United States v. William Mefford

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1592
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Delores Mosley, *
*
Appellant. *
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Submitted: October 20, 2011
Filed: March 6, 2012
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Before BYE, SMITH, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
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-1
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
The Honorable Linda R. Reade, Chief Judge, United States District Court for1
the Northern District of Iowa.

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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 fiancé, 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.”
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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
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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 daughter into the world and
she could take her out.” In light of these circumstances, it was not clear error for the
district court to conclude that Mosley exhibited specific intent to inflict serious
injury.
III.
Mosley also contests the special condition of supervised release that she is
prohibited from the use of alcohol and from entering bars, taverns, or other
establishments whose primary source of income is derived from the sale of alcohol.
Sentencing courts have broad discretion in setting the terms of supervised release, and
we review the imposition of special conditions for abuse of that discretion. United
States v. Forde, 664 F.3d 1219, 1222 (8th Cir. 2012). Special conditions must be
“reasonably related” to the nature and circumstances of the offense and the sentencing
factors in 18 U.S.C. § 3553(a), and the conditions may not impose a “greater
deprivation of liberty than is reasonably necessary” to serve the purposes of
sentencing. 18 U.S.C. § 3583(d).
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The presentence report describes Mosley’s history of substance abuse. It
reflects Mosley’s report to the probation office that she used marijuana daily for ten
years from 1988 to 1998. She abused crack cocaine daily for eight months in 1990
at the age of 30. She underwent inpatient substance abuse treatment in November and
December 1988 and participated in outpatient treatment for approximately two years
thereafter. Mosley reported that her last use of crack cocaine was in 1990. She
described herself as a “social drinker for special occasions only,” and estimated that
her last use of alcohol was two weeks before her presentence interview with the
probation office. She was convicted in 1998, however, of operating a motor vehicle
while intoxicated in May 1997. At the time of her arrest in 1997, Mosley failed to
yield to law enforcement for approximately three miles and could not walk or stand
when finally apprehended.
The record also shows a history of mental health issues. In 1991, Mosley
attempted suicide by overdose on sleeping pills and was diagnosed as suffering from
a major depressive order. In 2003, she was evaluated at a mental health center and
diagnosed with “depressive disorder, anxiety disorder, cannabis use, and history of
cocaine abuse.” She has been prescribed anti-depressant medications since 2001, and
was prescribed the anti-depressant medications fluoexetine (Prozac) and amitriptyline
at the time of sentencing.
In overruling Mosley’s objection to the special condition, the district court
explained that Mosley “has a drug and alcohol past, with the use of a number of
illegal substances,” observed that “[t]here is a cross-addiction” between drugs and
alcohol, and cited Mosley’s history of “mental health issues.” The court advised
Mosley that if she feels that she has “things under control” when she is released from
prison, then “she can always talk to her probation officer and see if those can be
modified or ask for a modification.”
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In challenging the district court’s ruling, Mosley relies principally on two
decisions of this court from the 1990s that vacated special conditions prohibiting the
use of alcohol. In United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), the
court vacated the condition for a defendant convicted of wire fraud, citing the absence
of any finding that alcohol was a contributing cause of the crime or that the defendant
needed any substance abuse rehabilitation. Id. at 1293. In United States v. Bass, 121
F.3d 1218 (8th Cir. 1997), the court vacated a prohibition on alcohol use for a
defendant convicted of drug trafficking, even though the defendant smoked marijuana
twice per week, because there was no evidence that he was “drug dependent,” and the
district court had “simply assume[d] that [the defendant] would as a matter of course
replace alcohol for marijuana.” Id. at 1224.
The precedential force of Bass and Prendergast is limited. In United States v.
Behler, 187 F.3d 772 (8th Cir. 1999), this court upheld an alcohol ban for a drug
trafficking defendant who had abused drugs for twenty years, even though he had
discontinued drug use approximately eight or nine years before sentencing, where the
district court received evidence from the National Institute on Drug Abuse that “the
use of any intoxicants, including alcohol, limits a recovering person’s ability to
maintain a drug-free lifestyle.” Id. at 779 (internal quotation omitted). This court
explained that Prendergast and Bass limit a district court’s discretion “only insofar
as the court imposes limitations on the basis of pure speculation or assumptions
unrelated to the rehabilitative process.” Id.; accord Forde, 664 F.3d at 1223; United
States v. Crose, 284 F.3d 911, 913 (8th Cir. 2002) (per curiam). Just recently, we
remarked that “the sentencing landscape has changed substantially since Bass,”
because that decision “predates the Supreme Court’s series of sentencing cases
emphasizing a sentencing court’s broad discretion in crafting an individualized
sentence.” Forde, 664 F.3d at 1223. Although Bass purported to apply abuse-of-
discretion review, its refusal to accept the district court’s conclusions that a defendant
who used marijuana twice per week for eight years was “drug dependent,” and that
such a person can have a tendency to substitute alcohol for marijuana if the latter is
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unavailable, functioned more like de novo review. See Gall v. United States, 552
U.S. 38, 56 (2007) (“Although the Court of Appeals correctly stated that the
appropriate standard of review was abuse of discretion, it engaged in an analysis that
more closely resembled de novo review of the facts presented . . . .”).
Applying the deferential abuse-of-discretion standard that applies to all
sentencing decisions, id. at 52, we conclude that the combination of substance abuse
and mental health histories appearing in Mosley’s record are sufficient to justify the
district court’s imposition of a condition prohibiting the use of alcohol. Mosley had
a documented history of abusing alcohol and crack cocaine, albeit more than a decade
before the offense of conviction. She also used marijuana daily for ten years, and
while she reported no drug use since 1998, the district court had reason to be
skeptical: a mental health evaluation in 2003 diagnosed “cannabis abuse” along with
“history of cocaine abuse.” As in Behler, it was reasonable for the district court to
treat Mosley as a recovering drug user, and our cases permit a sentencing court to
recognize that “the use of alcohol limits a recovering person’s ability to maintain a
drug-free lifestyle.” Forde, 664 F.3d at 1224 (internal quotations omitted); accord
Crose, 284 F.3d at 913; Behler, 187 F.3d at 779. On top of that, Mosley was
diagnosed with depressive disorders in 1991 and 2003, attempted suicide in 1991, and
had been prescribed anti-depressant medications from 2003 through sentencing.
Allowing for some use of “judicial common sense,” Forde, 664 F.3d at 1224 (internal
quotation omitted), we believe the district court reasonably concluded that mixing a
depressant like alcohol with a mental health condition of depression and anti-
depressant medications may well interfere with Mosley’s rehabilitation upon release
from custody. See United States v. Sales, 476 F.3d 732, 735 (9th Cir. 2007)
(upholding prohibition on consuming alcohol, although defendant had no history of
alcohol abuse and offense did not involve alcohol, where the record showed a history
of substance abuse and depression); see also Amitriptyline Concise Monograph,
Physicians’ Desk Reference, PDR.net, http://www.pdr.net/drugpages/
concisemonograph.aspx?concise=119 (last visited Feb. 21, 2012) (identifying
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amitriptyline, one of Mosley’s medications, as a “tricyclic antidepressant,” and
explaining that amitriptyline “[m]ay enhance response to alcohol . . . and other CNS
depressants”); Purkey v. Green, 28 F. App’x 736, 742 n.4 (10th Cir. 2001) (taking
judicial notice of drug information from Physicians’ Desk Reference).
As noted, the district court advised Mosley that she could seek modification of
the conditions while on supervised release. We have no reason to doubt that the court
would give such a motion appropriate consideration if Mosley’s mental health and
substance abuse are “under control.”
* * *
The judgment of the district court is affirmed.
BYE, Circuit Judge, concurring in part and dissenting in part.
I agree the district court did not commit a procedural error in calculating
Mosley's advisory guideline range. I disagree, however, with the majority's
conclusion the district court did not abuse its discretion in imposing a special
condition of supervised release prohibiting Mosley from using any alcohol and from
entering bars, taverns, or other establishments whose primary source of income is
derived from the sale of alcohol. Therefore, I respectfully dissent.
We recently observed our cases reviewing special conditions of supervised
release imposing complete bans on alcohol "have yielded mix results." United States
v. Simons, 614 F.3d 475, 480 (8th Cir. 2010). "In general, we have upheld such bans
for defendants with substance-abuse problems." Id. We have reversed such bans,
however, for defendants whose "history or crime of conviction did not support a
complete ban on alcohol." Id. The record here indicates alcohol did not play a role
in Mosley's crime of conviction. The district court acknowledged as much by stating
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it had no information "alcohol played any role in [Mosley's] offense." Sentencing Tr.
at 27. The question thus becomes whether Mosley's history justifies the district
court's prohibition against the use of alcohol and the entering of bars or taverns. I
cannot say it does.
The majority first asserts Mosley's "documented history of abusing alcohol"
weighs in favor of upholding the district court's total ban on alcohol. See ante, at p.
8. The record, however, shows otherwise. The record contains exactly two
references to alcohol, neither of which amounts to a history of alcohol abuse. The
record shows Mosley described herself as a "social drinker for special occasions
only" and stated she first consumed alcohol at age twenty five. PSR, at ¶ 49. Surely,
the majority is not equating "social drinking" with "a documented history of abusing
alcohol." Thus, the only other reference that could possibly support the majority's
statement is Mosley's 1998 conviction for driving while intoxicated. But a thirteen-2
year-old, isolated conviction, which did not even count toward the computation of
Mosley's criminal history points, hardly amounts to a "history of abusing alcohol,"
and in the absence of any other evidence indicating a pattern of alcohol abuse, the
record does not support the district court's finding Mosley has an "alcoholic past."
Sentencing Tr. at 31.
In concluding the record justifies a total ban on alcohol, including a ban on
entering bars or taverns, the majority also relies on Mosley's history of substance
abuse. And to be sure, Mosley admitted to using marijuana daily for ten years, from
1988 to 1998, and to using crack cocaine for eight months in 1990. Mosley's last
reported use of marijuana, however, was over a decade ago and her last use of crack
cocaine was over twenty years before the sentencing hearing in this case. Despite this
According to the PSR, Mosley's vehicle was stopped on May 18, 1997 after2
Mosley failed to yield to law enforcement. ¶ 32. The complaint indicated she
admitted to consuming alcohol and failed the administered field sobriety tests, but
refused to submit to chemical testing. Id.
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temporal gap, the majority concludes the district court could reasonably prohibit
Mosley from using alcohol and entering bars or taverns for the purpose of ensuring
Mosley continues to be drug-free.
Citing to United States v. Behler, 187 F.3d 772 (8th Cir. 1999), the majority
states the district court was justified in imposing a total ban on alcohol, even though
Mosley stopped using illegal substances over a decade ago. But as the majority itself
notes, the evidence before the district court in Behler was different from the record
evidence in this case. In Behler, the district court received a sentencing
recommendation from the probation officer, indicating the use of alcohol would limit
the defendant's ability "to maintain a drug-free lifestyle." Id. at 779. Moreover, the
probation officer's recommendation was based on data from the National Institute on
Drug Abuse, explaining "the use of any intoxicants, including alcohol, limits a
recovering person's ability to maintain a drug-free lifestyle." Id. The record further
established "any use of alcohol is inconsistent with the treatment philosophy of most
substance abuse recovery programs nationwide." Id. Based on the evidence before
the district court, we upheld the total ban on alcohol, noting the district court had
before it "the necessary foundation for determining that any alcohol use would hinder
the defendant's rehabilitation process." Id.
No such foundation is present here. Rather, the district court's decision to
impose a total ban on alcohol is "based on nothing more than an assumption."
Compare id. (upholding a total ban on alcohol where the evidence before the district
court established the defendant was drug dependent), with United States v. Bass, 121
F.3d 1218, 1223-24 (8th Cir. 1997) (reversing a total ban on alcohol where there was
no evidence the defendant was drug dependent and the district court "simply
assume[d] that [the defendant] would as a matter of course replace alcohol for
marijuana"). As articulated by the district court at sentencing, the court's decision to
impose the total ban on alcohol was based on the following:
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Well, [Mosley] has a drug and alcohol past, with the use of a number of
illegal substances. There is a cross-addiction, and so I'm going to stick
by those special assessments – or those special conditions of her
supervised release. I think it would be well for her to obviously abide
by those unless overturned at the Circuit. Or if she feels like when she
comes out of prison that she's got things under control, she can always
talk to her probation officer and see if those can be modified or ask for
modification. She also has had mental health issues, and I think that she
should carefully consider whether or not to challenge those conditions.
I think she would do much better on supervision if she has those
additional resources available given her history.
Sentencing Tr. at 31.
The explanation given by the district court is precisely the type of pure
speculation we must not tolerate. The record before the court contained no evidence
establishing the possible effect of alcohol on a person who—it bears repeating—had
maintained a drug-free lifestyle for years. The record contained no evidence linking
alcohol to Mosley's specific mental health issues. Yet, despite the lack of such
evidence, the majority concludes the district court could reasonably determine a total
ban on alcohol was necessary.
Relying on our recent decision in United States v. Forde, 664 F.3d 1219 (8th
Cir. 2012), the majority asserts it is within the sentencing court's discretion "to
recognize that 'the use of alcohol limits a recovering person's ability to maintain a
drug-free lifestyle.'" Ante, at 7 (quoting Forde, 664 F.3d at 1224). Forde, however,
is factually distinguishable. Unlike the record here, the record before the district
court in Forde established the defendant was drug dependent. 664 F.3d at 1223. By
his own admission, the Forde defendant used marijuana daily for thirteen years—up
until the commission of the crime of conviction—and continued to abuse drugs even
after participating in a drug treatment program. Id. It was within this context that we
concluded the district court's finding cross addiction posed a threat to the defendant's
rehabilitation was not pure speculation. Id. at 1224. But unlike the defendant in
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Forde, Mosley last used marijuana over a decade ago and stopped using crack cocaine
in 1990—more than twenty years ago—after successfully completing an inpatient
drug treatment program. In fact, the PSR indicates that following her release from the
program, Mosley volunteered as a motivational, successful recovery speaker at the
treatment center. And in the absence of any record evidence rendering Mosley drug
dependent, I remain convinced the district court's determination cross addiction posed
a threat to Mosley's rehabilitation was based on nothing more than an assumption.
I also cannot agree the district court's reliance on Mosley's history of mental
health issues justifies the imposition of the special condition here. "Allowing for
some use of 'judicial common sense,'" the majority states, the district court could
reasonably conclude the use of alcohol may interfere with Mosley's rehabilitation
following her release. Ante, at 7 (quoting Forde, 664 F.3d at 1224). Ironically, the
majority then refers to Amitriptyline Concise Monograph, Physician's Desk
Reference, to explain the possible effect of alcohol on persons taking amitriptyline ,3
one of Mosley's prescribed medications. See ante, at 7-8. While such knowledge
may well be within the realms of a physician's common sense, I highly doubt it
qualifies as "judicial common sense." Again, the record contains no evidence linking
alcohol to Mosley's amitriptyline medication and the district court's reliance on
Mosley's mental health as a basis for prohibiting her from using alcohol and entering
bars or taverns is therefore pure speculation.
Finally, the majority omits the fact Mosley's standard conditions of supervised
release require her to "refrain from the excessive use of alcohol" and prohibit her
from purchasing, possessing, or using any controlled substance. It seems to me these
While the PSR indicates Mosley has been prescribed anti-depressant3
medications since 2001, it does not list the specific medications. PSR, at ¶ 48.
Rather, the PSR provides a general list of Mosley's current prescriptions, including
a prescription for 25 mg of Amitriptyline. Id. at ¶ 43. Nothing in the PSR indicates
Amitriptyline is an anti-depressant.
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requirements are sufficient to alleviate any concerns the district court might have had
about Mosley's past use of illegal substances or her ability to maintain a drug-free
lifestyle in the future. See, e.g., United States v. Walters, 643 F.3d 1077, 1080 n.2
(8th Cir. 2011) ("We note [the defendant] must still abide by all the standard
conditions of supervised release, which includes a restriction on any 'excessive use
of alcohol.'").
Based on the record, I would find the district court abused its discretion in
imposing a special condition of supervised release prohibiting Mosley from using any
alcohol and from entering bars, taverns, or other establishments whose primary source
of income is derived from the sale of alcohol. Therefore, I would vacate the condition
and remand for resentencing.
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