United States District Court, District of Columbia
G. SULLIVAN, UNITED STATES DISTRICT JUDGE
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.
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.
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. 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 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. 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
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 ¶
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.
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).
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
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.
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),
On December 6, 2016, this Court entered an Order to that
effect. Order, ECF No. 125 at 1.
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.
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
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).
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.
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 ...