United States District Court, District of Columbia
For VERNARD A. MITCHELL, Defendant: Christopher Michael Davis, LEAD ATTORNEY, Mary Elizabeth Davis, DAVIS & DAVIS, Washington, DC.
For USA, Plaintiff: Carolyn K. Kolben, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Wanda J. Dixon, Wanda J. Dixon, ESQ., Largo, MD.
Emmet G. Sullivan, United States District Judge.
Pending before the Court is defendant Vernard Mitchell's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Because it appeared to the Court that Mr. Mitchell raised arguments for a reduction of sentence pursuant to 18 U.S.C. § 3582(c), the Court ordered the Government to address both statutory provisions in its response. In response, the Government moved to transfer the § 2255 claim, and opposed a sentence reduction pursuant to § 3582(c). Upon consideration of the record in this case, as well as the motions and opposition thereto, the Court will grant the Motion to Transfer Mr. Mitchell's § 2255 claim. To the extent that Mr. Mitchell has moved for a sentence reduction under § 3582(c), the motion will be DENIED.
On March 24, 2005, Mr. Mitchell was charged with unlawful possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2) (Count One); unlawful possession of 5 grams or more of cocaine base with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count Two); unlawful possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Three); unlawful possession of cannabis with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count Four); and using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count Five). See Presentencing Investigation Report (PSI) at 1, ECF No. 40. A jury trial commenced on March 8, 2006, before this Court. See Government's Mot. to Transfer at 2. The trial concluded on March 13, 2006, when the jury found Mr. Mitchell guilty on Counts one through
four, and not guilty on Count Five. Id. at 2-3.
Prior to sentencing, the United States Probation Office determined Mr. Mitchell's sentencing range under the relevant statutes and the United States Sentencing Guidelines. The Probation Office determined that the base offense level under Guideline § 2D1.1 was 28, because the offense involved the equivalency of at least 400 Kilograms but less than 700 Kilograms of marijuana. PSI ¶ 17 (citing U.S.S.G. § 2D1.1(a)(3) and (c)(6)). The Probation Office applied a two-level upward adjustment because the defendant was found to be in possession of two firearms that were related to the instant offense. PSI ¶ 18 (citing § 2D1.1(b)(1)). As a result, Mr. Mitchell's adjusted base offense level under the Guidelines was 30. PSI ¶ 22.
However, because Mr. Mitchell had two prior controlled substance felony offenses, the Probation Office was required by the Sentencing Guidelines to compare the guideline offense level of 30 with the applicable " career offender" offense level. Pursuant to chapter four of the Sentencing Guidelines, the Probation Office determined that the " career offender" offense level was 34. This was determined by applying the statutory maximum sentence for Mr. Mitchell's most serious offense (Count Two: Unlawful Possession with Intent to Distribute 5 grams or More of Cocaine Base under 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B)(iii)), which was 40 years, to the " career offender" table in Chapter Four of the Sentencing Guidelines. That table provides that for offenses that have a statutory maximum of 25 years or more, the offense level for a " career offender" is 34. U.S.S.G. § 4B1.1. Because Mr. Mitchell's " career offender" offense level (34) was higher than his applicable guideline offense level (30), the Probation Office determined that the " career offender" offense level was appropriate. PSI ¶ 25; see U.S.S.G. § 4B1.1(b) (if the " career offender" offense level is greater than the offense level otherwise applicable, the " career offender" offense level applies). The Probation Office then determined that Mr. Mitchell's criminal history category was VI. PSI ¶ 36. Accordingly, the applicable Guideline range for Mr. Mitchell was 262 to 327 months. PSI ¶ 69 (citing U.S.S.G. § 5(A)).
On March 30, 2007, Mr. Mitchell was sentenced to 120 months' imprisonment on Count One; 262 months' imprisonment on Count Two; 240 months' imprisonment on Count Three; and 60 months' imprisonment on Count Four, with the sentences on all counts to run concurrently. J. at 3, ECF No. 71. The Circuit affirmed this Court's decision in November 2008. United States v. Mitchell, 304 F.Appx. 880, 881 (D.C. Cir. 2008).
On December 8, 2009, Mr. Mitchell filed a pro-se Motion to Vacate pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of both trial and appellate counsel. Mot. to Vacate, ECF No. 95. On January 30, 2012, this Court denied Mr. Mitchell's § 2255 motion. Mitchell v. United States, 841 F.Supp.2d 322 (D.D.C. 2012). On October 12, 2012, Mr. Mitchell filed the instant pro-se amended motion pursuant to 28 U.S.C. § 2255; he supplemented his motion with a " Supplemental Motion of Material Facts" on January 14, 2013. Pet'r's Am. Mot., ECF No. 105. The Government subsequently opposed Mr. Mitchell's motion and supplement, and ...