09-4360-cr
United States v. Mitchell




                                 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 19th day of October, two thousand ten.

PRESENT:
                  JOSEPH M. McLAUGHLIN,
                  PETER W. HALL,
                             Circuit Judges,
                  RICHARD M. BERMAN,*
                             District Judge.

______________________________________________

UNITED STATES OF AMERICA,
                                             Appellee,

                            v.                                                   No. 09-4360-cr

BARTHOLOMEW MITCHELL, also known as Michael
 Littlejohn, also know as Bartholomew E. Mitchell, Jr.,
                                    Defendant-Appellant.
______________________________________________


         *
          The Honorable Richard M. Berman of the United States District Court of the Southern
District of New York, sitting by designation.


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FOR APPELLEE:                                 RYAN P. POSCABLO, Assistant United States
                                              Attorney (Katherine Polk Failla, Assistant United
                                              States Attorney, Of Counsel, on the brief) for Preet
                                              Bharara, United States Attorney for the Southern
                                              District of New York.

FOR DEFENDANT-APPELLANT:                      DARRELL B. FIELDS, Federal Defenders of New
                                              York, Inc., Appeals Bureau, New York, New York.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Preska, C.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

       Bartholomew Mitchell appeals from a sentence of 96 months’ imprisonment imposed for

a conviction, following a guilty plea, for possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1). We assume the parties’ familiarity with the facts, procedural context, and

specification of issues on appeal.

       This Court reviews a district court’s sentence for reasonableness. United States v.

Booker, 

, 261-62 (2005); United States v. Gall, 

, 51 (2007). The review

of a sentence encompasses a procedural and a substantive review. United States v. Cavera, 

, 189 (2d Cir. 2008) (en banc). We review the work of a district court under a

“deferential abuse-of-discretion standard.” 

“set aside a district court’s substantive

determination only in exceptional cases where the trial court’s decision cannot be located within

the range of permissible decisions.” 

(quotation marks omitted).

       Mitchell argues that the sentence imposed is unreasonable for three reasons.

Mitchell argues first that his sentence is “greater than necessary” to achieve the objectives of

sentencing. Second, Mitchell argues the district court erred by using the 77 to 96 month


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sentence range resulting from a four-level enhancement of his offense level for an obliterated

serial number, a factor that required no mens rea. Third, he further argues the sentence is

excessively disproportionate to the longest sentence Mitchell had received previously. Each

argument fails.

       Mitchell asserts that he should not have been placed in Criminal History Category VI

because it overstates the seriousness of his criminal history. He points out he was convicted of

two felonies, which occurred more than eight years ago, and his other convictions were

misdemeanors that resulted in short jail sentences. He concludes that, because many of his

convictions were for minor offenses, he deserves a lesser punishment. Mitchell does not contend

that the criminal history score was calculated incorrectly; he argues only that it was

inappropriate for the district court to consider him in the worst category of offenders.

       The district court did not abuse its discretion by imposing the 96-month sentence because

it correctly found that Mitchell’s criminal history points, calculated at fourteen, placed Mitchell

in Criminal History Category VI. Category VI, which when combined with his offense level,

establishes a sentence range of 77 to 96 months’ imprisonment. While individuals in Criminal

History Category VI have often committed very serious crimes in the past, Mitchell had multiple

convictions including assault, attempted assault, a drug conviction, and a prior weapons

conviction that combine to yield the same result. That is, Mitchell is a recidivist. The district

court, therefore, did not abuse its discretion in assigning him to Criminal History Category VI.

See United States v. Dacy, 301 F. App’x 45, 46 (2d Cir. 2008) (“We hold that the district court

did not abuse its discretion in determining that Dacy’s criminal history category [of VI],

although premised on non-violent misdemeanors, accurately reflected the seriousness of Dacy’s

criminal history and warranted a within-Guidelines sentence.”).

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       Mitchell also argues that the district court erred by assessing an additional two criminal

history points, under § 4A1.1(e), because the instant offense occurred within two years of his

release from prison. Absent these two criminal history points, Mitchell argues that he would be

in Criminal Category V, not Category VI. Mitchell correctly states that the Sentencing

Commission voted to delete the “recency” provision from the Guidelines, effective November 1,

2010. See News Release, U.S. Sentencing Comm’n (Apr. 19, 2010),

http://www.ussc.gov/PRESS/rel20100419.htm. The district court, however, was required to

calculate Mitchell’s sentence using the Guidelines in effect at the time of sentencing. U.S.S.G.

§ 1B1.11; cf. United States v. Madrid-Gomez, 

, at *14 (D.N.M. May 14, 2010)

(rejecting defendant’s request that “recency” points not be assessed in light of upcoming

deletion; noting that criminal history must be calculated “using the Guidelines as they currently

are”). Without an express decision by the Sentencing Commission to make its changes

retroactive, the mere existence of an amendment that alters a Guideline provision going forward

does not render the applicable Guideline substantively unreasonable. See Braxton v. United

States, 

, 348 (1991) (stating that Congress gave the Sentencing Commission the

explicit power to decide whether its amendments will be given retroactive effect).

       Mitchell’s second argument is that his Sentencing Guideline range was unreasonable

because his offense level calculation included a four-level enhancement for an obliterated serial

number. Mitchell argues that the enhancement does not require any particular mens rea and

there was no evidence that Mitchell knew the serial number was obliterated. The four-level

enhancement, therefore, “does not promote the goals of sentencing under § 3553(a)(2),” and the

sentence violates the parsimony clause of 18 U.S.C. § 3553(a).



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       Mitchell is mistaken. In United States v. Brown, 

(2d Cir. 2008), the

defendant argued that the obliterated serial number enhancement did not apply to him because he

did not know that the numbers were obliterated. 

This Court explained that the four-

level enhancement applies “[i]f any firearm . . . ha[s] an altered or obliterated serial number.” 

§ 2K2.1(b)(4)). In addition, the comments to the applicable Guidelines provide

that the enhancement applies “regardless of whether the defendant knew or had reason to believe

that the firearm . . . had an altered or obliterated serial number.” U.S.S.G. § 2K2.1, cmt. n.8; see

also United States v. Williams, 

, 93 (2d Cir. 1995) (upholding the strict-liability nature

of the enhancement for an obliterated serial number).

       Finally, Mitchell argues that the 96-month sentence was disproportionately excessive in

relation to his longest prior sentence. Citing to United States v. Mishoe, 

(2d Cir.

2001), Mitchell asserts that there must be “an appropriate relationship between the sentence for

the current offense and the sentences, particularly the times served, for the prior offenses,” 

and that the current sentence is unreasonable because it is four times greater than any

sentence that the defendant previously served. In his view, a 46-month sentence would have

achieved the requisite deterrent effect. Mishoe does not support Mitchell’s argument. In

Mishoe, we held that a “major reason for imposing an especially long sentence upon those who

have committed prior offenses is to achieve a deterrent effect that the prior punishments failed to

achieve.” 

a deterrent effect on recidivists, we noted that there must be a relationship

between the current offense and the sentences received from the prior offenses. See 

example, a defendant twice served five or six years and thereafter committed
       another serious offense, a current sentence might not have an adequate deterrent
       effect unless it was substantial, perhaps fifteen or twenty years. Conversely, if a
       defendant served no time or only a few months for the prior offenses, a sentence of


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       even three or five years for the current offense might be expected to have the
       requisite deterrent effect.

sentence imposed on Mitchell closely parallels the ratio that the Mishoe Court

suggested would not be unreasonably disproportionate. The record shows that the district court

considered Mitchell’s arguments but found that the need to deter Mitchell’s future conduct and

the need to protect the public from future crimes committed by the defendant outweighed

Mitchell’s arguments to the contrary. The 96-month conviction was reasonable in light of

Mitchell’s past criminal history, the nature of those crimes, and the nature of the crime of the

conviction.

       To the extent that Mitchell argues the district court erred procedurally in implementing

his sentence or failed to depart downward pursuant to U.S.S.G. § 4A1.3, those arguments are

without merit.

       The judgment of the district court is AFFIRMED.



                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk




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