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United States of America v. Delores Mosley

March 6, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
DELORES MOSLEY, APPELLANT.



Appeal from the United States District Court for the Northern District of Iowa.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: October 20, 2011

Before BYE, SMITH, and COLLOTON, Circuit Judges.

Delores Mosley pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, when calculating the advisory sentencing guideline range, the district court applied a four-*fn1 level increase pursuant to USSG § 2K2.1(b)(6) on the ground that Mosley possessed a firearm in connection with the state felony offense of "going armed with intent." Iowa Code § 708.8. The court also imposed, as a special condition of Mosley's supervised release, a prohibition on the use of alcohol and the frequenting of bars, taverns, and other establishments whose primary source of income is derived from the sale of alcohol. Mosley challenges on appeal both the four-level enhancement and the special condition relating to alcohol. We affirm.

I.

On November 15, 2009, at the behest of her fiance, Stephany Hoskins walked outside her Waterloo, Iowa, home and discovered her sister, Delores Mosley. Mosley was in tears, declaring "I'm going to kill her" and "I'm tired of this and can't nobody talk me out of this." Hoskins returned inside and telephoned their mother, who told her that Mosley was distraught. Mosley had learned that her granddaughter had caught her hair on fire while Erica, the girl's mother and Mosley's daughter, was at home passed out.

Hoskins contacted Waterloo law enforcement authorities to inform them of Mosley's threats against Erica and of the possibility that Mosley was carrying a firearm. Officers arrived at Hoskins's home, but Mosley was gone. Responding to an update from dispatch on Mosley's location, the officers continued to a nearby address, the home of Mosley's niece, where they found Mosley sitting on the front steps, crying.

The officers approached Mosley and asked her if she had a gun. She answered that she had one in her front coat pocket but was unsure whether it was loaded. The officers recovered a .32 caliber revolver from Mosley's pocket, and determined that it was loaded with three bullets. Mosley admitted that she had no permit for the gun, and claimed that she had found it three weeks earlier while raking leaves in her backyard. She also expressed frustration with her daughter's neglectful parenting and told the officers that "she had brought her daughter into the world and she could take her out."

Mosley was arrested on July 28, 2010. She had sustained a prior felony conviction in 1989 for second degree theft, and she eventually pleaded guilty in this case to unlawful possession of a firearm as a previously convicted felon. 18 U.S.C. § 922(g). In calculating the advisory guideline sentencing range, the district court found that Mosley was subject to a four-level increase under USSG § 2K2.1(b)(6)(B), because she had possessed a firearm "in connection with another felony offense." Specifically, the court found that Mosley had violated Iowa Code § 708.8, which provides that "[a] person who goes armed with any dangerous weapon with the intent to use without justification such weapon against the person of another" commits the felony of "going armed with intent." The increase yielded an advisory guideline range of 18 to 24 months, and the court sentenced Mosley to a term of 18 months' imprisonment, a $100 special assessment, and two years of supervised release. The district court also ordered several special conditions on Mosley's supervised release. The second of these conditions prohibits Mosley from using alcohol or entering bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.

II.

Mosley first argues that the district court committed procedural error in calculating her advisory guideline range. She challenges the four-level increase under USSG § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. We review this finding for clear error, United States v. Bates, 614 F.3d 490, 493 (8th Cir. 2010), and consider whether Mosley's actions supported the district court's finding that she committed going armed with intent under Iowa Code § 708.8.

In United States v. Gomez-Hernandez, 300 F.3d 974, 980 (8th Cir. 2002), this court, applying State v. Slayton, 417 N.W.2d 432 (Iowa 1987), determined that Iowa Code § 708.8 "requires proof that the defendant carried a dangerous weapon with the specific intent to use it to inflict serious injury." Gomez-Hernandez, 300 F.3d at 980. Mosley asserts that her conduct did not violate § 708.8 because she lacked "the specific intent to use" her gun against her daughter.

The district court did not clearly err in finding that Mosley acted with the requisite intent. Although Mosley's conduct was not as extreme as that in Slayton, where the defendant chased after his mother with a loaded shotgun until his father subdued him with a club, 417 N.W.2d at 435, the district court had sufficient grounds to find that Mosley carried a handgun with specific intent to use the weapon against her daughter. Upset at her daughter and carrying a loaded revolver, Mosley announced, "I'm going to kill her," and, "I'm tired of this and can't nobody talk me out of this." By the time the officers found her, Mosley had traveled a mile from her sister's home to a location only a block and a half away from her daughter's residence. She also told police that "she had brought her ...


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