United States v. Mitchell ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0006n.06
Filed: October 5, 2004
Case No. 03-2043
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
UNITED STATES OF AMERICA ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiff-Appellant. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
v. )
) OPINION
LADARIN Q. MITCHELL )
)
Defendant-Appellee,
BEFORE: NELSON and COLE, Circuit Judges; MARBLEY, District Judge.*
R. GUY COLE, JR., Circuit Judge. The Government appeals the sentence imposed by the
district court on defendant Ladarin Q. Mitchell. Mitchell pled guilty to a violation of 18 U.S.C. §
922(g) and was assigned a criminal history in Category IV in his Presentence Investigation Report.
The district court concluded that criminal history Category IV “over-represented the seriousness of
the defendant’s criminal history,” and accordingly downwardly departed from the sentencing range
required by Category IV based upon its conclusion that Mitchell’s criminal history category would
be more accurately characterized as Category III.
The Government appeals the sentence on the ground that the district court erred in granting
Mitchell a downward departure of one criminal history category because: (1) the judge failed to give
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation
the required notice of his intention to grant a downward departure; (2) Mitchell’s assignment in
Category IV did not over-represent the seriousness of his criminal history; and (3) the district court
impermissibly departed based on Mitchell’s apparent substance abuse problem, age, and the fact that
he had rejected a two-year plea offer in state court.
For the reasons stated below, we VACATE the sentence and REMAND to the district court
for resentencing consistent with this opinion.
I. BACKGROUND Mitchell was arrested by Detroit Police
on a weapons violation, after firing a gun into the air in a public park. The Wayne County
Prosecutor offered Mitchell the opportunity to plead guilty to a state charge of being a felon in
possession of a firearm, a crime which carries a two-year sentence. When Mitchell declined a plea
bargain in state court, his case was referred to the United States Attorney for the Eastern District of
Michigan pursuant to Project Safe Neighborhoods, a federal-state cooperative program aimed at
reducing gun violence. The U.S. Attorney charged Mitchell with violating 18 U.S.C. § 922(g),
which makes it a crime to be a felon in possession of a firearm. Mitchell then pled guilty.
The United States Probation Department thereupon prepared a Presentence Investigation
Report (“PSI”), determining that Mitchell had a total offense level of 17, seven criminal history
points, and a criminal history category of IV. The required sentencing range, according to the PSI,
should have been 37 to 46 months. The PSI further noted that there were no factors warranting a
downward departure from this range. In a written objection to the PSI, Mitchell stated that a
downward departure was warranted because he had inadequate representation in the Wayne County
court. The basis for this objection was that Mitchell’s counsel in state court failed to recommend
that he accept the two-year plea offer, which was arguably a more favorable sentence than he likely
would receive in federal court. The Government filed a sentencing memorandum, contesting that
a downward departure was warranted or even available.
At sentencing, defense counsel renewed his request for a downward departure on the ground
that Mitchell was not adequately advised by his attorney in state court of the consequences of the
case being referred for federal prosecution. In its response, the Government contended that
Mitchell’s state-court attorney was well aware of the possibility of referral for federal prosecution.
The Government also noted that there was no evidence that Mitchell was given an inadequate period
of time to consider the plea offered by the prosecutor. The district court then raised sua sponte the
possibility of a downward departure based on the over-representation of Mitchell’s criminal history
in Category IV. Turning its attention to the PSI, the district court noted that Mitchell had seven
criminal history points, resulting in a criminal history category of IV. The district court then focused
on one conviction, a 1995 conviction for attempted possession with the intent to distribute less than
50 grams of cocaine, and concluded that this portion of Mitchell’s record, which added two points
in the criminal history calculation, “over-represented the seriousness of the defendant’s criminal
history.”
The removal of these two points, to which the Government objected, resulted in five criminal
history points and the reduction of Mitchell’s criminal history to Category III, which carries a
sentencing range of thirty to thirty-seven months. The district court sentenced Mitchell to thirty
months’ imprisonment, recommending that Mitchell be placed in a drug treatment program for the
first twelve months of his incarceration.
II. ANALYSIS
A. Over-Representation of Seriousness of Criminal History
Pursuant to the Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act of 2003 (“PROTECT ACT”), “we review de novo whether the district court has complied
with the Act's requirement that the reasons for departure must be stated with specificity in the written
order of judgment and commitment and whether the [district court's] departure was based on an
impermissible ground.” United States v. Camejo, 333 F.3d 669, 675 (6th Cir. 2003) (quoting United
States v. Tarantola, 332 F.3d 498, 500 (8th Cir.2003)).
Mitchell concedes that his criminal history calculates to be Category IV under the federal
sentencing guidelines. From there, the district judge applied U.S.S.G. § 4A1.3 (2002), which allows
a judge to reduce the criminal history category of a defendant if it “significantly over-represents the
significance of the defendant’s criminal history.” The relevant Guideline states:
There may be cases where the court concludes that a defendant’s criminal history
category significantly over-represents the significance of the defendant’s criminal
history or the likelihood that the defendant will commit further crimes. An example
might include the case of a defendant with two minor misdemeanor convictions
close to ten years prior to the instant offense and no other evidence of prior criminal
behavior in the intervening period. The court may conclude that the defendant’s
criminal history was significantly less serious than that of most defendants in the
same criminal history category (Category II), and therefore consider a downward
departure from the guidelines.
U.S.S.G. § 4A1.3 (2002). Thus, to determine whether Mitchell’s criminal history category
significantly over-represents the significance of his criminal history, we must consider whether
Mitchell’s criminal history is “significantly less serious than that of most defendants in the same
criminal history category.”
Upon review of the record and Mitchell’s criminal history, we conclude that the seriousness
of Mitchell’s criminal history is not significantly over-represented by his designation in Category
IV. The district court removed the two criminal history points assigned for Mitchell’s 1995
conviction for attempted possession with intent to distribute less than 50 grams of cocaine. The
district court, however, erred in singling-out this particular conviction. The guideline in question
requires us to consider the seriousness of Mitchell’s criminal history as a whole, which the district
court did not do. Further, the record regarding the 1995 conviction reflects that although Mitchell
was initially charged with possession with intent to distribute crack, and pled guilty to the lesser
attempt charge, when arrested he possessed 27 baggies of crack cocaine which he was selling on the
street. In fact, he was caught because he tried to sell crack to a plain-clothes police officer. The
district court erred in its decision not to look at these facts when considering a departure under
U.S.S.G. §4A1.3. See United States v. Ruffin, 997 F.2d 343, 345-46 (7th Cir. 1993).
Considering Mitchell’s criminal history as a whole, we conclude that the seriousness of
Mitchell’s criminal history is not significantly over-represented by his designation in Category IV.
The inquiry is not confined to examining the convictions for which Mitchell received points in his
criminal history calculation. See United States v. Barber, 200 F.3d 908, 912-13 (6th Cir. 2000). In
addition to the three crimes which resulted in the calculation of seven criminal history points that
placed Mitchell in a category IV criminal history, Mitchell also has four other convictions not
included in his criminal history calculation because they occurred while he was a minor or they fall
outside the applicable time period for inclusion in the scoring of his criminal history. These include:
1.) a conviction for unlawful driving away of an auto, receiving and concealing stolen property over
$100, and fleeing and alluding a police officer at age 17; 2.) a conviction for disturbing the peace for
dancing in front of the mall at age 17; 3.) a conviction for reckless diving at age 17; and 4.) a
conviction for carrying a concealed weapon at age 19. These convictions are properly considered
when determining Mitchell’s eligibility for this departure.
Finally, we reject the Government’s argument that the district court impermissibly departed
on the basis of age, drug abuse, or the state court plea offer. It cannot be said, on this record, that
the district court actually departed on any of those bases, although the record is less than clear.
Further, whether a district court may consider age or drug abuse as a tool to interpret the severity of
a criminal history (when considering either an upward or downward departure) is an open question
in this circuit, and one which we need not decide in this case. See, e.g., United States v. Wallace,
— F.3d —, 2004 WL 1636385 (8th Cir. July 23, 2004) (youth, or the absence thereof, is a relevant
factor of downward departure from career offender status).
We should also note that, although not argued by Mitchell, he would not be entitled to a
downward departure on the ground that his criminal history significantly over-represents the
likelihood that he will commit further crimes. U.S.S. G. § 4A1.3 provides “that a defendant’s
criminal history category significantly over-represents . . . the likelihood that the defendant will
commit further crimes.” The Government points out that Mitchell “has been in continuous contact
with the criminal justice system since 1989,” that he has “routinely violated the terms of his release
while on probation and parole,” and that he has “committed new crimes while under supervision.”
Mitchell is not entitled to a departure on those grounds.
B. Notice of Intention to Depart Downwardly
Finally, the Government argues that the district court erred by failing to give it reasonable
notice of its intention to grant a downward departure. Rule 32 (h) of the Federal Rules of Criminal
Procedure provides:
Before the court may depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in a party’s prehearing
submission, the court must give the parties reasonable notice that it is contemplating
a departure. The notice must specify any ground on which the court is contemplating
a departure.
We have previously noted that such failure is, in fact, error, see United States v. Kuhn, 345 F.3d 431,
436 (6th Cir. 2003) (“The district court’s failure to notify the Government that it was planning to
depart on this basis was error.”); United States v. Yang, 281 F.3d 534, 547 (6th Cir. 2002) (“The
district court’s failure to give notice of its intention to depart, we conclude, was error as well.”).
Because, however, we determine that the departure was in error in any case, we need not rule on this
claim. III. CONCLUSION
For the preceding reasons, we conclude that the district court erred in its determination that
Mitchell’s criminal history category of IV significantly over-represents the seriousness of his
criminal history. Mitchell’s sentence is therefore VACATED and the case is REMANDED for
resentencing consistent with this opinion.