                     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

                                 2
 
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

                                 3
 
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



                                   4
 
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. § 2255

       A prisoner in the custody of the federal courts may

collaterally attack his or her sentence under 28 U.S.C. § 2255

on 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–

                                    5
 
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

                                   6
 
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. § 2255

claims to the U.S. Court of Appeals for the District of Columbia

is therefore GRANTED.

     B. 18 U.S.C. § 3582

     Under 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

                                  7
 
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

                                   8
 
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. §
                                                            
1
  Even 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.
                                                               9
 
3582(c).   An appropriate order accompanies this memorandum

opinion.



     SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           July 15, 2013




                                10
 
