United States of America v. Matthew Mosby

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2025
Decided May 28, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
DIANE S. SYKES, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-1851
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW MOSBY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:22CR00145-001
Matthew P. Brookman,
Judge.
O R D E R
Matthew Mosby pleaded guilty to possessing a firearm as a felon in violation of
18 U.S.C. § 922(g)(1). The district court sentenced him to seven years in prison, above
the range recommended by the Sentencing Guidelines. Mosby appealed, but his
appointed counsel moved to withdraw and filed an Anders brief explaining that the
appeal is frivolous. Anders v. California, 386 U.S. 738, 744 (1967). Mosby did not respond.
7TH CIR. R. 51(b). In January 2025 we suspended the appeal pending a decision in United
States v. Prince, 171 F.4th 1009 (7th Cir. 2026), regarding the validity of § 922(g)(1) under
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1

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No. 24-1851 Page 2
the Second Amendment. Our opinion in Prince has now been issued, and counsel filed a
position statement on its relevance to this appeal.
Counsel’s Anders brief explains the nature of the case and addresses the issues
that this kind of appeal might be expected to involve. Because the analysis appears
thorough, we limit our review to the subjects counsel discusses. United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Mosby’s § 922(g)(1) conviction arises from a domestic dispute—more specifically,
an argument with a former girlfriend who was trying to retrieve items of property she
had left at his house. During the encounter Mosby became increasingly angry, and as
his former girlfriend was pulling her car out of his driveway to leave the premises, he
fired a gun in the air. Police responding to the scene found two handguns inside
vehicles on or near Mosby’s property; Mosby admitted to possessing the handguns. He
also admitted that he fired his gun in the air while his former girlfriend was in her car
leaving his house. Because Mosby’s criminal record includes multiple felonies, a grand
jury charged him with unlawfully possessing a firearm as a felon in violation of
§ 922(g)(1).
Mosby pleaded guilty, and a probation officer prepared a presentence
investigation report. To calculate the Guidelines sentencing range, the probation officer
started with a base offense level of 24 based on Mosby’s prior state convictions for a
crime of violence (domestic battery resulting in moderate bodily injury) and a
controlled substance offense (dealing hydrocodone). U.S.S.G. § 2K2.1(a)(2). The
probation officer added four offense levels because Mosby possessed a firearm in
connection with another felony—namely, criminal recklessness with a deadly weapon.
Id. § 2K2.1(b)(6)(B). With a three-level reduction for acceptance of responsibility, id.
§ 3E1.1, the final offense level was 25, which when combined with Mosby’s criminal
history category of IV, yielded an advisory sentencing range of 84 to 105 months in
prison.
Mosby objected to the four-level enhancement under § 2K2.1(b)(6)(B), arguing
that he did not use the gun in connection with the offense of criminal recklessness
because he did not put anyone at substantial risk of harm. He otherwise agreed with the
recommendations in the PSR.
At sentencing the district judge sustained Mosby’s objection and removed the
four-level enhancement, which lowered the total offense level to 21. With that
reduction, the final Guidelines range was 57 to 71 months in prison. The judge then

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No. 24-1851 Page 3
considered the sentencing factors under 18 U.S.C. § 3553(a), emphasizing the
seriousness of the offense, the need to protect the public, and Mosby’s history of
domestic violence and drug addiction. The judge accordingly imposed an above-range
sentence of 84 months in prison, explaining that the Guidelines did not adequately
account for Mosby’s pattern of domestic violence or the danger he created when he
fired the gun.
In his Anders brief, counsel first tells us that he consulted with Mosby about the
risks and benefits of challenging his guilty plea and confirmed that Mosby does not
wish to do so. Counsel therefore appropriately omits discussion of the validity of the
plea. United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
Counsel next considers but rejects as frivolous any argument that the district
court erred by treating Mosby’s prior felony convictions as predicate convictions under
§ 2K2.1(a)(2). A base offense level of 24 applies if the defendant committed the offense
after “sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense.” § 2K2.1(a)(2). The PSR treated Mosby’s 2013 state
conviction for dealing in hydrocodone as a predicate controlled substance offense and
his 2019 state conviction for domestic battery as a predicate crime of violence. Although
the record does not specify the statutes underlying these convictions, Mosby did not
object to counting them as § 2K2.1(a)(2) predicates, and there is no basis to conclude
that the district judge committed plain error by doing so. United States v. LeFlore, 927
F.3d 472, 475 (7th Cir. 2019).
Counsel also rightly rejects as frivolous any argument that the above-Guidelines
sentence of 84 months in prison is substantively unreasonable. We will uphold an
above-Guidelines sentence if the district court sufficiently justified it based on the
sentencing factors in § 3553(a). United States v. Moultrie, 975 F.3d 655, 661 (7th Cir. 2020).
A judge may also consider whether the Guidelines calculations adequately account for
any aggravating factors. Id. at 662. Here, the judge discussed the seriousness of the
offense, particularly the danger Mosby created by shooting the gun, and the need to
protect the public from further crimes of domestic violence. The judge also explained
that these aggravating factors were not adequately accounted for by the Guidelines.
Finally, counsel considers whether Mosby could challenge his conviction under
the Second Amendment and rightly concludes that any such challenge would be
frivolous. We recently held that § 922(g)(1) is not facially unconstitutional. Prince,
171 F.4th at 1011–12. And although we reserved ruling on whether a nondangerous
felon could raise an as-applied Second Amendment challenge to a § 922(g)(1) charge,

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No. 24-1851 Page 4
id.; United States v. Watson, 171 F.4th 1012, 1024–25 (7th Cir. 2026), it would be frivolous
for Mosby to raise such a challenge based on his criminal history of domestic battery
and drug dealing.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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