United States v. Mosley

* District Judge of the Western District of Louisiana, sitting by
designation.
**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should not be published and is not precedent except under the limited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.
1 See 18 U.S.C. § 924(c)(1)(A).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20629
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY BATISTE MOSLEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-99-CR-609-1)
July 31, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE,*
District Judge.
PER CURIAM:**
Defendant Gregory Batiste Mosley challenges his ten-year
sentence for his conviction of using and carrying a firearm during
and in relation to a crime of violence (bank robbery).1 He argues
that the use-of-a-firearm statute under which he was convicted, 18

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2 See 18 U.S.C. § 924(c)(1)(A)(I)-(iii).
3 See 18 U.S.C. § 924(c)(1)(A). The Sentencing Guidelines require that the
defendant be given the minimum statutory sentence when convicted under section
924(c)(1)(A). See U.S.S.G. 2K2.4(a)(2) (2000).
2
U.S.C. section 924(c)(1)(A), creates three separate offenses, the
elements of which must be stated in the indictment and proved to a
jury. Each offense would have one distinct element: using and
carrying a firearm, brandishing a firearm, or discharge of a
firearm.2
The district court, however, treated these three factors as
sentencing factors rather that elements of distinct crimes. Thus,
although Mosley pleaded guilty only to using and carrying a firearm
during and in relation to a bank robbery, the district judge
sentenced him after finding that a firearm was discharged during
the course of the bank robbery. The finding that a firearm was
discharged raised Mosley’s sentence from five years—the minimum
statutory sentence for using or carrying a firearm—to ten years—the
minimum statutory sentence for discharge of a firearm.3 Before
pleading guilty, however, Mosley had been informed by the district
court that the statutory minimum sentence was five years.
We must reject Mosley’s challenge to the district court’s
treatment of discharge of a firearm as a sentencing factor. This
circuit has recently joined our sister circuits in holding that
brandishing a firearm and discharging a firearm are sentencing

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4 See United States v. Barton, 2001 WL 765829, *6-8 (5th Cir. July 9,
2001).
5 See United States v. Still, 102 F.3d 118, 122 (5th Cir. 1996).
3
factors rather than elements.4 Thus, the district court did not
err in sentencing Mosley to a ten-year sentence on his firearm
count.
We agree with Mosley, however, that the district court erred
in conducting the plea colloquy by failing to inform Mosley of the
correct statutory minimum sentence.5 The government does not
contest Mosley’s claim that the error requires vacatur of the
guilty plea.
We VACATE Mosley’s plea of guilty to using and carrying a
firearm during and in relation to a crime of violence and REMAND
this case to the district court.

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