The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
James Mitchell moves under 18 U.S.C. § 3582(c)(2) to correct his
sentence. The motion is denied.
Mitchell was charged in a multi-count RICO indictment with numerous
violent crimes, including murder and armed robbery. Mitchell and the
Government entered into a plea agreement dated August 14, 1997, in which
Mitchell agreed to plead guilty to Count 10 of the Superceding
Indictment, charging him with a particular robbery during which one
victim was killed and another victim seriously injured. It was stipulated
in the plea agreement that under the Sentencing Guidelines the offense
level applicable to Count 10 was 40 and that Mitchell's criminal history
category was III, resulting in a Guideline range of 360 months to life.
However, since the maximum for Count 10, Conspiracy/Attempt to Commit
Robbery (18 U.S.C. § 1951), was 240 months, this became the stipulated
sentence. On June 24, 1999 Mitchell was sentenced to 240 months imprisonment.
Mitchell has challenged his sentence on numerous occasions.
Mitchell filed a notice of appeal. On January 14, 1999 the Court of
Appeals granted the Government's motion for summary affirmance and issued
its mandate. Mitchell filed certain further motions, which were finally
denied by the Court of Appeals on June 10, 1999. On June 22, 2000
Mitchell filed with the Pro Se Clerk's Office an application to file an
untimely Section 2255 Motion. Despite the fact that the motion was
untimely, this court addressed that motion on the merits and denied it in
an opinion dated November 22, 2002. Mitchell filed a motion for
reconsideration of the denial of his § 2255 petition, which motion was
denied on December 30, 2002.
Mitchell now seeks a modification of his term of imprisonment based on
a change in the sentencing guidelines pursuant to 18 U.S.C. § 3582(c)(2).
Section 3583(c)(2) grants the court the authority to modify a term of
imprisonment "in the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . ."
Mitchell's argument is difficult to follow. In his motion Mitchell
states as follows: 4. The probation officer preparing the PSR ¶ 98
relied upon the actual conduct and used as a basis of
the sentence the § 2A 1.1 establishing Base Offense
level 43. See attached affidavit.
However, the amendment matter of this motion
eliminated the actual conduct and opted for the
offense of conduct applicable to the offense of
6. Mitchell's offense of conviction is robbery,
Base Offense as result of the amendment should be 20
plus enhancements up to level 32 less 3 levels for his
guilty plea; that is level 29.
7. The intertwinement in this case of the actual
conduct and cross reference towards the 591 amendment
is conflicting therefore the lenity doctrine should
In the attached affidavit Mitchell similarly states that somehow
the November 1, 2000 Amendment of the Sentencing Guidelines affects his
sentence and that the base level of his offense should have been 20 for
robbery under § 2B3.1 plus the relevant enhancements, and not the 43
point base level mentioned above.
Mitchell's argument is without merit. USSG Section 2B3. l(c) of the
offense guideline section (Robbery) contains a cross reference to § 2A1.1
(First Degree Murder) requiring application of § 2A1.1 for robberies in
which "a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within the
territorial or maritime jurisdiction of the United States . . ." Mitchell
pled guilty to an attempted robbery during the course of which one of the
victims was murdered. Section 18 U.S.C. § 1111 (murder, including felony murder) was referenced in the
plea agreement. (Transcript of Mitchell Sentencing, June 24, 1998, at
7:1022). Following § 2B3.1(c), the presentencing report calculated
Mitchell's base offense level based on § 2A1.1 (a), setting it at 43.
Mitchell received 3 points off for acceptance of responsibility, leaving
him with a total offense level of 40. This offense level, together with a
criminal history category of III, yields a Guideline range of 360 months
imprisonment to life. The statutory maximum term for robbery under
18 U.S.C. § 1951, however, is 240 months, which is the sentence that
Mitchell's objection to the felony murder charge was extensively
discussed during his sentencing hearing. It is undisputed that Mitchell
fired shots during the attempted robbery and that one of the victims was
fatally shot and another seriously injured. Mitchell nevertheless refused
to withdraw his guilty plea. Moreover, he admitted that he understood the
result of the plea agreement would be that he would receive a 20-year
sentence, and that he would otherwise face a much higher sentence.
(Transcript of Mitchell Sentencing, June 24, 1994, at 25-26).
Nothing about the November 1, 2000 Amendment to the Sentencing
Guidelines affects the calculation of Mitchell's sentence. Indeed, the
reason for the amendment, as stated in the Amendment itself, was to address a "circuit conflict regarding the enhanced penalties in § 2d 1.2
(Drug Offenses Occurring New Protected Locations or Involving Underage or
Pregnant Individuals)." USSG App. C, 232 (Nov. 2003). Mitchell's sentence
was not based on § 2D1.2.
Mitchell's motion for a sentence reduction is denied.