                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

                 Plaintiff,

 v.                                Crim. No. 05-00110 (EGS)
 VERNARD A. MITCHELL,

                 Defendant.


                        MEMORANDUM OPINION

      Defendant Vernard A. Mitchell (“Mr. Mitchell”) moves to

reduce his sentence pursuant to Section 404(b) of the First Step

Act, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018).

In 2005, Mr. Mitchell was arrested on drug and firearm charges.

A jury found him guilty on four of five counts, including the

unlawful possession with intent to distribute five grams or more

of cocaine base (“crack cocaine”). Mr. Mitchell was sentenced to

a total concurrent term of 262 months of imprisonment, and the

United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) affirmed his sentence.

      At the time of sentencing, Mr. Mitchell’s offense for the

unlawful possession with intent to distribute five grams or more

of crack cocaine carried a five-year mandatory minimum sentence

and a maximum sentence of forty years of imprisonment. In 2010

and 2018, the Fair Sentencing Act, Pub. L. No. 111-220, 124
Stat. 2372 (2010), and the First Step Act were enacted to, inter

alia, reduce the harsh penalties for cocaine-based offenses by

eliminating the five-year mandatory minimum sentence and

lowering the maximum sentence to twenty years of imprisonment

for offenses involving less than 28 grams of crack cocaine. To

further address the sentencing disparity between crack cocaine

and powder cocaine offenses, President Barack H. Obama issued

executive grants of clemency for several individuals, including

one for Mr. Mitchell in 2016. As a result, Mr. Mitchell’s total

concurrent sentence was reduced to 210 months of imprisonment.

To date, Mr. Mitchell has served more than fourteen years in

prison, he has not incurred a single disciplinary infraction,

and he has completed various educational and vocational

programs. Under these circumstances, the Court will exercise its

discretion under Section 404(b) of the First Step Act to reduce

his sentence to time-served.

I.   Background

     The factual and procedural background is straightforward.

In 2005, Mr. Mitchell was indicted on five drug and firearm

charges. Indictment, ECF No. 5 at 1-3. 1 The evidence at the five-

day jury trial in 2006 revealed that Mr. Mitchell was inside an




1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
                                2
apartment where law enforcement recovered, among other things,

21 grams or less 2 of crack cocaine. See Gov’t’s Mem. in Aid of

Sentencing, ECF No. 59 at 2; see also Presentence Investigation

Report (“PSR”) at 4 ¶ 8. 3 The jury found Mr. Mitchell guilty on

four of five counts. E.g., United States v. Mitchell, 953 F.

Supp. 2d 162, 163-64 (D.D.C. 2013) (“Mitchell II”); Mitchell v.

United States, 841 F. Supp. 2d 322, 326 n.1 (D.D.C. 2012)

(“Mitchell I”). 4




2 The PSR states that 21 grams of cocaine base were recovered
from the apartment. PSR at 4 ¶ 8; see also Def.’s Sentencing
Mem., ECF No. 58 at 9 n.5 (stating that the quantity of cocaine
base in this case is “21 grams”). The government’s Memorandum in
Aid of Sentencing asserts that the facts at trial established
that law enforcement seized, inter alia, “approximately 14.5
grams of crack cocaine.” Gov’t’s Mem. in Aid of Sentencing, ECF
No. 59 at 2.
3 The United States Probation Office (the “Probation Office”)
prepared the PSR on May 10, 2006, and revised it on July 11,
2006. PSR at 1. The Receipt and Acknowledgement of the PSR was
filed on July 25, 2006. Receipt & Acknowledgment of PSR, ECF No.
40 at 1. The PSR was not filed on the docket. See generally
Criminal Action No. 05-00110.
4 Mr. Mitchell was charged with the following five counts:
(1) 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”); (2) 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”); (3) 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”);
(4) 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 (5) using, carrying, and possessing a firearm during
a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1) (“Count Five”). Mitchell I, 841 F. Supp. 2d at 326
                                3
     Using the 2005 United States Sentencing Guidelines Manual,

the Probation Office calculated Mr. Mitchell’s sentencing

guideline range. PSR at 5 ¶ 12. The Probation Office grouped

Counts One through Four, id. at 5 ¶ 15, and determined that

Mr. Mitchell’s base offense level was 28 since the offense

involved the equivalency of at least 400 kilograms but less than

700 kilograms of marijuana. Mitchell II, 953 F. Supp. 2d at 164

(citing PSR at 5-6 ¶ 17 (citing U.S.S.G. § 2D1.1(a)(3),

(c)(6))). Because Mr. Mitchell was found to be in possession of

two firearms that were related to the offense, the Probation

Office applied a two-level upward adjustment, which adjusted his

offense level to 30. Id. (citing PSR at 6 ¶ 22).

     Mr. Mitchell’s career-offender status increased his

adjusted offense level from 30 to 34. PSR at 6 ¶ 23. He had two

prior convictions—one designated as a “controlled substance

offense” and the other a “crime of violence”—in the Superior

Court of the District of Columbia (“Superior Court”): (1) a 1989

conviction for attempted possession with intent to distribute

cocaine (“PWID”); and (2) a 1997 conviction for attempted

robbery. See Mitchell II, 953 F. Supp. 2d at 164; see also PSR

at 7, 9 ¶¶ 29, 32. The Probation Office calculated his total

offense level of 34 by applying the statutory maximum sentence



n.1. This Court dismissed the fifth count after the jury found
him not guilty on that count. Id. at 326.
                                4
for Mr. Mitchell’s most serious offense—Count Two, which was 40

years—to the career-offender table in Chapter Four of the

Sentencing Guidelines. Mitchell II, 953 F. Supp. 2d at 164. That

table provided that for offenses that have a statutory maximum

of 25 years or more, the offense level is 34 for a “career

offender.” Id. (citing U.S.S.G. § 4B1.1). As a result,

Mr. Mitchell’s criminal history category increased from V to VI.

Id. The Probation Office determined that Mr. Mitchell’s

applicable guideline range was 262 to 327 months. Id. (citing

PSR at 14 ¶ 69 (citing U.S.S.G. § 5(A))). The Court adopted

those calculations. See generally J., ECF No. 71.

     In 2007, the Court sentenced Mr. Mitchell to 120 months of

imprisonment on Count One, 262 months of imprisonment on Count

Two, 240 months of imprisonment on Count Three, and 60 months of

imprisonment on Count Four, to run concurrently for Counts One

through Four, respectively. Mitchell I, 841 F. Supp. 2d at 326

(citing J., ECF No. 71 at 3). Count Two—the crack cocaine

offense—carried a five-year mandatory minimum sentence and a

forty-year maximum sentence. See 21 U.S.C. § 841(b)(1)(B)(iii)

(2005). The Court imposed concurrent terms of supervised release

on Mr. Mitchell with three years on Count One, five years on

Count Two, three years on Count Three, and three years on Count

Four. J., ECF No. 71 at 4. The D.C. Circuit affirmed the Court’s

judgment in 2008. United States v. Mitchell, 304 F. Appx 880,

                                5
881 (D.C. Cir. 2008).

     Since 2009, Mr. Mitchell has sought relief under 28 U.S.C.

§ 2255 and 18 U.S.C. § 3582(c). See, e.g., Mitchell I, 841 F.

Supp. 2d at 333 (denying petitioner’s pro se motion to vacate,

set aside, or correct sentence); Mitchell II, 953 F. Supp. 2d at

165-66 (denying petitioner’s pro se motion for a sentence

reduction under Section 3582(c) because the Fair Sentencing Act,

was not retroactive; transferring petitioner’s pro se motion to

vacate, set aside, or correct sentence to the D.C. Circuit). The

D.C. Circuit granted Mr. Mitchell’s emergency motion for

authorization to file a successive motion pursuant to Section

2255 in light of Johnson v. United States, 135 S. Ct. 2551

(2015), see Order, In re Vernard A. Mitchell, No. 16-3039 (D.C.

Cir. June 23, 2016) (per curiam), but Mr. Mitchell later

withdrew his motion, see Withdrawal of Mot., ECF No. 126 (styled

as a “Notice of Voluntary Dismissal”).

     In 2010, Congress enacted, and President Obama signed into

law, the Fair Sentencing Act, which eliminated the mandatory

minimum sentence and lowered the maximum sentence to twenty

years for offenses involving less than twenty-eight grams of

crack cocaine. See Pub. L. 111-220, § 2, 124 Stat. 2372

(striking “5 grams” and inserting “28 grams” in 21 U.S.C.

§ 841(b)(1)(B)(iii)); see also 21 U.S.C. § 841(b)(1)(C). The

Fair Sentencing Act did not apply retroactively to defendants,

                                6
like Mr. Mitchell, whose convictions and original sentences

became final before the Act was enacted on August 3, 2010.

Dorsey v. United States, 567 U.S. 260, 264 (2012); see also

Mitchell II, 953 F. Supp. 2d at 166. A few years later, a number

of individuals serving sentences under the statutory penalties

for crack cocaine offenses received reduced sentences through

executive grants of clemency. See Def.’s Ex. A, ECF No. 133-2 at

1-9.

       On November 22, 2016, President Obama commuted

Mr. Mitchell’s total sentence of imprisonment to a term of 210

months, leaving intact his term of supervised release and the

conditions imposed by this Court. See, e.g., Def.’s Ex. A, ECF

No. 133-2 at 2-9; Press Release, President Obama Grants

Commutations, The White House (Nov. 22, 2016),

https://obamawhitehouse.archives.gov/the-press-

office/2016/11/22/president-obama-grants-commutations. On

December 6, 2016, this Court entered an Order to that effect.

Order, ECF No. 125 at 1.

       In 2018, the First Step Act became law, giving retroactive

effect to the statutory penalty provisions of the Fair

Sentencing Act. Pub. L. No. 115-391, § 404, 132 Stat. 5194,

5222. Under the First Step Act, a district court has the

discretion to reduce a defendant’s sentence if the court

determines that the defendant is eligible for relief. Id.

                                  7
      On May 14, 2019, Mr. Mitchell filed an emergency motion to

reduce his sentence under Section 404(b) of the First Step Act.

See Def.’s Emergency Mot. to Reduce Sentence (“Def.’s Mot.”),

ECF No. 127. The Court ordered the government to respond to

Mr. Mitchell’s motion, Minute Order of May 16, 2019, and the

government filed its opposition on June 3, 2019, see Gov’t’s

Opp’n, ECF No. 132. Mr. Mitchell filed his reply on June 7,

2019, see Def.’s Reply, ECF No. 133. Mr. Mitchell’s motion is

now ripe and ready for the Court’s adjudication.

II.   Analysis

      Under Section 404(b) of the First Step Act, “[a] court that

imposed a sentence for a covered offense may, on motion of the

defendant . . . impose a reduced sentence as if sections 2 and 3

of the Fair Sentencing Act . . . were in effect at the time the

covered offense was committed.” Pub. L. No. 115-391, § 404(b),

132 Stat. 5194, 5222. “[T]he term ‘covered offense’ means a

violation of a Federal criminal statute, the statutory penalties

for which were modified by section 2 or 3 of the Fair Sentencing

Act . . ., that was committed before August 3, 2010.” Id. §

404(a). In other words, the First Step Act effectively

authorizes a federal district court to retroactively apply the

statutory penalty provisions of the Fair Sentencing Act to a

covered offense, such as the unlawful possession of five grams

or more of crack cocaine with the intent to distribute it, and

                                 8
thereby reduce a defendant’s sentence. United States v. Powell,

360 F. Supp. 3d 134, 138 (N.D.N.Y. 2019).

     In moving for a reduced sentence, Mr. Mitchell advances

three primary arguments. First, he argues that he is eligible

for a sentence reduction of seventy-seven months of imprisonment

and a three-year term of supervised release under Section 404(b)

of the First Step Act because: (1) this Court sentenced him to a

“covered offense”—Count Two—involving “5 grams or more” of crack

cocaine; and (2) the Fair Sentencing Act amended 21 U.S.C. §

841(b)(1)(B) (2005) to remove the five-year mandatory minimum

sentence. Def.’s Mot., ECF No. 127 at 6. Next, Mr. Mitchell

contends that President Obama’s commutation of his sentence does

not affect his eligibility. Id. Finally, Mr. Mitchell urges this

Court to reduce his sentence to seventy-seven months of

imprisonment and three years of supervised release because he no

longer qualifies as a “career offender” under current law that

takes into account a lower Guidelines range. Id. at 7-11.

     The government responds that “[b]ut for the commutation of

his sentence, [Mr. Mitchell] would be eligible for a sentence

reduction under the First Step Act” because he “was sentenced

before August 3, 2010, for a covered offense . . . and

application of the Fair Sentencing Act reduces both his

statutory penalties and his guideline range.” Gov’t’s Opp’n, ECF

No. 132 at 8 (emphasis added). The government argues that a

                                9
reduced sentence for Mr. Mitchell is not warranted because:

(1) his career-offender offense level is now 32; and (2) his

commuted sentence of 210 months of imprisonment reflects the

modified Guidelines range of 210 to 262 months after the Fair

Sentencing Act modified the statutory penalties for his covered

offense. Id. at 9, 13.

     Perhaps realizing that its position as to Mr. Mitchell’s

ineligibility under the First Step Act will not prevail, the

government requests that this Court impose a sentence of “time

served,” id. at 14, rather than Mr. Mitchell’s requested term of

seventy-seven months of imprisonment, to avoid Mr. Mitchell

receiving “credit for ‘overserved time,’ which may affect

resolution of a later violation of supervised release because

the Bureau of Prisons will credit the overserved time toward a

later term of imprisonment for violation of supervised release.”

Id. at 15. The government does “not oppose a reduction in

[Mr. Mitchell’s] term of supervised release to three years” if

the Court finds that he is eligible for a sentence reduction

under the First Step Act. Id. at 14 n.4. In response,

Mr. Mitchell does not oppose a sentence of “time-served.” Def.’s

Reply, ECF No. 133 at 7.

     After explaining the Court’s authority to reduce a sentence

under Section 404 of the First Step Act, the Court will address

each of the parties’ arguments in turn.

                               10
       A. The Court’s Authority to Impose a Reduced Sentence
          Under the First Step Act

     The parties agree that the Court may exercise its

discretion to impose a reduced sentence under the First Step

Act. See Gov’t’s Opp’n, ECF No. 132 at 13 (“Section 404(c) of the

First Step Act makes clear that a sentence reduction is

discretionary.”); see also Def.’s Reply, ECF No. 133 at 18-19

(stating that a district court’s power under the First Step Act

is “broad because Congress anticipated complicated cases and

wanted the courts to have discretion and flexibility to

determine the appropriate remedy for defendants who were

sentenced under laws that are now widely recognized as

misguided, unjust, and racially motivated.”). Indeed, “Congress

clearly intended relief under § 404 of the First Step Act to be

discretionary[.]” United States v. Rose, No. 03-CR-1501 (VEC),

2019 WL 2314479, at *7 (S.D.N.Y. May 24, 2019).

     Section 404(c) of the First Step Act expressly provides

that “[n]othing in this section shall be construed to require a

court to reduce any sentence pursuant to this section.” Pub. L.

No. 115-391, § 404(c), 132 Stat. 5194, 5222. The First Step Act

places two limits on the district court’s authority. Id. A

district court “shall” not reduce a sentence: (1) “if the

sentence was previously imposed or previously reduced in

accordance with the amendments made by sections 2 and 3 of the


                                11
Fair Sentencing Act[;]” and (2) “if a previous motion made under

this section to reduce the sentence was, after the date of

enactment of this Act, denied after a complete review of the

motion on the merits.” Id. Nothing else in Section 404 limits

the Court’s authority to reduce a sentence. See id.

     It is undisputed that “neither limitation applies in this

case.” Def.’s Mot., ECF No. 127 at 3 n.1; see generally Gov’t’s

Opp’n, ECF No. 132. Nonetheless, the government argues that “in

the context of this limited proceeding under 18 U.S.C. §

3582(c), the Court does not have authority to grant any

reduction.” Gov’t’s Opp’n, ECF No. 132 at 1. Section

3582(c)(1)(B) provides that “the court may modify an imposed

term of imprisonment to the extent otherwise expressly permitted

by statute or by Rule 35 of the Federal Rules of Criminal

Procedure[.]” 18 U.S.C. § 3582(c)(1)(B) (emphasis added).

Mr. Mitchell argues that “[i]t is immaterial whether this motion

proceeds via § 3582(c)(1)(B) or through the independent grant of

authority given [to] this Court in the First Step Act itself”

because the First Step Act expressly allows a district court to

“‘impose a reduced sentence’ . . . ‘as if sections 2 and 3 of

the Fair Sentencing Act . . . were in effect at the time the

covered offense was committed[.]’” Def.’s Reply, ECF No. 133 at

10 (quoting Pub. L. No. 115-391, § 404(b), 132 Stat. 5194,

5222).

                               12
      Section 3582(c)(2) “authorizes a district court to reduce

an otherwise final sentence pursuant to a Guidelines amendment

if a reduction is consistent with the [United States Sentencing]

Commission’s policy statements.” Dillon v. United States, 560

U.S. 817, 818 (2010); see also 18 U.S.C. § 3582(c)(2).

Acknowledging that “the First Step Act does not incorporate

§ 3582(c)(2),” Gov’t’s Opp’n, ECF No. 132 at 11, the government

contends that “[t]he Court’s ability to reduce a sentence in

this context is limited[,]” id. at 5 (citing Dillon, 560 U.S. at

824). The government asserts that the First Step Act, “using the

same term—‘reduce[]’—that appears in “[Section 3582(c)(2)] does

not permit ‘further sentencing’ or a ‘resentenc[ing].’” Id. at

11 (quoting Dillon, 560 U.S. at 825 (citation omitted)). The

government asks this Court to rely on the “analogous

circumstances” in Section 3582(c)(2) proceedings for any

reduction of Mr. Mitchell’s sentence. Id. at 10. Mr. Mitchell

argues that Section 3582(c)(2) is irrelevant because “the

Sentencing Commission is not involved” in this case and the text

of the First Step Act does not reference the Sentencing

Guidelines or policy statements. Def.’s Reply, ECF No. 133 at

11.

      Courts have reached different conclusions on the open

question of whether Section 404(b) motions are governed by



                                13
18 U.S.C. § 3582(c). 5 This Court joins the courts that have

decided that the issue need not be resolved in order for the

Court to grant relief under the First Step Act. See, e.g.,

United States v. Sampson, 360 F. Supp. 3d 168, 170 (W.D.N.Y.

2019) (“The legal issues raised by the parties may need to be

resolved at some point, but they need not all be decided now, in

this case.” (emphasis in original)). In Sampson, the court

recognized that the dispute as to whether 18 U.S.C. § 3582(c)

applies to Section 404(b) motions was chiefly one about “whether

a full resentencing was required, or whether a simple


5 Some courts have concluded that Section 404(b) motions fall
under either § 3582(c)(1)(B) or § 3582(c)(2). See, e.g., United
States v. Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2
(W.D.N.Y. Mar. 6, 2019) (construing “motion as one brought under
18 U.S.C. § 3582 (c)(1)(B), which permits modification of an
imposed term of imprisonment to the extent expressly permitted
by statute.”); United States v. Lewis, No. CR 08-0057 JB, 2019
WL 2192508, at *19 (D.N.M. May 21, 2019) (“First Step Act
motions for sentence reduction are 18 U.S.C. § 3582(c)(2)
proceedings.”). Other courts have held that § 3582(c)(2) or
3582(c)(1)(B) does not govern motions brought under the First
Step Act. See, e.g., United States v. Martinez, No. 04-CR-48-20
(JSR), 2019 WL 2433660, at *3 (S.D.N.Y. June 11, 2019) (holding
that § 3582(c)(2) did not govern the defendant’s case because
his “sentencing range was lowered by statute, not by the
Commission.”); Rose, 2019 WL 2314479, at *6 (“Section
3582(c)(1)(B) is . . . not itself a source of authority for
sentence modifications, nor does it delineate the scope of what
the district court should consider when resentencing is
authorized by another provision.”); United States v. Coleman,
No. 04-CR-278-PP, 2019 WL 1877229, at *6 (E.D. Wis. Apr. 26,
2019) (finding that § 3582(c)(2) was inapplicable because “[t]he
defendant is not asking for a reduced sentence “based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o),” under §
3582(c)(2).”).
                                14
modification of sentence would suffice.” Id. at 171. The court

rejected any request for a full resentencing to the extent the

defendant sought a formal resentencing for a specified term of

imprisonment because “the appropriate remedy [was] simply to

reduce defendant’s sentence to the time he has already served.”

Id.

      This Court takes a similar approach. Mr. Mitchell does not

seek a full, de novo, or plenary resentencing. 6 See generally

Def.’s Reply, ECF No. 133. Although Mr. Mitchell initially

sought a specified term of seventy-seven months of imprisonment,

Def.’s Mot., ECF No. 127 at 2, he does not oppose a sentence of

“time-served,” Def.’s Reply, ECF No. 133 at 7. Upon a finding of

eligibility, the government requests that the Court impose a

sentence of “time-served” for Mr. Mitchell. Gov’t’s Opp’n, ECF

No. 132 at 14-15. The government cites case law for the

proposition that the Court should avoid imposing “a term of

months [of imprisonment] less than the period that defendant has

already served[.]” Id. (citing United States v. Laguerre, No.

02-cr-30098, 2019 WL 861417, at *3-*4 (W.D. Va. Feb. 22, 2019);

United States v. Jackson, No. 5:03-CR-30093, 2019 WL 613500, at

*2 (W.D. Va. Feb. 13, 2019)). The Court agrees.


6 The government argues that Section 404 of the First Step Act
does not authorize a plenary resentencing. Gov’t’s Opp’n, ECF
No. 132 at 10. Mr. Mitchell has conceded this point by not
responding to it. See generally Def.’s Reply, ECF No. 133.
                                15
       B. Mr. Mitchell Is Eligible for a Sentence Reduction
          Under the First Step Act

     The government acknowledges that Mr. Mitchell would be

eligible for a sentence reduction under the First Step Act

because he was sentenced before August 3, 2010, for a covered

offense, and application of the Fair Sentencing Act reduces both

his statutory penalties and his Guidelines range. Gov’t Opp’n,

ECF No. 132 at 8. But the government argues that the First Step

Act does not apply to Mr. Mitchell’s commuted sentence. 7 Id. As

correctly stated by the government, “a number of courts have

rejected this argument.” Id. at 8 n.1 (collecting cases).

According to Mr. Mitchell, “[e]very court to address this claim

has rejected it.”   Def.’s Reply, ECF No. 133 at 1.

     The government’s argument that President Obama imposed a

“new sentence” on Mr. Mitchell through commutation is

unpersuasive. See Gov’t’s Opp’n, ECF No. 132 at 8. To support

its position, the government relies on United States v. Surratt,

855 F.3d 218, 219 (4th Cir. 2017) (en banc). In Surratt, the

Fourth Circuit dismissed as moot a habeas challenge to a


7 The Court observes that courts have rejected this argument.
See, e.g., United States v. Razz, No. 05-80011-CR, 2019 WL
2204068, at *8 (S.D. Fla. May 22, 2019) (rejecting “the
Government’s “presidentially-imposed” sentence argument[.]”);
United States v. Pugh, No. 5:95 CR 145, 2019 WL 1331684, at *3
(N.D. Ohio Mar. 25, 2019) (same); United States v. Biggs, No. 05
CR 316, 2019 WL 2120226, at *2 (N.D. Ill. May 15, 2019) (same);
United States v. Dodd, 372 F. Supp. 3d 795, 798 (S.D. Iowa 2019)
(same).
                                16
mandatory life sentence for a crack cocaine offense after a

presidential commutation. Id. However, the mootness doctrine

does not apply to Mr. Mitchell’s situation because “[a] case

becomes moot . . . only when it is impossible for a court to

grant any effectual relief whatsoever to the prevailing party.”

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)

(citation and internal quotation marks omitted); see also United

States v. Walker, No. 1:94-CR-5, 2019 WL 1226856, at *2 (N.D.

Ohio Mar. 15, 2019) (finding that “the Fourth Circuit’s

application of the mootness doctrine in Surratt does not apply

here” because there was relief available for the defendant under

the First Step Act). Accordingly, the First Step Act makes it

possible for the Court to grant relief to Mr. Mitchell.

     The government’s reliance on the concurring opinion in

Surratt is equally unpersuasive. The concurring opinion stated

that the petitioner was “no longer serving a judicially imposed

sentence, but a presidentially commuted one.” Surratt, 855 F.3d

at 219 (Wilkinson, J., concurring). That statement is

inconsistent with Supreme Court precedent. See Nixon v. United

States, 506 U.S. 224, 232 (1993).

     The President’s pardon power is “in no sense an overturning

of a judgment of conviction by some other tribunal; it is ‘[a]n

executive action that mitigates or sets aside punishment for a

crime.’” Id. (quoting Black’s Law Dictionary 1113 (6th ed.

                               17
1990)) (emphasis in original); see also United States v.

Buenrostro, 895 F.3d 1160, 1164-65 (9th Cir. 2018) (“Like a full

pardon, a presidential commutation does not overturn the

sentence imposed by the sentencing court. It simply ‘mitigates

or sets aside punishment.’”) (quoting Nixon, 506 U.S. at 232)).

     Several courts have ruled that the First Step Act applies

to defendants, like Mr. Mitchell, who received presidential

commutations. See, e.g., Dodd, 372 F. Supp. 3d at 798 (“[T]he

existence of a grant of clemency does not foreclose relief under

the First Step Act.”); Biggs, 2019 WL 2120226, at *2 (same). The

text of the First Step Act does not prohibit relief for commuted

sentences. Biggs, 2019 WL 2120226, at *2 (“Because Congress

chose not to exempt commuted sentences, the court declines to

read such an exemption into the statute.”). Because President

Obama’s executive grant of clemency for Mr. Mitchell did not

impose a new sentence, but only reduced the original one, the

Court therefore finds that Mr. Mitchell is eligible for relief

under the First Step Act.

       C. Mr. Mitchell Is Entitled to a Reduced Sentence of
          “Time-Served”

     Having determined that Mr. Mitchell is eligible for relief

under the First Step Act, the Court must determine the extent to

which Mr. Mitchell’s sentence will be reduced. To reach that

determination, the parties agree that this Court may consider


                               18
the sentencing factors set forth in 18 U.S.C. § 3553(a) and any

post-sentencing conduct. See, e.g., Gov’t’s Opp’n, ECF No. 132

at 14 (“[U]nder Pepper v. United States, 562 U.S. 476 (2011),

the Court may consider post-offense conduct, either positive or

negative, in assessing whether to adjust a previously imposed

sentence.”); Def.’s Mot., ECF No. 127 at 10; Def.’s Reply, ECF

No. 133 at 9.

     “Importing the standard set forth in § 3553(a) makes

sentencing proceedings under the First Step Act more predictable

to the parties, more straightforward for district courts, and

more consistently reviewable on appeal.” Rose, 2019 WL 2314479,

at *8. In applying the factors set forth in 18 U.S.C. § 3553(a)

to guide the exercise of discretion under the First Step Act,

some courts have relied on the Supreme Court’s decision in

Pepper to consider a defendant’s post-sentencing rehabilitation

and conduct. See Rose, 2019 WL 2314479, at *8; see also United

States v. Nance, No. 8:08CR449, 2019 WL 2436210, at *3 (D. Neb.

June 10, 2019). In Pepper, the Supreme Court held that “when a

defendant’s sentence has been set aside on appeal, a district

court at resentencing may consider evidence of the defendant’s

postsentencing rehabilitation . . . .” 562 U.S. at 481. Courts

have interpreted the principle articulated in Pepper to permit

district courts to consider post-sentencing conduct evidence

that “does not always benefit the defendant” and “evidence of

                               19
bad acts occurring after the defendant was originally

sentenced.” Rose, 2019 WL 2314479, at *8; see also Nance, 2019

WL 2436210, at *3 (stating that consideration of “a defendant’s

post-incarceration conduct when exercising discretion to reduce

a defendant’s term of incarceration due to retroactive changes

in statutes or sentencing guidelines” is consistent with

Pepper). The Court is persuaded that consideration of

Mr. Mitchell’s post-sentencing conduct and the factors set forth

in 18 U.S.C. § 3553(a) is appropriate under Section 404(b) of

the First Step Act. See Rose, 2019 WL 2314479, at *8-9.

     Because Mr. Mitchell’s crack cocaine offense qualifies as a

covered offense, e.g., Def.’s Mot., ECF No. 127 at 6; Gov’t’s

Opp’n, ECF No. 132 at 8-9, the Court may impose a reduced

sentence as if Sections 2 and 3 of the Fair Sentencing Act were

in effect at the time the covered offense was committed in 2005.

See Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.

Mr. Mitchell possessed 21 grams or less of crack cocaine after

prior Superior Court convictions. Mr. Mitchell would have faced

no mandatory minimum sentence and a maximum sentence of twenty

years of imprisonment if the Fair Sentencing Act had been in effect

in 2005. According to the government, the statutory penalties are

set by 21 U.S.C. § 841(b)(1)(C) instead of § 841(b)(1)(B), but

Mr. Mitchell remains a “career offender” because his offense level

is calculated by the career-offender guideline. Gov’t’s Opp’n, ECF


                                20
No. 132 at 9. And “his resulting guideline range is now 210 to 262

months instead of 262 to 327 months.” Id.

     Mr. Mitchell disagrees, arguing that his Guidelines range

is seventy-seven to ninety-six months of imprisonment without

the career-offender enhancement under current law because his

prior Superior Court convictions do not qualify as predicates

for the career-offender designation under the current

Guidelines. Def.’s Mot., ECF No. 127 at 7-9. In the alternative,

Mr. Mitchell asserts that the Court may, “as the government

asks, calculate his Guidelines range under an obsolete

interpretation of the law from the time of his original

sentencing (i.e., with an erroneous career offender

enhancement), and then vary downwards . . . .” Def.’s Reply, ECF

No. 133 at 7.

     Today, Mr. Mitchell would not qualify as a career offender

under current law, 8 but he would qualify as a career offender



8 The law of this Circuit is clear: attempted robbery and
attempted drug distribution no longer qualify as predicates for
career-offender status. See, e.g., United States v. Winstead,
890 F.3d 1082, 1090–92 (D.C. Cir. 2018) (holding that attempted
drug distribution does not qualify as a predicate offense for
career-offender status); United States v. Sheffield, 832 F.3d
296, 315 (D.C. Cir. 2016) (holding that “D.C.’s attempted
robbery statute simply does not qualify as a crime of violence
as a categorical matter.”). The parties agree that, if the Court
sentenced Mr. Mitchell today, his prior Superior Court
convictions–the 1989 PWID and the 1997 attempted robbery—would
not qualify as predicates for the career-offender designation
because those prior offenses no longer meet the definition of
“controlled substance offense” and “crime of violence.” See
                                21
under the law at the time of his original sentencing. The

question remains, however, whether this Court may calculate

Mr. Mitchell’s Guidelines range with the career-offender

enhancement. Courts presented with this issue have taken

different approaches. Compare Coleman, 2019 WL 1877229, at *8

(“[The First Step Act] does not authorize the court to disturb

[the sentencing judge’s] conclusion that the defendant qualified

as a career offender.”), with United States v. Anthony,

No. 6:07-CR-00008-1, 2019 WL 2216548, at *2 (W.D. Va. May 22,

2019) (imposing a “timed-served” sentence where “[u]nder the

First Step Act, the statutory range for Defendant’s offense,

taking into account Defendant’s career offender status, would be

188–235 months imprisonment.”).

     Applying the First Step Act, courts have imposed reduced

sentences of “timed-served” for defendants below the career-

offender Guidelines range. See, e.g., United States v. Newton,

No. 5:02-CR-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1,

2019) (granting the defendant’s motion under the First Step Act

where he served 198 months in custody; imposing a “time-served”

sentence; and finding that “under the current Sentencing

Guidelines and the 18 U.S.C. § 3553 factors, a sentence beneath

[the] Guideline[s] range [of 262-327 months] [was] warranted.”);



Def.’s Mot., ECF No. 127 at 7-8; see also Gov’t’s Opp’n, ECF No.
132 at 9.
                                  22
United States v. Pierre, 372 F. Supp. 3d 17, 23 (D.R.I. 2019)

(imposing “time-served” sentence where the defendant’s

Guidelines range was 262 to 327 months’ imprisonment at the time

of sentencing).

     In United States v. Biggs, the defendant was a “career

offender” with a Guidelines range of 360 months to life

imprisonment, and he served more than fourteen years in prison.

2019 WL 2120226, at *2. The court noted that his “armed career

criminal” designation was “cause for concern about recidivism,”

but that designation “was based on drug crimes rather than

crimes of violence.” Id. at *4. The court explained: “Because

the Fair Sentencing Act and the First Step Act reflect

Congress’s judgment that shorter prison sentences adequately

reflect the seriousness of crack cocaine offenses, reduction of

Biggs’s sentence aligns the statutory purposes of sentencing

with the goal of the reform legislation.” Id. at *4. The court

recognized that the defendant was a “model inmate, obtaining his

GED and a certificate of apprenticeship in welding. He incurred

only three minor disciplinary infractions over the last fourteen

years in custody.” Id. The court imposed a reduced sentence of

“time served” because it was “sufficient but not greater than

necessary to accomplish the sentencing goals in 18 U.S.C. §

3553(a).” Id.

     Mr. Mitchell’s case is even stronger. He has incurred no

                               23
disciplinary infractions over his last fourteen years in prison.

See Def.’s Reply, ECF No. 133 at 17; see also Gov’t’s Opp’n, ECF

No. 132 at 14 (“Commendably, [Mr. Mitchell] has incurred no

disciplinary infractions and has taken advantage of various

rehabilitative programs while serving his sentence in this

case.”). Furthermore, Mr. Mitchell has obtained his GED and

taken a variety of educational and vocational courses. See,

e.g., Def.’s Mot., ECF No. 127 at 10; Def.’s Ex. A, ECF No. 127-

2 at 1-5; Def.’s Ex. B, ECF No. 127-2 at 7; Def.’s Ex. B, ECF

No. 133-2 at 11; Def.’s Ex. D, ECF No. 133-2 at 15. Upon

consideration of the factors set forth in 18 U.S.C. § 3553(a)

and Mr. Mitchell’s post-sentencing rehabilitation, the Court

will exercise its discretion under the First Step Act to impose

a reduced sentence of “time-served,” which is sufficient and not

longer than necessary to achieve the goals of sentencing. 9 The

Court also imposes a reduction in Mr. Mitchell’s term of

supervised release to three years.

     Finally, the parties disagree about whether the Court

should delay Mr. Mitchell’s release for a period of five days




9 The Court need not hold a hearing on Mr. Mitchell’s motion
because he agreed to “waive his right to a hearing and presence
for resentencing if the Court wishes to impose a sentence of
time served or less, because such a hearing would delay his
release.” Def.’s Reply, ECF No. 133 at 13; see also Gov’t’s
Opp’n, ECF No. 132 at 12 (stating that a hearing is not required
under Section 404 of the First Step Act).
                                24
from the date of the Court’s Order. See Gov’t’s Opp’n, ECF No.

132 at 15 n.5; see also Def.’s Reply, ECF No. 133 at 19-20.

The government argues that the five-day delay is warranted

because:

           This period will enable the Bureau of Prisons
           (1) to review the defendant for possible civil
           commitment as a sexually dangerous person, as
           required by 18 U.S.C. § 4248; (2) to notify
           victims and witnesses of the release of an
           offender as required by 18 U.S.C. § 3771; (3) to
           notify law enforcement officials and sex
           offender registration officials of the release
           of a violent offender or sex offender pursuant
           to 18 U.S.C. §§ 4042(b) and (c); and (4) to
           permit adequate time to collect DNA samples
           pursuant to 42 U.S.C. § 14135a. This period of
           time also will ensure that BOP personnel have
           sufficient time to present defendant with
           documentation regarding his obligations while on
           supervised release, thereby minimizing the
           chance that defendant is released without an
           adequate understanding of his post-release
           obligations. This will inure to defendant’s
           benefit and will also promote public safety.

Gov’t’s Opp’n, ECF No. 132 at 15 n.5. Mr. Mitchell responds that

“there are no allegations of sexual misconduct and no victims to

notify.” Def.’s Reply, ECF No. 133 at 20. According to

Mr. Mitchell, Federal Public Defender offices across the nation

have reported that the “[Bureau of Prisons] rarely needs any

more than [one] or [two] days for release planning” in First

Step Act cases. Id. In consideration of the cases in which

courts have delayed the execution of defendants’ releases, see

Gov’t’s Opp’n at ECF No. 132 at 15 n.5 (collecting cases), the

Court will direct the Bureau of Prisons to delay execution of

                                 25
the Court’s Order for no more than two calendar days to allow

the Bureau of Prisons to make the appropriate and necessary

arrangements for Mr. Mitchell’s release.

III. Conclusion

     For the reasons set forth above, the Court GRANTS

Mr. Mitchell’s Emergency Motion to Reduce Sentence Pursuant to

Section 404(b) of the First Step Act. Mr. Mitchell’s previously

imposed total sentence of imprisonment is reduced to time-

served, and his previously imposed concurrent term of supervised

release is reduced to three years. Except as otherwise provided,

all provisions of the Judgment, ECF No. 71, and the Order, ECF

No. 125, shall remain in effect. The Bureau of Prisons is

authorized to delay the execution of the Court’s Order for no

more than two calendar days after its issuance. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED

Signed:   Emmet G. Sullivan
          United States District Judge
          June 27, 2019




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