United States v. Mitchell , 953 F. Supp. 2d 162 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal No. 05-110
VERNARD MITCHELL, )
)
Defendant. )
)
MEMORANDUM OPINION
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.
I. BACKGROUND
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
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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
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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. App’x 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 moved for his § 2255 claims to be
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transferred. Government’s Mot. to Transfer at 4, n.3, ECF No.
108. The motions are ripe for resolution by the Court.
II. Discussion
A. 28 U.S.C. § 2255A prisoner in the custody of the federal courts may
collaterally attack his or her sentence under 28 U.S.C. § 2255on the grounds that “the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law.”
Harris v. United States, 522 F. Supp. 2d 199, 203 (D.D.C. 2007)
(citing 28 U.S.C. § 2255). After the first unsuccessful § 2255
motion, the petitioner must seek certification from the
appropriate court of appeals before filing a successive motion.
28 U.S.C. § 2255(h); See also 28 U.S.C. § 2244(b)(3)(A) (“Before
a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”). Because this
restriction is jurisdictional, the court must establish that it
has the power to hear the case before addressing the merits of
such a motion. See Burton v. Stewart, 549 U.S. 147 (2007)
(holding that the restrictions on successive habeas petitions
from state sentences under § 2244 are jurisdictional); Davis–
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Rice v. United States, 224 F. App’x 702, 703 (9th Cir. 2007)
(applying Burton to habeas petitions from federal sentences
under § 2255); United States v. Herrera, 216 F. App’x 809, 811
(10th Cir. 2007) (determining that the requirement for circuit
certification of successive § 2255 motions is jurisdictional);
see also United States v. Akers, 519 F. Supp. 2d 94, 96 (D.D.C.
2007) (“The court of appeals has not authorized the filing of
[petitioner's] [second or successive] motion; thus, this Court
is without jurisdiction over the matter.”).
As discussed above, On December 8, 2009, Mr. Mitchell filed
his first unsuccessful pro-se motion to vacate pursuant to §
2255. On October 12, 2012, Mr. Mitchell filed the instant pro-
se amended motion pursuant to § 2255. In each motion, Mr.
Mitchell attacks his conviction and sentencing on a number of
constitutional grounds. See Mitchell v. United States, 841 F.
Supp. 2d 322 (D.D.C. 2012) (describing claims in petitioner’s
first habeas petition); see also Pet’r’s Am. Mot. (arguing,
inter alia, that Mr. Mitchell’s rights under the Sixth and
Fourteenth Amendment were violated during the criminal
proceedings, resulting in an unlawful conviction and sentence).
Although Mr. Mitchell titles the instant motion “Petitioner’s
Amended Motion to Petitioners Motion to Vacate Set Aside Or
Correct Sentence”, it is clear that Mr. Mitchell’s now-pending
motion is a “second or successive” motion as that phrase is used
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in § 2255(h), because this Court ruled on Mr. Mitchell’s first §
2255 motion on January 30, 2012, and that motion is therefore
not susceptible to amendment.
Therefore, this Court is without jurisdiction to consider
the motion as Mr. Mitchell has not first obtained certification
from the D.C. Circuit authorizing him to file it in this Court.
The appropriate course of action is to transfer Mr. Mitchell’s
motion to the D.C. Circuit pursuant to 28 U.S.C. § 1631. See
Williams v. Gonzales, 567 F. Supp. 2d 148, 149 (D.D.C. 2008);
Akers, 519 F. Supp. 2d at 96. The Government's motion to
transfer Mr. Mitchell’s pro-se constitutional 28 U.S.C. § 2255claims to the U.S. Court of Appeals for the District of Columbia
is therefore GRANTED.
B. 18 U.S.C. § 3582Under 18 U.S.C. § 3582(c), a court may modify a sentence
when the defendant was sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered.
Dillon v. United States, 130 S. Ct. 2683, 2687 (2010); United
States v. Tepper, 616 F.3d 583, 585 (D.C. Cir. 2010). However,
Mr. Mitchell’s sentence was based on a sentencing range that has
not been subsequently lowered.
As discussed above, Mr. Mitchell’s status as a “career
offender” required the Probation Office and this Court to
compare Mr. Mitchell’s applicable guideline range under § 2D1.1
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with the applicable “career offender” provision under Section §
4B1.1. Although Mr. Mitchell’s offense level under Guideline §
2D1.1 would be lower if he was sentenced today, Mr. Mitchell’s
sentence was not based on that level; rather, it was based on
his “career offender” offense level pursuant to Section § 4B1.1
of the Sentencing Guidelines. That enhancement, which increased
Mr. Mitchell’s base offense level of 30 to an offense level of
34, has remained unchanged since the time of Mr. Mitchell’s
sentencing. See Tepper, 616 F.3d at 585 (where defendant was
sentenced based on “career offender” sentencing range, defendant
was not entitled to sentence reduction based on amendment to
crack cocaine sentencing range, because defendant's sentence was
not based on that range).
Defendant argues that the Fair Sentencing Act, which
increased the amount of crack cocaine necessary to trigger
mandatory minimum sentences, applies retroactively to his
sentence, and that this qualifies him for § 3582(c) relief. See
Pet’r’s Am. Mot. at 5. However, the FSA does not apply
retroactively to a defendant whose conviction and original
sentence became final before the FSA was enacted on August 3,
2010. United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012);
see United States v. Jiron, No. 96-CR-0210, 2012 WL 2384108, 1
(D.D.C. June 25, 2012) (applying Bigesby to deny motion to
reduce sentence based on Fair Sentencing Act where defendant was
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sentenced in 2004); c.f. Dorsey v. United States, 132 S. Ct.
2321, 2335 (2012) (holding that the FSA applies retroactively
only in the narrow circumstance of the post-Act sentencing of a
pre-Act offender).
Because Mr. Mitchell was sentenced in 2007, prior to the
enactment of the FSA on August 3, 2010, the FSA cannot be
applied retroactively to his sentence.1 Therefore, Mr. Mitchell
may not claim § 3582(c) relief under any amendment to the crack
cocaine sentencing guidelines subsequent to his sentencing, nor
may he claim relief under the FSA.
III. Conclusion
For the foregoing reasons, this Court TRANSFERS
petitioner’s pro-se Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255, and DENIES petitioner’s
motion for a reduction in sentence pursuant to 18 U.S.C. §
1Even if the FSA was retroactively applicable to Mr. Mitchell’s
sentence, it is not clear that it would have any effect on his
sentence. As discussed above, Mr. Mitchell’s sentence was based
on his status as a “career offender.” That enhancement, which
increased Mr. Mitchell’s base offense level of 30 to an offense
level of 34, is calculated based on the statutory maximum
sentence applicable to a defendant’s most serious offense. It
is unclear whether retroactive application of the FSA to Mr.
Mitchell’s sentence would alter this calculation, because at the
time Mr. Mitchell was sentenced, the 21 grams of crack cocaine
in his possession carried a maximum sentence of 40 years. See
21 U.S.C. § 841(b)(1)(2006). However, if Mr. Mitchell was
sentenced now, pursuant to the FSA, the 21 grams of crack
cocaine in his possession would be less than the statutory
minimum required to charge him under § 841(b)(1). However,
because the FSA does not apply retroactively to Mr. Mitchell’s
sentence, this inquiry is outside of the scope of this opinion.
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3582(c). An appropriate order accompanies this memorandum
opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 15, 2013
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