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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 3, 2013

                                       No. 12-40336                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

WILLIAM DOUG MITCHELL,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                          No. 4:10-CR-57-MAC-ALM-26


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In 2010, a grand jury indicted William Douglas Mitchell on two counts of
mail fraud and one count of conspiracy to commit mail and wire fraud.
Following a jury trial, Mitchell was convicted and sentenced on all three counts.
Mitchell appeals, arguing that there was insufficient evidence to sustain his
convictions, and that the district court reversibly erred in sentencing him. For
the following reasons, we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 12-40336

           I. FACTUAL AND PROCEDURAL BACKGROUND
      On March 10, 2010, a grand jury returned an indictment charging William
Mitchell and thirty-nine others with various offenses arising from their
participation in a mortgage fraud scheme. The indictment charged Mitchell, in
particular, with two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and
2, and one count of conspiracy to commit mail and wire fraud in violation of 18
U.S.C. § 1349. Following a jury trial, Mitchell was convicted on all three counts.
      The evidence adduced at trial showed that, between February 2004 and
July 2007, forty individuals—among them real estate agents, mortgage brokers,
escrow officers, title company attorneys, property appraisers, and straw
buyers—conspired to defraud numerous lending institutions of over $20 million
by convincing them to approve mortgage loans for residential properties for
which the appraised values had been fraudulently inflated. The scheme was
orchestrated by John Barry, who controlled or directed the actions of each of the
conspirators through a series of shell companies he owned. At Barry’s direction,
Mitchell, a certified and licensed real estate appraiser, allegedly inflated the
appraised value of at least thirty-five properties, directly causing over $8 million
in losses to lending institutions.
      The fraud was perpetrated in one of two ways. The first method involved
a single transaction in which straw purchasers recruited by Barry agreed to buy
homes for significantly greater sums than the homes were worth, and for
significantly higher prices than legitimate homeowners were seeking.
Appraisers falsely inflated the appraised value of the targeted properties to
convince lending institutions to finance the sales. With the assistance of real
estate agents, mortgage brokers, and title company employees, straw purchasers
obtained inflated mortgage loans based on false representations in loan
applications regarding their income, assets, and intent to occupy the properties.
The difference between a legitimate seller’s asking price and the inflated loan

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amount—which largely was based on the false appraisal—provided the
fraudulently-obtained proceeds to the conspirators.
      In the second method, conspirators again purchased homes from legitimate
sellers, but then “flipped” them by selling the properties in a second, often
simultaneous, transaction to straw buyers who paid substantially inflated prices.
As in the first scheme, lending institutions funded the purchases based on the
fraudulent appraisals of the homes’ values and the false representations
provided by the straw buyers in loan applications.          Because the original
transactions often closed simultaneously with the second, “flipped” transactions,
the latter purchases usually financed the former purchases. The difference
between the original sale price and the second sale price provided the
conspirators’ fraudulent proceeds.
      At trial, the government presented extensive evidence to advance its
theory that Mitchell played a critical role in the conspiracy by artificially
inflating the property valuations in his appraisals. The government also argued
that Mitchell was instrumental in concealing the fraud, insofar as he used the
mails or forms of wire communication to submit false or materially misleading
documents to lending institutions. In return for his appraisals, Mitchell received
approximately $52,000, either directly from Barry or from one of Barry’s
companies. Mitchell did not disclose these proceeds to the lending institutions,
though he routinely certified to them that he had “no present or prospective
personal interest or bias with respect to the participants in the transaction,” and
that his “compensation for performing . . . [the] appraisals was not conditioned
on any agreement or understanding, written or otherwise, that [he] would report
or present analysis supporting a predetermined specific value.”
      At the conclusion of trial, a jury found Mitchell guilty of two counts of mail
fraud and one count of conspiracy to commit mail and wire fraud. On March 27,
2012, the district court sentenced him to 120 months’ imprisonment for each

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count, with the sentences to run concurrently. Mitchell also was ordered to pay
restitution in the amount of $8,245,423.
      On April 18, 2012, the district court held another hearing at which it
ensured that the withdrawal of Mitchell’s trial attorney after the sentencing
hearing had not adversely impacted Mitchell’s rights, and that recently decided
Supreme Court cases were not implicated in Mitchell’s case. By that time, Barry
had been sentenced to a term of 180 months. In light of Barry’s sentence, the
district court expressed that, “in hindsight,” it had reservations about Mitchell’s
sentence. Although the court expressed its view that Mitchell’s sentence was
“reasonable” and still “legal,” it also stated “for the record that were [it] to
sentence [Mitchell] today, [it] would sentence him to about 84 months.”
Ultimately, however, the court concluded that did not have the authority “to sua
sponte reduce Mr. Mitchell’s sentence.”
      Mitchell appeals, alleging two errors. First, he argues that there was
insufficient evidence for the jury to find him guilty. Second, Mitchell asserts
that the district court erred in sentencing him. We will address each of these
contentions in turn.
                                 II. ANALYSIS
A.    Evidentiary Sufficiency
      1.    Standard of Review
      Mitchell properly preserved his challenge to the sufficiency of the evidence
by moving for a judgment of acquittal under Federal Rule of Criminal Procedure
29 and renewing that motion at the close of evidence. See United States v. Frye,
489 F.3d 201, 207 (5th Cir. 2007). “This court reviews preserved challenges to
the sufficiency of the evidence de novo.” United States v. Grant, 683 F.3d 639,
642 (5th Cir. 2012). “When reviewing the sufficiency of the evidence, we view all
evidence, whether circumstantial or direct, in the light most favorable to the
government, with all reasonable inferences and credibility choices to be made in

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support of the jury’s verdict.” United States v. Ford, 558 F.3d 371, 375 (5th Cir.
2009). On review, the question is whether “a rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Seale, 600 F.3d 473, 496 (5th Cir. 2010). “The evidence need not
exclude every reasonable hypothesis of innocence or be completely inconsistent
with every conclusion except guilt, so long as a reasonable trier of fact could find
that the evidence established guilt beyond a reasonable doubt.” United States v.
Moser, 123 F.3d 813, 819 (5th Cir. 1997). A jury, in other words, “is free to
choose among reasonable constructions of the evidence.”          United States v.
Pigrum, 922 F.2d 249, 254 (5th Cir. 1991). Accordingly, our review “is highly
deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.
2002).
      2.    Conspiracy to Commit Mail and Wire Fraud Conviction
            a.     Applicable Law
      As discussed, Mitchell was convicted under 18 U.S.C. § 1349 of one count
of conspiracy to commit mail and wire fraud. To establish a conspiracy to
commit mail and wire fraud, the government must prove that: (1) two or more
persons made an agreement to commit fraud; (2) the defendant knew the
unlawful purpose of the agreement; and (3) the defendant joined in the
agreement willfully, that is, with the intent to further the unlawful purpose. See
Grant, 683 F.3d at 643; Ford, 558 F.3d at 375. “An agreement may be inferred
from concert of action, voluntary participation may be inferred from a collection
of circumstances, and knowledge may be inferred from surrounding
circumstances.” Grant, 683 F.3d at 643 (quoting United States v. Stephens, 571
F.3d 401, 404 (5th Cir.2009)).
      Turning to the substantive crimes, mail fraud entails: “(1) a scheme to
defraud (2) which involves a use of the mails (3) for the purpose of executing the
scheme.” United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (quoting

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United States v. McClelland, 868 F.2d 704, 706 (5th Cir. 1989)). Wire fraud
involves: “(1) a scheme to defraud and (2) the use of, or causing the use of, wire
communications in furtherance of the scheme.” United States v. Radley, 632
F.3d 177, 184 (5th Cir. 2011) (citation omitted).
             b.   The Evidence Against Mitchell
      Mitchell does not dispute that Barry perpetrated a mortgage fraud
conspiracy that involved a use of the mails and wire communications to further
the scheme. Rather, Mitchell challenges his convictions based on his claim that
he was ignorant of the fraudulent activity in which Barry was engaged. Mitchell
thus contends that the government’s evidence was insufficient to establish that
he was aware of the unlawful purposes of the conspiracy and that he willfully
participated therein with the intent of furthering those unlawful purposes. See
Grant, 683 F.3d at 643. Because the record is replete with examples of Mitchell’s
knowing and willful involvement in the scheme to defraud, we reject Mitchell’s
arguments.
      First, the government introduced at trial a number of e-mails transmitted
between Mitchell and Barry that evidenced Mitchell’s knowing and willful
participation in the mortgage fraud scheme. In many of these e-mails, although
Barry was neither the buyer nor the seller in the property transactions at issue,
he provided Mitchell with artificially high target appraisal values. In others,
Barry supplied to Mitchell substantive information about the property
transactions, including the names of buyers, sellers, brokers, and other
participants in the conspiracy. Mitchell, in turn, routinely submitted to lending
institutions appraisals containing this fraudulent information, and containing
property valuations exactly matching Barry’s targeted values.
      The evidence also established that Mitchell never disclosed Barry’s role in
these transactions; to the contrary, he purposefully concealed from lenders
Barry’s participation. In one e-mail, for example, Mitchell explained to Barry

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that a name was needed “on the real property section of [a] report” on which he
was working, and he asked Barry “what name other than your own do you want
me to use.” Further, using information that only Barry could have provided,
Mitchell falsified the names of the individuals who had ordered the appraisals
he completed in order to conceal from lenders that the properties were being
“flipped” at Barry’s direction.    Nevertheless, on a routine basis, Mitchell
fraudulently transmitted to lenders certifications that his appraisals were
accurate, that he arrived at his conclusions independently, and that he disclosed
the nature of any significant assistance he received in preparing his appraisals.
      In another series of e-mails, Mitchell requested from Barry a copy of a
housing form generated in connection with a private sale so that Mitchell could
use the associated data as a comparable property in another of his appraisals.
Barry responded by sending Mitchell a list of private sales for all the properties
involved in the scheme. Information about these private sales was not publicly
available, and because the likelihood of fraud increases when lenders are unable
to confirm ownership and sales records from publicly available sources, using
these forms to acquire comparable values for an appraisal violates industry
standards. However, Mitchell used this information to produce his appraisals,
and subsequently failed to disclose that he had obtained the underlying data
from Barry.
      Mitchell also suggested to Barry properties that could be included in the
scheme based on Mitchell’s ability to fraudulently inflate their appraised value.
In one e-mail, for example, Mitchell told Barry that Barry might be interested
in a particular house that was listed with a sale price of $245,900. Although the
property had been on the market for 446 days, Mitchell told Barry he could
“justify” an appraised value of “at least $575,000 on [the] house.” In another
instance, Mitchell suggested that Barry acquire a property that had been on the
market for 153 days and recently had seen a price decrease of $100,000.

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Mitchell indicated to Barry that while the home was listed with a sale price of
only $599,900, it was possible to “squeeze about 800 to $825,000 out of [it].” FBI
agent Richard Velasquez, the case agent who investigated Barry’s scheme,
testified that this suggestion did not “comport [with] his understanding of
market value from a common sense perspective.”
      Other e-mails demonstrated that Mitchell was aware that he was engaged
in transactions fraudulently involving two sales of a single property. In one e-
mail, for instance, Barry wrote to Mitchell: “You and [an alleged co-conspirator]
did the appraisals on Millard Pond and it then listed on [a multiple listing
service (“MLS”)], hence the second sale. . . . And also since it sold twice, closing
that could be an issue. Not overly concerned since all our sales are that way.”
The government also introduced an e-mail Mitchell received from a licensed
broker who expressed concerns about the features of the transactions in which
Mitchell was engaging. In that e-mail, the broker explained that it could be
problematic to regulators if: the sales at issue involved “a closed group of
investors”; the lenders were unaware “of the previous sales price or . . . list
price”; the properties were “bought at one price and quickly resold for a much
higher one within a short time [and there was] little to no tangible reason for the
increase”; or “the new buyer of the property on the second sale . . . gets any kind
of cash back.” The broker expressed that these types of transactions were
troubling to “regulators at all levels up to the Justice Department” because they
exposed lenders “to large loss in the event of default and forced sale.” Another
witness testified that these features “describe John Barry’s scheme in one
paragraph,” indicating that Mitchell was aware of the fraud. Finally, Mitchell
himself admitted in an e-mail to a co-conspirator that he had been “blacklisted”
by two lenders as a result of his appraisal practices, and that a third lender had
expressed concerns about his conduct. Despite these many warnings, Mitchell
continued to engage in business with Barry.

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       Although the correspondence outlined above reasonably could have led the
jury to conclude that Mitchell acted in concert with Barry to perpetrate the
mortgage fraud, a rational trier of fact also could have found that Mitchell’s
appraisals were so far beyond any commonly accepted idea of market value that
they were further indicia of his intent to commit fraud.1 The following examples
are demonstrative:2
       •      810 Hills Creek Drive: This house was listed on the market
              with a sale price of $375,000 for approximately six months,
              after which the price was lowered to $350,000. Mitchell
              appraised it at $545,000.
       •      1220 Hills Creek Drive: The owner of this property arrived at
              a listing price of $315,000 based on comparable sales.
              Mitchell appraised it at $600,000.
       •      7019 Old York Road: A real estate agent advised the owner of
              this home to list it for $449,000. After it was on the market
              for few months, the owner lowered the price to $420,000.
              Mitchell appraised it at $664,000.
       •      823 Hills Creek Drive: With the assistance of a real estate
              agent, the owner of this property valued it at $358,000.
              Mitchell appraised it at $647,000.
       •      4716 Seafarer Court: A real estate agent suggested that this
              property be listed at $514,000. The house remained on the


       1
         Mitchell suggests that Jack McComb, an investigator with the Texas Appraiser
Licensing and Certification Board who testified for the government, was “not able” to state
that Mitchell’s appraisals were incorrect as to the actual values of the properties. According
to Mitchell, this is significant because McComb was offered as an expert in residential real
estate evaluations. Nevertheless, McComb was not retained by the government to prepare
separate valuations. Rather, he was asked only to testify as to whether Mitchell’s appraisals
complied with the Uniform Standards of Professional Appraisal Practice. According to
McComb, they did not.
       2
         Mitchell contends that the “factual information” in these appraisals—such as the
number of rooms, square footage, and other details of the homes—was correct. Mitchell
neglects, however, that he falsified information and values related to comparable properties,
as well as the ultimate appraised values of the targeted properties. This information, of
course, is the very information lending institutions rely on to determine the amount they are
willing to lend a borrower.

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              market for roughly eighteen months, resulting in a price
              reduction to $482,000. Mitchell appraised it at $698,000.
Sellers repeatedly testified that their properties were worth nothing close to the
values at which Mitchell arrived.3
       In response to the evidence against him, Mitchell submits that the
government’s case came “down to the fact that [he] appraised property at a
higher rate” than the local governmental appraisal body. This suggestion is
based on Mitchell’s argument that Agent Velasquez stated that, in his opinion,
“based on the Collin County Appraisal District records,” the appraisals Mitchell
submitted “were all too high.” Mitchell contends this was improper because tax
appraisals are an inappropriate measure of the value of property. He notes that
federal law even provides that appraisals submitted in connection with federally-
related transactions cannot be based on property tax records, but rather must
be performed by certified or licensed appraisers.
       Mitchell ignores, however, that the government introduced tax values
merely to provide a baseline estimate of the value of a particular piece of
property.     The government never represented, in other words, that tax
assessments were anything more than a data point to orient the jury. Indeed,
Agent Velasquez himself testified that tax value is “a baseline” and a “kind of
starting point of what value should be.” Further, when asked if tax value was
simply a “data point,” he responded, “[t]hat’s all it is.” The government thus did
not improperly rely on tax assessments—much less base its entire case on them.
       Rather, the government’s evidence of Mitchell’s participation in Barry’s
mortgage fraud scheme was overwhelming. As he did at trial, Mitchell does no
more on appeal than offer an alternative theory—namely, that he was ignorant


       3
         Mitchell suggests that the evidence showed that the sellers of the homes he appraised
all had “financial incentives” to accept lower prices—incentives such as “job transfers, troubled
marriages, [and] carrying two mortgages.” This assertion, however, is unsupported by the
record.

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of the conspiracy and simply was sloppy or incompetent in preparing the
appraisals at issue.4 Mitchell’s argument, however, neglects that we must view
the evidence in the light most favorable to the verdict. See Ford, 558 F.3d at
375. While the jury was free to adopt Mitchell’s construction of the evidence, it
declined to do so. See Pigrum, 922 F.2d at 254. Given the extent of the evidence
against him, a reasonable trier of fact easily could have found that the
government established Mitchell’s guilt beyond a reasonable doubt. See Moser,
123 F.3d at 819.
       3.      Mail Fraud Convictions
       Mitchell also was convicted under 18 U.S.C. §§ 1341 and 2 of two counts
of mail fraud. The charges underlying these convictions relate to fraudulent
loan documents mailed in connection with properties at 823 Hills Creek Drive
and 7019 Old York Road in McKinney, Texas. Evidence introduced at trial
demonstrated that Mitchell appraised these properties as part of the scheme to
secure fraudulently inflated mortgage loans from Washington Mutual in San
Antonio, Texas, and Oak Street Mortgage in Carmel, Indiana.
               a.     Applicable Law
           As previously noted, the federal mail fraud statute requires the
government to prove: “(1) a scheme to defraud (2) which involves a use of the
mails (3) for the purpose of executing the scheme.” McClelland, 868 F.2d at 706.
“The Government is not required to prove that the defendant specifically
intended for the mails to be used in furtherance of the alleged fraudulent
scheme.” United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009). Rather,

       4
         In response to this suggestion, the government argued at trial that the evidence
clearly established that Mitchell’s actions were not simply the result of innocent mistakes. If
that had been the case, the prosecutor contended, the law of averages would have led to some
of the “mistakes” resulting in increased appraised values, and some resulting in lower values.
The government suggested to the jury, however, that “Mr. Mitchell did not make at least 35
mistakes in a row that all coincidentally inflated the property values of these homes . . . . That
is impossible.”

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“[t]he test to determine whether a defendant caused the mails to be used is
whether the use was reasonably foreseeable.” United States v. Mann, 493 F.3d
484, 493 (5th Cir. 2007); see also Pereira v. United States, 347 U.S. 1, 8–9 (1954)
(“Where one does an act with knowledge that the use of the mails will follow in
the ordinary course of business, or where such use can reasonably be foreseen,
even though not actually intended, then he ‘causes’ the mails to be used.”).
            b.     The Evidence Against Mitchell
      Mitchell does not advance an independent challenge to the substantive
mail fraud counts.    Rather, in generally arguing that “[t]here was legally
insufficient evidence for the jury to find [him] guilty as alleged in the
indictment,” Mitchell again merely asserts that he was unaware of the criminal
scheme. As explained above, however, there was ample evidence from which a
reasonable trier of fact could have concluded that Mitchell was a willful
participant in the fraudulent mortgage scheme. Likewise, the evidence was
sufficient to establish that Mitchell knew, or intended that, the mails would be
used to further the scheme.
      In connection with the mail fraud statute, we previously have explained
that “[t]he requisite statutory purpose exists if the alleged scheme’s completion
could be found to have been dependent in some way upon the information and
documents passed through the mails, . . . and if the use of the mails was an
integral part of the scheme to defraud.” McClelland, 868 F.2d at 707 (omission
in original) (internal quotation marks and citation omitted). Here, the false loan
documents mailed to lenders were essential to obtaining the fraudulent loans.
Moreover, the jury rationally could have found that it was reasonably
foreseeable to Mitchell that the mails would be used to advance the scheme.
      First, it was reasonable to conclude that Mitchell’s experience in the
mortgage industry made him aware that those within the industry routinely use
the mail to transmit documents to one another. See Whitfield, 590 F.3d at 355.

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Second, several of Mitchell’s co-conspirators testified that loan documents
regularly were transmitted by mail, suggesting that Mitchell was aware that the
mail ordinarily was used to conduct business. See Pereira, 347 U.S. at 8–9.
Finally, because the lenders at issue were not located in the same geographic
area as the conspirators, the jury rationally could have concluded that the mail
was used to perpetrate the conspiracy—especially given testimony to this effect
offered by one of the conspirators. See United States v. Flores–Chapa, 48 F.3d
156, 161 (5th Cir. 1995) (“Juries are free to use their common sense and apply
common knowledge, observation, and experience gained in the ordinary affairs
of life when giving effect to the inferences that may reasonably be drawn from
the evidence.”).
       In sum, the evidence was sufficient for the jury to convict Mitchell on all
charged counts. See Seale, 600 F.3d at 496–97.
B.     Sentencing
       The district court sentenced Mitchell on March 27, 2012, to a below-
Guidelines sentence of 120 months’ imprisonment for each count, with the
sentences to run concurrently. Mitchell also was ordered to pay $8,245,423 in
restitution and to serve three years of supervised release. On April 18, 2012, the
court held a hearing to determine whether the withdrawal of Mitchell’s attorney
immediately after the sentencing hearing had impacted Mitchell’s rights, and
whether recently decided Supreme Court cases were at all implicated in his case.
By that time, Barry had been sentenced to a term of 180 months, which
provoked the district court to express that, “in hindsight,” it did not believe that
Mitchell “was two-thirds as much responsible as Mr. Barry.” Accordingly, the
court stated “for the record that were [it] to sentence [Mitchell] today, [it] would
sentence him to about 84 months.” Ultimately, however, the court concluded
that it did not have the authority “to sua sponte reduce Mr. Mitchell’s sentence.”



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      Mitchell did not assert an objection when these comments were made, and
he does not now contend that the district court committed any error when it first
imposed sentence. Rather, he argues that the court erred when it “maintained
the sentence and the lead defendant, the most culpable defendant in this case
received, pursuant to an agreement with the Government, a sentence only one-
third longer than Mr. Mitchell’s.” In other words, Mitchell asserts that the
district court erred in failing to sua sponte resentence him, and he thus argues
that he is entitled to a new sentencing hearing. For the following reasons, we
reject Mitchell’s claims.
      1.    Standard of Review
      We review de novo whether the district court had authority to resentence
a defendant. United States v. Ross, 557 F.3d 237, 239 (5th Cir. 2009); United
States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).
      2.    Applicable Law and Related Discussion
      “A federal court generally ‘may not modify a term of imprisonment once
it has been imposed.’” Dillon v. United States, 130 S. Ct. 2683, 2687 (2010)
(quoting 18 U.S.C. § 3582(c)). However, “the rule of finality is subject to a few
narrow exceptions.” Freeman v. United States, 131 S. Ct. 2685, 2690 (2011).
Specifically, 18 U.S.C. § 3582(b) authorizes a court to modify a sentence in a
limited number of circumstances, such as:
      (1) when the court receives a motion from the Director of the Bureau
      of Prisons indicating there are extraordinary and compelling
      reasons warranting a reduction and that reduction is consistent
      with applicable policy statements issued by the Sentencing
      Commission; (2) pursuant to Rule 35[(a)] of the Federal Rules of
      Criminal Procedure the district court, acting within [14] days after
      the imposition of sentence, corrects an arithmetical, technical, or
      other clear error identified in a previously imposed sentence; and (3)
      when a defendant who has been sentenced to a term of
      imprisonment based upon a sentencing range that has subsequently
      been lowered by the Sentencing Commission.


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                                        No. 12-40336

Bridges, 116 F.3d at 1112. Although, as noted, Rule 35 permits modifications in
certain narrowly defined circumstances, it “is not intended to afford the court the
opportunity to reconsider the application or interpretation of the sentencing
[G]uidelines or for the court simply to change its mind about the appropriateness
of the sentence.” United States v. Lopez, 26 F.3d 512, 520 (5th Cir. 1994)
(quoting Fed. R. Crim. P. 35 advisory committee’s note).
       Here, Mitchell concedes that the district court “indicated by its statements
and actions that it was aware that the federal sentencing [G]uidelines were
advisory,” and that the sentence “comports with United States v. Booker, 543
U.S. 220 (2005)” because the court sentenced Mitchell “in accordance with the
factors set forth in 18 U.S.C. [§] 3553(a).” Mitchell also admits that the court
“interpreted and applied the Guidelines, resulting in a sentence that may be
considered legally reasonable.” Finally, Mitchell expresses awareness “that a
district court’s authority to modify or correct a sentence is limited to specific
circumstances”—namely, those set forth in 18 U.S.C. § 3582(c)—and he
acknowledges that § 3582(c) does “not apply in this case.” Nevertheless, Mitchell
argues that the court erred when it maintained his sentence when, in the
hearing conducted after sentencing, it expressed that were it to resentence him,
it would impose only “about 84 months.”
       As     the     district      court      concluded—and            Mitchell       himself
acknowledges—Mitchell’s sentence was reasonable.5 Although Mitchell believes
the court should have sua sponte resentenced him, “a district court is not
permitted to withdraw a reasonable sentence and impose what is, in its view, a
more reasonable one.” Ross, 557 F.3d at 243. Moreover, as Mitchell concedes,


       5
         On this score, we note that (1) the factors the district court considered in selecting
Mitchell’s sentence were all relevant, proper factors; (2) there are no other factors relating to
Mitchell that should have received significant weight; and (3) the district court did not err in
balancing the sentencing factors. See United States v. Smith, 440 F.3d 704, 707–08 (5th Cir.
2006); see also Booker, 543 U.S. at 261.

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    Case: 12-40336    Document: 00512195986      Page: 16   Date Filed: 04/03/2013



                                  No. 12-40336

the district court had no authority under 18 U.S.C. § 3582(c) to modify Mitchell’s
sentence.   Thus, while the court may have “change[d] its mind about the
appropriateness of the sentence” after it was imposed, such misgivings are not
reflective of error. Lopez, 26 F.3d at 520. Simply put, because the court had no
authority to resentence Mitchell, it committed no error, plain or otherwise, in
declining to do so.
                             III. CONCLUSION
      Accordingly, we AFFIRM the district court’s judgment.




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