Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding D.C. No.2:07-cr-00474-GAF-1.
The opinion of the court was delivered by: Goodwin, Senior Circuit Judge
Argued and Submitted January 11, 2010 -- Pasadena, California.
Before: Alfred T. Goodwin, William C. Canby, Jr. and Diarmuid F. O'Scannlain, Circuit Judges.
Opinion by Judge Goodwin; Concurrence by Judge O'Scannlain
Patrick J. Mitchell appeals his 180-month imprisonment sentence as a career offender under § 4B1.1 of the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). We affirm and join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.
FACTUAL AND PROCEDURAL BACKGROUND
The Federal Bureau of Investigation ("FBI") and the Los Angeles Police Department had identified Mitchell as a member of the Black P-Stone Bloods street gang and a supplier of crack cocaine. On May 23, 2005, an FBI confidential informant purchased two ounces of crack cocaine from Mitchell for $1,000. Forensic analysis showed that the plastic bag Mitchell sold to the informant contained 52.4 grams of crack cocaine.
Pursuant to a plea agreement, Mitchell pled guilty to a single-count information charging him with distributing a mixture containing 52.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). This crime requires a mandatory minimum of 10 years of imprisonment. Id. § 841(b)(1)(A)(iii). Because Mitchell pled guilty pre-indictment, the government agreed not to use his prior felony narcotics convictions to enhance his mandatory minimum sentence under 21 U.S.C. §§ 802(44), 841, 851 and to recommend that he be sentenced at the low end of the Sentencing Guidelines range. Nonetheless, the parties acknowledged that the crime to which Mitchell was pleading guilty was a felony narcotics trafficking crime, and that his criminal history could subject him to an enhanced Guidelines range as a career offender.
Concluding that Mitchell had four predicate state felony convictions, the Probation Office calculated his offense level as a career offender under § 4B1.1(b) of the U.S. Sentencing Guidelines. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1(b) (2007) (amended May 1, 2008).*fn1 Following objections to and revisions of Mitchell's presentence report ("PSR"), the district judge conducted a sentencing hearing on September 22, 2008. The judge determined that the four felony convictions all constituted predicates for Mitchell's career-offender status, although only two were required. The judge then considered the 18 U.S.C. § 3553(a) factors and concluded: "Mitchell's record is lengthy. He has had virtually no periods in his life that were truly crime free."
Mitchell's Sentencing Guidelines range was 262-327 months of imprisonment. Regarding the incarceration portion of Mitchell's sentence, the district judge explained that "the single most important variable in my exercise of discretion, which is going to result in a sentence below the government's recommendation, is the crack powder differential." Noting that the disparity was "enormous" and "disproportionate," the judge determined that "it requires some exercise of discretion and judgment, but there are limitations." The judge stated that Mitchell's "lengthy serious criminal history," including "violence," "threats of violence," and "drug dealing" necessitated "protecting the public" and required "a substantial sentence." Although the statutory minimum was 10 years, 21 U.S.C. § 841(b)(1)(A), which Mitchell had requested, the judge stated that a sentence of 120 months was "too great an adjustment . . . the adjustment downward should [not] go that far."
From the low end of Mitchell's Sentencing Guidelines range, 262 months, the judge departed downward 43 months on the basis of the crack/powder cocaine disparity and credited Mitchell for 39 months served in state custody on a related crime. Consequently, the district judge sentenced Mitchell to 180 months of imprisonment, followed by 5 years of supervised release, and ordered him to pay a $100 special assessment. Mitchell is in custody serving his 180-month sentence. He challenges his predicate state convictions that were used to qualify him for ...