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United States v. Mitchell

United States District Court, District of Columbia

June 27, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
VERNARD A. MITCHELL, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE

         Defendant Vernard A. Mitchell (“Mr. Mitchell”) moves to reduce his sentence pursuant to Section 404(b) of the First Step Act, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018). In 2005, Mr. Mitchell was arrested on drug and firearm charges. A jury found him guilty on four of five counts, including the unlawful possession with intent to distribute five grams or more of cocaine base (“crack cocaine”). Mr. Mitchell was sentenced to a total concurrent term of 262 months of imprisonment, and the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) affirmed his sentence.

         At the time of sentencing, Mr. Mitchell's offense for the unlawful possession with intent to distribute five grams or more of crack cocaine carried a five-year mandatory minimum sentence and a maximum sentence of forty years of imprisonment. In 2010 and 2018, the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010), and the First Step Act were enacted to, inter alia, reduce the harsh penalties for cocaine-based offenses by eliminating the five-year mandatory minimum sentence and lowering the maximum sentence to twenty years of imprisonment for offenses involving less than 28 grams of crack cocaine. To further address the sentencing disparity between crack cocaine and powder cocaine offenses, President Barack H. Obama issued executive grants of clemency for several individuals, including one for Mr. Mitchell in 2016. As a result, Mr. Mitchell's total concurrent sentence was reduced to 210 months of imprisonment. To date, Mr. Mitchell has served more than fourteen years in prison, he has not incurred a single disciplinary infraction, and he has completed various educational and vocational programs. Under these circumstances, the Court will exercise its discretion under Section 404(b) of the First Step Act to reduce his sentence to time-served.

         I. Background

         The factual and procedural background is straightforward. In 2005, Mr. Mitchell was indicted on five drug and firearm charges. Indictment, ECF No. 5 at 1-3.[1] The evidence at the five-day jury trial in 2006 revealed that Mr. Mitchell was inside an apartment where law enforcement recovered, among other things, 21 grams or less[2] of crack cocaine. See Gov't's Mem. in Aid of Sentencing, ECF No. 59 at 2; see also Presentence Investigation Report (“PSR”) at 4 ¶ 8.[3] The jury found Mr. Mitchell guilty on four of five counts. E.g., United States v. Mitchell, 953 F.Supp.2d 162, 163-64 (D.D.C. 2013) (“Mitchell II”); Mitchell v. United States, 841 F.Supp.2d 322, 326 n.1 (D.D.C. 2012) (“Mitchell I”).[4]

         Using the 2005 United States Sentencing Guidelines Manual, the Probation Office calculated Mr. Mitchell's sentencing guideline range. PSR at 5 ¶ 12. The Probation Office grouped Counts One through Four, Id. at 5 ¶ 15, and determined that Mr. Mitchell's base offense level was 28 since the offense involved the equivalency of at least 400 kilograms but less than 700 kilograms of marijuana. Mitchell II, 953 F.Supp.2d at 164 (citing PSR at 5-6 ¶ 17 (citing U.S.S.G. § 2D1.1(a)(3), (c)(6))). Because Mr. Mitchell was found to be in possession of two firearms that were related to the offense, the Probation Office applied a two-level upward adjustment, which adjusted his offense level to 30. Id. (citing PSR at 6 ¶ 22).

         Mr. Mitchell's career-offender status increased his adjusted offense level from 30 to 34. PSR at 6 ¶ 23. He had two prior convictions-one designated as a “controlled substance offense” and the other a “crime of violence”-in the Superior Court of the District of Columbia (“Superior Court”): (1) a 1989 conviction for attempted possession with intent to distribute cocaine (“PWID”); and (2) a 1997 conviction for attempted robbery. See Mitchell II, 953 F.Supp.2d at 164; see also PSR at 7, 9 ¶¶ 29, 32. The Probation Office calculated his total offense level of 34 by applying the statutory maximum sentence n.1. This Court dismissed the fifth count after the jury found him not guilty on that count. Id. at 326. for Mr. Mitchell's most serious offense-Count Two, which was 40 years-to the career-offender table in Chapter Four of the Sentencing Guidelines. Mitchell II, 953 F.Supp.2d at 164. That table provided that for offenses that have a statutory maximum of 25 years or more, the offense level is 34 for a “career offender.” Id. (citing U.S.S.G. § 4B1.1). As a result, Mr. Mitchell's criminal history category increased from V to VI. Id. The Probation Office determined that Mr. Mitchell's applicable guideline range was 262 to 327 months. Id. (citing PSR at 14 ¶ 69 (citing U.S.S.G. § 5(A))). The Court adopted those calculations. See generally J., ECF No. 71.

         In 2007, the Court sentenced Mr. Mitchell to 120 months of imprisonment on Count One, 262 months of imprisonment on Count Two, 240 months of imprisonment on Count Three, and 60 months of imprisonment on Count Four, to run concurrently for Counts One through Four, respectively. Mitchell I, 841 F.Supp.2d at 326 (citing J., ECF No. 71 at 3). Count Two-the crack cocaine offense-carried a five-year mandatory minimum sentence and a forty-year maximum sentence. See 21 U.S.C. § 841(b)(1)(B)(iii) (2005). The Court imposed concurrent terms of supervised release on Mr. Mitchell with three years on Count One, five years on Count Two, three years on Count Three, and three years on Count Four. J., ECF No. 71 at 4. The D.C. Circuit affirmed the Court's judgment in 2008. United States v. Mitchell, 304 F. Appx 880, 881 (D.C. Cir. 2008).

         Since 2009, Mr. Mitchell has sought relief under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c). See, e.g., Mitchell I, 841 F.Supp.2d at 333 (denying petitioner's pro se motion to vacate, set aside, or correct sentence); Mitchell II, 953 F.Supp.2d at 165-66 (denying petitioner's pro se motion for a sentence reduction under Section 3582(c) because the Fair Sentencing Act, was not retroactive; transferring petitioner's pro se motion to vacate, set aside, or correct sentence to the D.C. Circuit). The D.C. Circuit granted Mr. Mitchell's emergency motion for authorization to file a successive motion pursuant to Section 2255 in light of Johnson v. United States, 135 S.Ct. 2551 (2015), see Order, In re Vernard A. Mitchell, No. 16-3039 (D.C. Cir. June 23, 2016) (per curiam), but Mr. Mitchell later withdrew his motion, see Withdrawal of Mot., ECF No. 126 (styled as a “Notice of Voluntary Dismissal”).

         In 2010, Congress enacted, and President Obama signed into law, the Fair Sentencing Act, which eliminated the mandatory minimum sentence and lowered the maximum sentence to twenty years for offenses involving less than twenty-eight grams of crack cocaine. See Pub. L. 111-220, § 2, 124 Stat. 2372 (striking “5 grams” and inserting “28 grams” in 21 U.S.C. § 841(b)(1)(B)(iii)); see also 21 U.S.C. § 841(b)(1)(C). The Fair Sentencing Act did not apply retroactively to defendants, like Mr. Mitchell, whose convictions and original sentences became final before the Act was enacted on August 3, 2010. Dorsey v. United States, 567 U.S. 260, 264 (2012); see also Mitchell II, 953 F.Supp.2d at 166. A few years later, a No. of individuals serving sentences under the statutory penalties for crack cocaine offenses received reduced sentences through executive grants of clemency. See Def.'s Ex. A, ECF No. 133-2 at 1-9.

         On November 22, 2016, President Obama commuted Mr. Mitchell's total sentence of imprisonment to a term of 210 months, leaving intact his term of supervised release and the conditions imposed by this Court. See, e.g., Def.'s Ex. A, ECF No. 133-2 at 2-9; Press Release, President Obama Grants Commutations, The White House (Nov. 22, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/11/22/president-obama-grants-commutations. On December 6, 2016, this Court entered an Order to that effect. Order, ECF No. 125 at 1.

         In 2018, the First Step Act became law, giving retroactive effect to the statutory penalty provisions of the Fair Sentencing Act. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222. Under the First Step Act, a district court has the discretion to reduce a defendant's sentence if the court determines that the defendant is eligible for relief. Id.

         On May 14, 2019, Mr. Mitchell filed an emergency motion to reduce his sentence under Section 404(b) of the First Step Act. See Def.'s Emergency Mot. to Reduce Sentence (“Def.'s Mot.”), ECF No. 127. The Court ordered the government to respond to Mr. Mitchell's motion, Minute Order of May 16, 2019, and the government filed its opposition on June 3, 2019, see Gov't's Opp'n, ECF No. 132. Mr. Mitchell filed his reply on June 7, 2019, see Def.'s Reply, ECF No. 133. Mr. Mitchell's motion is now ripe and ready for the Court's adjudication.

         II. Analysis

         Under Section 404(b) of the First Step Act, “[a] court that imposed a sentence for a covered offense may, on motion of the defendant . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. “[T]he term ‘covered offense' means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act . . ., that was committed before August 3, 2010.” Id. § 404(a). In other words, the First Step Act effectively authorizes a federal district court to retroactively apply the statutory penalty provisions of the Fair Sentencing Act to a covered offense, such as the unlawful possession of five grams or more of crack cocaine with the intent to distribute it, and thereby reduce a defendant's sentence. United States v. Powell, 360 F.Supp.3d 134, 138 (N.D.N.Y. 2019).

         In moving for a reduced sentence, Mr. Mitchell advances three primary arguments. First, he argues that he is eligible for a sentence reduction of seventy-seven months of imprisonment and a three-year term of supervised release under Section 404(b) of the First Step Act because: (1) this Court sentenced him to a “covered offense”-Count Two-involving “5 grams or more” of crack cocaine; and (2) the Fair Sentencing Act amended 21 U.S.C. § 841(b)(1)(B) (2005) to remove the five-year mandatory minimum sentence. Def.'s Mot., ECF No. 127 at 6. Next, Mr. Mitchell contends that President Obama's commutation of his sentence does not affect his eligibility. Id. Finally, Mr. Mitchell urges this Court to reduce his sentence to seventy-seven months of imprisonment and three years of supervised release because he no longer qualifies as a “career offender” under current law that takes into account a lower Guidelines range. Id. at 7-11.

         The government responds that “[b]ut for the commutation of his sentence, [Mr. Mitchell] would be eligible for a sentence reduction under the First Step Act” because he “was sentenced before August 3, 2010, for a covered offense . . . and application of the Fair Sentencing Act reduces both his statutory penalties and his guideline range.” Gov't's Opp'n, ECF No. 132 at 8 (emphasis added). The government argues that a reduced sentence for Mr. Mitchell is not warranted because: (1) his career-offender offense level is now 32; and (2) his commuted sentence of 210 months of ...


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