USA v. Mitchell

• Decision Date: 20 October 2010
• Docket Number: No. 08-50429.,08-50429.
• Citation: 624 F.3d 1023
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick J. MITCHELL, AKA Pep, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 1023

UNITED STATES of America, Plaintiff-Appellee,

v.Patrick J. MITCHELL, AKA Pep, Defendant-Appellant.

No. 08-50429.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 11, 2010.

Filed Oct. 20, 2010.

Gary P. Burcham, Burcham & Zugman, San Diego, CA, for the defendant-appellant.

Jean-Claude Andre, Assistant United States Attorney, Criminal Appeals Division, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:07-cr-00474-GAF-1.

Before: ALFRED T. GOODWIN, WILLIAM C. CANBY, JR. and DIARMUID F. O'SCANNLAIN, Circuit Judges.

Opinion by Judge GOODWIN; Concurrence by Judge O'SCANNLAIN.

OPINION

GOODWIN, Senior Circuit Judge:

Patrick J. Mitchell appeals his 180-month imprisonment sentence as a career offender under § 4B1.1 of the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). We affirm and join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.

FACTUAL AND PROCEDURAL BACKGROUND

The Federal Bureau of Investigation (“FBI”) and the Los Angeles Police Department had identified Mitchell as a member of the Black P-Stone Bloods street gang and a supplier of crack cocaine. On May 23, 2005, an FBI confidential informant purchased two ounces of crack cocaine from Mitchell for $1,000. Forensic analysis showed that the plastic bag Mitchell sold to the informant contained 52.4 grams of crack cocaine.

Pursuant to a plea agreement, Mitchell pled guilty to a single-count information charging him with distributing a mixture containing 52.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). This crime requires a mandatory minimum of 10 years of imprisonment. Id. § 841(b)(1)(A)(iii). Because Mitchell pled guilty pre-indictment, the government agreed not to use his prior felony narcotics convictions to enhance his mandatory minimum sentence under 21 U.S.C. §§ 802(44), 841, 851 and to recommend that he be sentenced at the low end of the Sentencing Guidelines range. Nonetheless, the parties acknowledged that the crime to which Mitchell was pleading guilty was a felony narcotics trafficking crime, and that his criminal history could subject him to an enhanced Guidelines range as a career offender.

Concluding that Mitchell had four predicate state felony convictions, the Probation Office calculated his offense level as a career offender under § 4B1.1(b) of the U.S. Sentencing Guidelines. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1(b) (2007) (amended May 1, 2008). ¹ Following objections to and revisions of Mitchell's presentence report (“PSR”), the district judge conducted a sentencing hearing on September 22, 2008. The judge determined that the four felony convictions all constituted predicates for Mitchell's career-offender status, although only two were required. The judge then considered the 18 U.S.C. § 3553(a) factors and concluded: “Mitchell's record is lengthy. He has had virtually no periods in his life that were truly crime free.”

Mitchell's Sentencing Guidelines range was 262-327 months of imprisonment. Regarding the incarceration portion of Mitchell's sentence, the district judge explained that “the single most important variable in my exercise of discretion, which is going to result in a sentence below the government's recommendation, is the crack powder differential.” Noting that the disparity was “enormous” and “disproportionate,” the judge determined that “it requires some exercise of discretion and judgment, but there are limitations.” The judge stated that Mitchell's “lengthy serious criminal history,” including “violence,” “threats of violence,” and “drug dealing” necessitated “protecting the public” and required “a substantial sentence.” Although the statutory minimum was 10 years, 21 U.S.C. § 841(b)(1)(A), which Mitchell had requested, the judge stated that a sentence of 120 months was “too great an adjustment ... the adjustment downward should [not] go that far.”

From the low end of Mitchell's Sentencing Guidelines range, 262 months, the judge departed downward 43 months on the basis of the crack/powder cocaine disparity and credited Mitchell for 39 months served in state custody on a related crime. Consequently, the district judge sentenced Mitchell to 180 months of imprisonment, followed by 5 years of supervised release, and ordered him to pay a $100 special assessment. Mitchell is in custody serving his 180-month sentence. He challenges his predicate state convictions that were used to qualify him for career-offender status under the Sentencing Guidelines and the district judge's consideration of the crack/powder disparity in his sentence.

DISCUSSION

I. Prior State Felony Convictions Qualifying as Predicates for Sentencing Guidelines, Career-Offender Status

We review de novo a district court's “interpretation of the Sentencing Guidelines and its determination that a defendant qualifies as a career offender” under U.S.S.G. § 4B1.1. United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir.2008). To qualify as a career offender, the defendant must be (1) at least 18 at the time he committed the subject crime of conviction, which must be (2) “a felony that is either a crime of violence or a controlled substance offense,” and (3) the defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Only the third requirement is at issue in this appeal.

Mitchell concedes that, under Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717-18 (9th Cir.2003), his 1997 conviction under Cal.Penal Code § 422 for making a terrorist threat is a crime of violence. Appellant's Br. at 15. Therefore, Mitchell's career-offender status is substantiated under the Sentencing Guidelines as long as one of his three other prior state convictions is an appropriate predicate.

Mitchell's 1994 conviction for possession of a weapon in jail also is a crime of violence. United States v. Young, 990 F.2d 469 (9th Cir.1993). Young held that “[i]n determining whether an offense ‘involves conduct that presents a serious potential risk of physical injury to another,’ U.S.S.G. § 4B1.2(1)(ii), courts may consider the statutory definition of the crime and may also consider the conduct ‘expressly charged[ ] in the count of which the defendant was convicted,’ U.S.S.G. § 4B1.2, comment. (n.2),” although either component is sufficient. 990 F.2d at 472. Therefore, Young's possession of a shank in jail, in violation of Cal.Penal Code § 4574(a), created a viable risk that a person might be injured, which made it a crime of violence under the statutory definition. ² Like the Young defendant, Mitchell violated § 4574(a) by possessing a shank in jail, which was a qualifying predicate conviction.

Mitchell's 1989 conviction for possession of cocaine for sale, in violation of Cal. Health & Safety Code § 11351.5, is a controlled-substance crime. This court has held that

[a] prior conviction under § 11351.5 categorically constitutes a controlled substance offense for the purposes of § 4B1.1 because (1) it is an offense under state law, (2) that is punishable by imprisonment for a term exceeding one year, and (3) that prohibits the distribution or dispensing of a controlled substance or the possession of a controlled substance with intent to distribute or dispense.

United States v. Charles, 581 F.3d 927, 934 (9th Cir.2009). This state controlled-substance felony was an additional qualifying predicate conviction.

Mitchell “d[id] not challenge” the Probation Office's determination that his 1991 prior conviction for first-degree burglary under Cal.Penal Code § 459 “qualifies as a career offender predicate.” The district judge determined Mitchell's 1991 first-degree burglary conviction to be a career-offender predicate because Mitchell “concedes the first-degree burglary conviction does count.” Whether a conviction under § 459 is a crime of violence is a question currently pending in this circuit. ³ Because Mitchell had three other qualifying predicate convictions, and the Guidelines require only two to support his career-offender sentencing status, he properly could be sentenced as a career offender, which was recognized in his plea agreement.

II. Consideration of the Crack/Powder Disparity on a Career-Offender Sentence

Although Mitchell's career-offender, Sentencing Guidelines range was 262-327 months of imprisonment, the district judge departed downward from the low end by 43 months because of his policy disagreement with the crack/powder sentencing disparity. Until recently, some courts had held that, even though judges were free to depart downward from ordinary sentences to account for crack/powder sentencing disparity, they could not do so when the defendant was being sentenced as a career offender because Congress had mandated that career offender sentences should be “at or near the maximum term,” 28 U.S.C. § 994(h). See, e.g., United States v. Welton, 583 F.3d 494, 496 (7th Cir.2009).

In line with such cases, the government originally argued here that the district court had no power to depart downward as it did. By subsequent letter, however, the government noted that it had retreated from that position, with the consequence that more recent cases had recognized the ability of sentencing courts to depart downward because of the crack/powder disparity even in career-offender cases. See, e.g., United States v. Corner, 598 F.3d 411 (7th Cir.2010) (en banc). For reasons that follow, we agree with Corner and uphold the departure.

In a sequential...