                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 19 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-30168

              Plaintiff - Appellee,              D.C. No. 2:97-cr-00283-JLR

  v.
                                                 MEMORANDUM*
TIMOTHY MICHAEL MITCHELL,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30169

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00213-JLR

  v.

TIMOTHY MICHAEL MITCHELL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                        Argued and Submitted April 5, 2010
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

      Timothy Mitchell appeals his jury conviction and sentence for possession of

cocaine with intent to distribute and possession of methamphetamine with intent to

distribute. We affirm.

      1. The district court did not abuse its discretion when it allowed the

Government to present evidence at trial that Mitchell had admitted possession of

the drugs at issue before a magistrate judge, who was conducting a hearing to

determine whether Mitchell violated the terms and conditions of his pre-existing

supervised release (even though those admissions were later withdrawn). We

review the district court’s ruling on Mitchell’s evidentiary objection for abuse of

discretion. United States v. Parks, 285 F.3d 1133, 1138 (9th Cir. 2002).

      Mitchell does not challenge the relevancy of his comments before the

magistrate court; Federal Rule of Evidence 410 does not prohibit the admission of

such evidence. Although such admissions might be analogized to a plea of guilty,

Mitchell’s statements were unlike the acceptance of a guilty plea at trial, because a

probation violation hearing seeks to determine whether the probationer breached

the court’s trust; it does not seek to adjudicate criminal guilt or to punish the

probationer for commission of the underlying offenses constituting the probation

violation. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006).


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Furthermore, even if the district court abused its discretion, the Government has

demonstrated that any error was harmless, because the jury was presented with

overwhelming evidence of Mitchell’s guilt. Therefore, the alleged error did not

materially affect the verdict. United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir.

1993).

      2. The district court did not commit error in finding that Mitchell was

subject to a sentencing enhancement based upon his status as a “career offender.”

The relevant dispute at sentencing was whether Mitchell was in custody in May of

1993, on either his 1988 or 1980 convictions for possession of methamphetamine

with intent to distribute. Relying upon six exhibits put forth by the Government

and entered into the record at sentencing, the district court made a factual finding

that he was. Although Mitchell disagrees with the court’s final determination, he

cannot show that the court committed clear error in finding (1) these documents

established he was in custody in May of 1993 and (2) when combined with other

undisputed aspects of his criminal history, he was subject to an enhancement as a

career offender. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

      Mitchell next argues that the district court should have relied upon only

“judicially noticeable” documents, as defined in Taylor v. United States, 495 U.S.

575 (1990). However, when a court must determine the length of time between an


                                          3
instant offense and release from a previous offense, the “Taylor problem does not

arise . . . because [the facts] are independent of the nature of the underlying

offense.” United States v. Ellsworth, 456 F.3d 1146, 1152 (9th Cir. 2006). Here,

Mitchell has conceded that his previous convictions qualify as drug convictions

under the relevant Sentencing Guideline. The only question before the sentencing

court was the length of time between the commission of the instant offense and

when Mitchell finished serving his sentence on the previous crimes. When Taylor

does not apply, a sentencing court may, generally, “consider relevant information

without regard to its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability to support its

probable accuracy.” U.S. Sentencing Guidelines Manual § 6A1.3(a). See also

Witte v. United States, 515 U.S. 389, 400–01 (1995) (noting that sentencing courts

have traditionally considered a wide range of information, including prior criminal

conduct). Mitchell has not argued that the exhibits failed to meet this standard.

Therefore, the court did not err in considering the exhibits put forth by the

Government.

      3. The district court properly corrected Mitchell’s original sentence,

pursuant to Federal Rule of Criminal Procedure 35(a). Rule 35(a) states that a

“court may correct a sentence that resulted from arithmetical, technical, or other


                                           4
clear error.” In United States v. Carty, we held that “[a]ll sentencing proceedings

are to begin by determining the applicable Guidelines range. The range must be

calculated correctly.” 520 F.3d 984, 991 (9th Cir. 2008) (en banc). “It would be

procedural error for a district court to fail to calculate—or to calculate

incorrectly—the Guidelines range;” “a procedurally erroneous . . . sentence will be

set aside.” Id. at 993. Both parties agree that the district court incorrectly

calculated the Guidelines range at the initial sentencing hearing.

      Mitchell’s conviction and subsequent sentence are AFFIRMED.




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