United States of America v. Mosezell Jones

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2024
Decided April 3, 2024
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-2459
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MOSEZELL JONES,
Defendant-Appellant.
Appeal from the
United States District Court for the
Southern District of Illinois.
No. 21-CR-30154-SPM
Stephen P. McGlynn,
Judge.
O R D E R
Mosezell Jones pleaded guilty to possessing methamphetamine with the intent to
distribute, see 21 U.S.C. § 841(a)(1), and possessing a firearm as a felon, see 18 U.S.C.
§ 922(g)(1). The district judge sentenced Jones to a within-Guidelines sentence of
192 months in prison and 5 years of supervised release. Jones filed a notice of appeal,
but his appointed lawyer believes that the appeal is frivolous and seeks to withdraw
under Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of
the case and addresses potential issues that an appeal of this kind would typically
involve. Jones did not respond to counsel’s motion to withdraw. See 7TH C IR . R. 51(b).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2459 Page 2
Because counsel’s analysis appears thorough, we limit our review to the subjects
identified in the brief. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Over two weeks in June 2021 in East St. Louis, Illinois, Jones sold ecstasy pills
containing methamphetamine to a confidential source three different times. After the
third sale, law enforcement obtained a warrant to search Jones’s home where they
found over 140 grams of methamphetamine, ecstasy, other drugs and drug
paraphernalia, and three firearms. Jones admitted that he was not permitted to own any
firearms because he had previously been convicted of a felony. Based on the search,
Jones was charged with possessing methamphetamine with intent to distribute,
see § 841(a)(1), and possessing a firearm as a felon, see § 922(g)(1). He pleaded guilty to
the charges without a plea agreement.
At the sentencing hearing, the judge adopted the recommendations in the
presentence investigation report, which grouped the two charges together to yield a
single Guidelines range. See U.S.S.G. § 3D1.2(c). Jones’s base offense level was 26
because his firearm offense involved a semiautomatic firearm that could accept a large
capacity magazine and because he had two prior felony convictions for a crime of
violence (armed robbery). Id. § 2K2.1(a)(1). He received a two-level increase for
possessing three firearms, id. § 2K2.1(b)(1)(A), and a four-level increase for possessing
those firearms in connection with a drug charge, id. § 2K2.1(b)(6)(B), resulting in an
adjusted offense level of 32. That level was enhanced to 34 for being a career offender
(based on two armed-robbery convictions). Id. § 4B1.1. With a three-level downward
adjustment for acceptance of responsibility, id. § 3E1.1, Jones had a final offense level of
31. His criminal history category was VI because he qualified as a career offender. Id.
§ 4B1.1(b). The advisory Sentencing Guidelines range was 188 to 235 months in prison
with 4 to 5 years of supervised release on the drug count and 120 months in prison (the
statutory maximum) with 1 to 3 years of supervised release on the firearm count. See id.
§ 5D1.2(c); 21 U.S.C. § 841(b)(1)(B); 18 U.S.C. § 924(a)(2) (2021) (amended 2022).
Jones asked the judge to impose a below-Guidelines sentence, but the judge
disagreed. Jones first argued that the government should have conducted a purity test
on the methamphetamine mixture, asserting that perhaps the pills contained very little
methamphetamine. The government explained that it could not do so because the State
of Illinois had already tested the drugs for purity. Next, he argued that he was only a
street-level dealer, that he was unlikely to commit a violent crime again, and that his
age and health concerns meant a within-Guidelines sentence could be a life sentence for
him. But the judge determined that the seriousness of Jones’s crime (he possessed a

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No. 23-2459 Page 3
substantial quantity of drugs, and the pills were colorful and thus could attract children
as buyers or consumers), the need to protect the public, and Jones’s likelihood of selling
drugs again warranted a within-Guidelines sentence. The judge sentenced Jones to
192 months in prison (near the bottom of the range) with 5 years of supervised release
on the drug count and 120 months in prison with 3 years of supervised release on the
firearm count, to run concurrently.
Counsel informs us that Jones wishes to challenge only the length of his sentence
and not his conviction. Counsel thus properly refrains from discussing the validity of
the guilty plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012);
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first considers whether Jones could plausibly argue that the judge
miscalculated his Guidelines range but rightly concludes that he could not. One of
Jones’s guns was a semiautomatic firearm that could accept a large capacity magazine,
and his two armed-robbery convictions were crimes of violence, so his base offense
level was properly calculated at 26. See § 2K2.1(a)(1). Jones stipulated to possessing
three firearms, leading to a two-level increase. See § 2K2.1(b)(1)(A). And he possessed
those firearms in connection with his drug charge, causing a further four-level increase.
See § 2K2.1(b)(6)(B). Jones’s two convictions for armed robbery meant that he was a
career offender and subject to an adjusted offense level of 34, see § 4B1.1, and a criminal
history category of VI, see § 4B1.1(b). Jones did not object to any of these calculations at
sentencing, and no plausible argument could show plain error.
Next, counsel considers whether Jones could argue that the judge erred by not
ordering a purity test of the methamphetamine mixture but correctly concludes that he
could not. Jones asked the government to test the purity of the methamphetamine to
show that his pills contained a very low percentage of the drug. And although the
purity of methamphetamine can matter if the defendant is charged with possessing
“ice,” a purer form of methamphetamine, see United States v. Carnell, 972 F.3d 932, 939–
41 (7th Cir. 2020), purity does not matter if the defendant is charged with possessing a
methamphetamine mixture because the weight of the entire mixture, no matter how
pure, is used to calculate an advisory Guidelines sentence, see U.S.S.G. § 2D1.1(c) n.(B).
Jones was charged with possessing a methamphetamine mixture, so its purity could not
affect his Guidelines calculation. Nor could Jones reasonably argue that a purity test
might have altered how the judge weighed the § 3553 factors because the judge focused
on the pills’ colorful attractiveness to children, not any aspect of their purity.

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No. 23-2459 Page 4
Counsel also correctly observes that a challenge to the substantive
reasonableness of Jones’s prison term would be frivolous. His within-Guidelines
sentence of 192 months is “presumed reasonable against a defendant’s challenge that it
is too high.” United States v. De La Torre, 940 F.3d 938, 953 (7th Cir. 2019) (quotation
marks omitted). This presumption can be rebutted only by showing that the sentence
does not reasonably comport with the § 3553(a) factors. Id. But Jones could not plausibly
make that contention. Counsel’s brief (and our own review of the judge’s consideration
of the § 3553(a) factors) shows that the judge reasonably balanced the seriousness of the
offense, the need for specific deterrence, and the need to protect the public against
Jones’s mitigating arguments.
Finally, counsel considers the possibility of a challenge to the constitutionality of
§ 922(g)(1) in the aftermath of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1
(2022). In Bruen the Supreme Court held that the Second Amendment requires the
government to prove that firearm statutes like § 922(g)(1) are “consistent with this
Nation’s historical tradition of firearm regulation.” 597 U.S. at 17. Because Jones did not
challenge the statute’s constitutionality in the district court, our review would be for
plain error, meaning that the error must be “clear and uncontroverted at the time of
appeal.” United States v. Miles, 86 F.4th 734, 740 (7th Cir. 2023) (quotation marks
omitted). We recently acknowledged that at this point the historical assessment on the
constitutionality of § 922(g)(1) is inconclusive. See Atkinson v. Garland, 70 F.4th 1018,
1022 (7th Cir. 2023) (remanding to the district court to conduct a “proper, fulsome
analysis of the historical tradition supporting § 922(g)(1)” in light of Bruen). Because the
law is unsettled, any error today would not be plain. See Miles, 86 F.4th at 740–41.
We acknowledge that we have stayed some direct appeals until the issue of the
constitutionality of § 922(g) is answered. But a stay is not necessary here because Jones
has a longer concurrent sentence for his methamphetamine conviction. We have already
determined that he could not challenge that longer concurrent sentence, and counsel
has not suggested why, in light of this longer concurrent sentence, the Bruen issue
remains relevant. Cf. United States v. Leija-Sanchez, 820 F.3d 899, 902 (7th Cir. 2016)
(holding that the existence of concurrent sentences justifies a refusal to overturn plain
error in one sentence).
We thus GRANT counsel’s motion to withdraw and DISMISS the appeal.

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