v. Carrasquillo, 4 F.4th 1265, 1271 (11th Cir. 2021). USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 4 of 9

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Campbell are illustrative. There, the district court informed the de- fendant of his right to appeal and then asked: “Is there anything further?” Id. In response, defense counsel “requested the court to recommend drug treatment and the Government said that it had nothing further.” Id. Under those circumstances, we held that the district court failed to follow Jones. Id. This case is just like Campbell. At Mosely’s revocation hear- ing, the district court generally asked the parties whether they had “[a]nything else” they wished to address—instead of specifically in- quiring as to whether the parties had any objections to the sentence imposed. See Campbell, 473 F.3d at 1348. The district court made this inquiry multiple times, but neither party responded with sub- stantive comments indicative of any understanding that the court’s general inquiries were meant to elicit objections. Cf. United States v. Ramsdale, 179 F.3d 1320, 1324 n.3 (11th Cir. 1999) (holding that a district court did satisfy Jones by asking “anything else,” but only because defense counsel stated an objection in response). Quite like in Campbell, here Mosley’s counsel responded to the “anything else” query by making various requests about the details of Mos- ley’s sentence: requesting placement in a particular prison, remind- ing the court about the possibility of time-served credit, and asking for clarification about curfew times. And, like in Campbell, “neither side raised a fully articulated objection.” 473 F.3d at 1348 (quota- tion marks omitted). We therefore conclude that the district court failed to comply with the Jones rule at Mosely’s revocation hearing. USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 5 of 9

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B A Jones violation does not per se require us to vacate and re- mand. A remand is unnecessary “when the record on appeal is suf- ficient to enable review”—in which case challenges are to be re- viewed as if they had been preserved below. Campbell, 473 F.3d at 1347. Thus, we have declined to vacate and remand, despite a Jones error, where the issue raised on appeal was a pure legal issue or the arguments were presented below. See United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006); United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991). Conversely, we have vacated and re- manded where the issue on appeal is factual or was not presented to the district court. See, e.g., Holloway, 971 F.2d at 681; United States v. Millwood, 961 F.2d 194, 195 (11th Cir. 1992); Snyder, 941 F.2d at 1428. Here, in addition to his Jones issue, Mosley argues (1) that the district court procedurally erred by failing to explain its imposed sentence; (2) that his sentence is substantively unreasonable; (3) that the court abused its discretion by imposing certain employ- ment, child support, and curfew provisions on his supervised re- lease; and (4) that the court didn’t provide him with the oppor- tunity to allocute at his revocation hearing. With respect to the first three of these arguments, we con- clude that—in the context of a Jones error—the record on appeal is not sufficient to enable review. The district court’s discussion of Mosley’s ultimate sentence is extremely limited; the only identifia- ble reasoning it provided for its 24-month sentence was a brief USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 6 of 9

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reference to Mosley’s considerable arrest record. Also, the district court merely listed its special supervised-release conditions. It pro- vided neither a discussion of the factual findings that supported the imposition of the curfew, child support, and employment provi- sions, nor an explanation as to why they comported with the nec- essary considerations. And, when Mosley’s counsel asked for the curfew times to be repeated, the only additional elaboration the court provided was that the midnight to 5:00 a.m. curfew was “very fair.” We therefore vacate and remand and do not now consider Mosley’s failure-to-explain, substantive reasonableness, and release conditions arguments. These shortcomings, if they exist, could be cured on remand—Mosley will have the opportunity to present his objections to the court’s factual and legal conclusions at a resen- tencing hearing. II The record is sufficient to review Mosley’s allocution argu- ment. “Allocution is the right of the defendant to make a final plea on his own behalf to the sentencer before the imposition of sen- tence.” United States v. George, 872 F.3d 1197, 1206 (11th Cir. 2017) (citation and quotation marks omitted). This right applies at revo- cation proceedings. United States v. Carruth, 528 F.3d 845, 846–47 (11th Cir. 2008). Before imposing a sentence, the district court must address the defendant and allow him to speak in mitigation of his sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii); see also Fed. R. Crim. P. 32.1(b)(2)(E) (providing that a defendant at a revocation hearing must be given the “opportunity to make a statement and present any information in mitigation”). We have clarified that “the right USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 7 of 9

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to allocute under Rule 32.1 is clearly not substantively different from the right to allocute under Rule 32.” Carruth, 528 F.3d at 847. Under either rule, a “court must personally extend to the defendant the right to allocution.” Id. Before we get to the substance of the allocution argument, a note on the standard of review. We’ve never held that a challenge to the denial of the right of allocution is preserved due to a Jones error. But there’s no need to decide whether or not plain-error re- view applies here, because Mosley’s argument succeeds even on that exacting standard. To reverse under plain-error review, we must conclude that: “(1) an error occurred, (2) the error was plain, (3) the error affected substantial rights in that it was prejudicial and not harmless, and (4) the error seriously affected the fairness, integ- rity, or public reputation of a judicial proceeding.” United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). We have held that it is plain error when a district court fails to personally address the defendant regarding his right to allocu- tion, and instead addresses only the defendant’s attorney. See Perez, 661 F.3d at 583–86; Carruth, 528 F.3d at 847. For example, in Perez, before sentencing the defendant, “the district court asked, ‘[w]ill the defendant be allocuting[?]’” 661 F.3d at 584 (alteration in orig- inal). Then the defendant “and his attorney conferred privately for an unspecified time period.” Id. After conferring, “[d]efense coun- sel then stated: ‘No, Your Honor. He doesn’t wish to address the Court.’” Id. We determined that, although the record was “cold” and there was no indication whether the court was “direct[ing] its USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 8 of 9

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question to the defendant, his attorney, or both, [the defendant] may reasonably have viewed the statement—given its wording—as a question directed only to his attorney.” Id. On those facts, we held that the district court had deprived the defendant of his right to allocute. Id. So too here. Despite referencing Mosley’s ability to speak multiple times during the revocation hearing, the district court never seems to have taken the crucial step of personally addressing Mosley when discussing his right, instead directing its inquiries to- ward both defense counsel and (in the third person) “Mr. Mosley.” Here, at two points in the revocation hearing, the district did per- sonally address Mosley and elicit a response. See Tr. Revocation of Supervised Release Final H’rg at 4:1–2, ECF No. 148 (“Mr. Mosley, how are you pleading; guilty or not guilty?”); id. at 12:15–17 (“Mr. Mosley, you are clearheaded today and free from any alcohol or drugs or mental disturbances that would impair your free think- ing?”). But at the point where the district court perhaps meant to allow Mosley to allocute, in context the court appears to have ad- dressed defense counsel, not Mosley. See id. at 10:5 (“Does Mr. Mos- ley wish to address the Court?”); cf. Perez, 661 F.3d at 584 (con- trasting “comments the court [made] previously [when] ad- dress[ing] . . . the defendant personally” with the “formal legal lan- guage” used when the district court inquired about allocution). So, we agree with Mosley that the district court failed to “leave no room for doubt that the defendant has been issued a personal invi- tation to speak prior to sentencing.” Green v. United States, 365 U.S. 301, 305 (1961) (emphasis added). USCA11 Case: 23-13849 Document: 41-1 Date Filed: 02/11/2025 Page: 9 of 9

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The other plain error considerations are satisfied. First, the error was plain. As we said in Perez, “Eleventh Circuit precedent clearly establishes that statements made to counsel do not ade- quately protect the defendant's right of allocution.” 661 F.3d at 585. Second, the error affected Mosley’s substantial rights because “the possibility of a lower sentence exist[ed].” Id. at 586; see Carruth, 528 F.3d at 847 n.4. The district court here sentenced Mosley to the statutory maximum—24 months. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a). And third, “denial of the right to allocute af- fects the fairness, integrity, and public reputation of judicial pro- ceedings.” Perez, 661 F.3d at 586. Thus, the district court’s failure to issue a personal invitation to Mosley to allocute was plain error. III For the foregoing reasons, we hold, first, that the district court failed to comply with Jones by expressly eliciting objections at Mosley’s revocation hearing. And, second, we hold that the district court committed plain error by failing to issue a personal invitation to Mosley to allocute. VACATED AND REMANDED.