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May 7, 2004.


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 conviction.
6. Mitchell's offense of conviction is robbery, thus his
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 benefit Mitchell.
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 received.

  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.


20040507 ...

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