08-5267-cr
U nited States v. M itchell




                                   UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT


                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1.
When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix
or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy
of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 22nd day of June, two thousand ten.

PRESENT:
            ROGER J. MINER,
            ROBERT D. SACK,
            PETER W. HALL,
                        Circuit Judges.
______________________________________________

UNITED STATES OF AMERICA,
                                             Appellee,

                              v.                                                 No. 08-5267-cr

KEITH D. MOODY, also known as Lil-Man,
                               Defendant,

ANTHONY L. MITCHELL, also known as Tone,
                              Defendant-Appellant.
______________________________________________



FOR APPELLEE:                                         ELIZABETH S. RIKER (John M. Katko, of
                                                      counsel), Assistant United States Attorneys, for
                                                      Andrew T. Baxter, United States Attorney for the
                                                      Northern District of New York, Syracuse, NY.

FOR DEFENDANT-APPELLANT:                              GEORGIA J. HINDE, New York, NY.

                                                         1
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Mordue, C.J.). UPON DUE CONSIDERATION, it is hereby ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Anthony L. Mitchell, who pleaded guilty to one count of violating

21 U.S.C. § 846 by conspiring to distribute and to possess with intent to distribute more than

fifty grams of cocaine base or “crack,” claims that the district court erred in imposing a sentence

of 140 months’ imprisonment. We assume the parties’ familiarity with the facts, procedural

context, and specification of appellate issues.

       Mitchell argues that his sentence of 140 months was unreasonable. We review a district

court’s sentencing determination for procedural and substantive reasonableness, a standard “akin

to review for abuse of discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

An appellate court

       must first ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range,
       treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
       factors, selecting a sentence based on clearly erroneous facts, or failing to
       adequately explain the chosen sentence—including an explanation for any
       deviation from the Guidelines range.

Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing for substantive reasonableness, an

appellate court must “take into account the totality of the circumstances, including the extent of

any variance from the Guidelines range.” Id. We “may consider the extent of the deviation, but

must give due deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Id.

       After careful review of Mitchell’s arguments and the appellate record, we hold that the

district court did not abuse its discretion in sentencing him to 140 months’ imprisonment.

Mitchell first argues that the district court abused its discretion because it did not fully appreciate

                                                  2
the extent of its discretion, under Kimbrough v. United States, 552 U.S. 85 (2007), to reduce his

sentence based on the sentencing disparity between cocaine base and cocaine powder offenses.

We disagree.

       In Kimbrough, the Supreme Court held that a policy disagreement with the cocaine

powder / crack cocaine disparity in the Guidelines can be grounds for a non-Guidelines sentence.

Kimbrough, 552 U.S. at 109-10. In United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), we

observed that our decision in United States v. Castillo, 460 F.3d 337 (2d Cir. 2006), “may have

been over-read or misread to inhibit any deviation” from the policy and that “when a district

court sentenced a defendant for a crack cocaine offense before Kimbrough, there was an

unacceptable likelihood of error.” Regalado, 518 F.3d at 147. In Regalado, the defendant, at the

time of his sentencing in the district court, did not request a deviation, and Castillo had not yet

been decided. Regalado, 518 F.3d at 146. The Court therefore employed a remand similar to

that in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), for the district court to determine

whether it would have imposed the same sentence had it been aware of the discretion accorded it

under Kimbrough. Regalado, 518 F.3d at 149.

       In the instant case, however, Mitchell was sentenced after Kimbrough was issued1 and

there is nothing in the record that suggests that the district court was unaware of Kimbrough’s

significance as it relates to cocaine base offenses. We have held that in the absence of evidence

to the contrary, a sentencing judge is presumed to know the state of sentencing law,2 see United


       1
           Mitchell was sentenced on October 23, 2008.
       2
         Regalado is not to the contrary. There, we held that cases involving the sentencing
disparity between the cocaine base and cocaine powder with the “unusual” posture of coming
after United States v. Booker, 543 U.S. 220 (2005), and before Castillo justified “a narrow and
limited exception to our general rule that sentencing courts are presumed to know and follow the
applicable sentencing law.” Regalado, 518 F.3d at 148.

                                                  3
States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008), and that a district court’s silence on the

issue of the cocaine powder / crack cocaine disparity is not indicative of its approach to

sentencing, see United States v. Keller, 539 F.3d 97, 101 (2d Cir. 2008) (stating that the Court

has “disavowed formulaic requirements and robotic incantations for discharging a court’s duties

during sentencing” (citations and internal quotation marks omitted)).

       Each of the cases Mitchell cites involved defendants who were sentenced prior to

Kimbrough, and each decision was based in substantial part on the fact that the sentencing came

at a time when the law of this Circuit was unsettled. See, e.g., id. (“[A]t the time of sentencing in

this case, our own case law prohibited a district court from imposing a non-Guidelines sentence

solely on the basis of that court’s disagreement with the 100-to-1 ratio provided by statute.”).

That is simply not the case here.3 We therefore conclude that the district court did not abuse its

discretion as to the effect of the Supreme Court’s ruling in Kimbrough.

       Mitchell next argues that the district court abused its discretion in determining his

criminal history category. The presentence report (“PSR”) assessed ten points for seven

misdemeanor convictions and one violation that occurred between 1996 and 2002, and two

additional points for a felony conviction in 1996 for criminal possession of a weapon. Based on

this history, the PSR calculated that Mitchell had a criminal history category of V. Mitchell

submitted a sentencing memorandum moving for a criminal history category departure. The

district court denied this motion.




       3
        We reject the argument that sentencings that occurred in the time between Kimbrough
and Spears v. United States, --- U.S. ---, 129 S. Ct. 840 (2009) (per curiam), are subject to
remand due to a major change in the law. Spears did not alter the law in any way; rather, it
merely “confirmed” Kimbrough’s core holding. See, e.g., United States v. Arrelucea-Zamudio,
581 F.3d 142, 157 (3d Cir. 2009).

                                                 4
       Mitchell has admitted to having “too many prior convictions,” and immediately before

his arrest for the instant offense a search uncovered approximately 91 grams of crack cocaine,

cocaine, marijuana, approximately $60,000 in cash, and ammunition. The district court carefully

considered this history and rejected the very arguments Mitchell now makes before this court,

stating that Criminal History Category V was “an accurate reflection of [Defendant-Appellant’s]

criminal history.” We therefore find no abuse of discretion in that court’s decision to assign a

criminal history category of V.

       Finally, it appears that Mitchell challenges his sentence on substantive grounds.

Although his exact arguments are not entirely clear from his brief, such a challenge fails in any

event. Given his adjusted offense level of 33, the PSR concluded that Mitchell faced a potential

Guidelines range of 210 to 262 months’ imprisonment. After a government motion

recommending a three-level downward departure, later increased to a four-level downward

departure, Mitchell’s adjusted offense level was 29 and his Guidelines imprisonment range was

140-175 months. The district court sentenced Mitchell to 140 months, at the very bottom of this

range. Mitchell himself waived the right to appeal any sentence lower than 135 months, strongly

suggesting that any sentence at that level would be substantively reasonable. His actual sentence

was only five additional months, and there is ample evidence in the record—including the fact

that he appeared to take a leadership role in the drug dealing he engaged in with his codefendant

Keith Moody—that supports the reasonableness of the sentence.

       Accordingly, the judgment of the district court is AFFIRMED.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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