United States v. Timothy Mitchell , 376 F. App'x 749 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 19 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30168
Plaintiff - Appellee, D.C. No. 2:97-cr-00283-JLR
v.
MEMORANDUM*
TIMOTHY MICHAEL MITCHELL,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-30169
Plaintiff - Appellee, D.C. No. 2:08-cr-00213-JLR
v.
TIMOTHY MICHAEL MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted April 5, 2010
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
Timothy Mitchell appeals his jury conviction and sentence for possession of
cocaine with intent to distribute and possession of methamphetamine with intent to
distribute. We affirm.
1. The district court did not abuse its discretion when it allowed the
Government to present evidence at trial that Mitchell had admitted possession of
the drugs at issue before a magistrate judge, who was conducting a hearing to
determine whether Mitchell violated the terms and conditions of his pre-existing
supervised release (even though those admissions were later withdrawn). We
review the district court’s ruling on Mitchell’s evidentiary objection for abuse of
discretion. United States v. Parks, 285 F.3d 1133, 1138 (9th Cir. 2002).
Mitchell does not challenge the relevancy of his comments before the
magistrate court; Federal Rule of Evidence 410 does not prohibit the admission of
such evidence. Although such admissions might be analogized to a plea of guilty,
Mitchell’s statements were unlike the acceptance of a guilty plea at trial, because a
probation violation hearing seeks to determine whether the probationer breached
the court’s trust; it does not seek to adjudicate criminal guilt or to punish the
probationer for commission of the underlying offenses constituting the probation
violation. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006).
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Furthermore, even if the district court abused its discretion, the Government has
demonstrated that any error was harmless, because the jury was presented with
overwhelming evidence of Mitchell’s guilt. Therefore, the alleged error did not
materially affect the verdict. United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir.
1993).
2. The district court did not commit error in finding that Mitchell was
subject to a sentencing enhancement based upon his status as a “career offender.”
The relevant dispute at sentencing was whether Mitchell was in custody in May of
1993, on either his 1988 or 1980 convictions for possession of methamphetamine
with intent to distribute. Relying upon six exhibits put forth by the Government
and entered into the record at sentencing, the district court made a factual finding
that he was. Although Mitchell disagrees with the court’s final determination, he
cannot show that the court committed clear error in finding (1) these documents
established he was in custody in May of 1993 and (2) when combined with other
undisputed aspects of his criminal history, he was subject to an enhancement as a
career offender. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Mitchell next argues that the district court should have relied upon only
“judicially noticeable” documents, as defined in Taylor v. United States, 495 U.S.
575 (1990). However, when a court must determine the length of time between an
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instant offense and release from a previous offense, the “Taylor problem does not
arise . . . because [the facts] are independent of the nature of the underlying
offense.” United States v. Ellsworth, 456 F.3d 1146, 1152 (9th Cir. 2006). Here,
Mitchell has conceded that his previous convictions qualify as drug convictions
under the relevant Sentencing Guideline. The only question before the sentencing
court was the length of time between the commission of the instant offense and
when Mitchell finished serving his sentence on the previous crimes. When Taylor
does not apply, a sentencing court may, generally, “consider relevant information
without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its
probable accuracy.” U.S. Sentencing Guidelines Manual § 6A1.3(a). See also
Witte v. United States, 515 U.S. 389, 400–01 (1995) (noting that sentencing courts
have traditionally considered a wide range of information, including prior criminal
conduct). Mitchell has not argued that the exhibits failed to meet this standard.
Therefore, the court did not err in considering the exhibits put forth by the
Government.
3. The district court properly corrected Mitchell’s original sentence,
pursuant to Federal Rule of Criminal Procedure 35(a). Rule 35(a) states that a
“court may correct a sentence that resulted from arithmetical, technical, or other
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clear error.” In United States v. Carty, we held that “[a]ll sentencing proceedings
are to begin by determining the applicable Guidelines range. The range must be
calculated correctly.” 520 F.3d 984, 991 (9th Cir. 2008) (en banc). “It would be
procedural error for a district court to fail to calculate—or to calculate
incorrectly—the Guidelines range;” “a procedurally erroneous . . . sentence will be
set aside.” Id. at 993. Both parties agree that the district court incorrectly
calculated the Guidelines range at the initial sentencing hearing.
Mitchell’s conviction and subsequent sentence are AFFIRMED.
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