United States District Court, D. Vermont
REPORT AND RECOMMENDATION (Doc. 90)
JOHN M. CONROY, Magistrate Judge.
On May 23, 2014, Defendant John Mitchell, proceeding pro se, filed a "First Amendment Petition" seeking to vacate and amend the sentence imposed upon him in this case. (Doc. 90.) Mitchell's sentence was imposed on June 16, 2003 following his plea of guilty to four counts charging Mitchell with the commission of bank robbery, brandishing a firearm during commission of a bank robbery, interstate transportation of a stolen vehicle, and interstate transportation of stolen firearms. ( See Doc. 80.) In his § 2255 Motion, Mitchell asserts that his sentence is constitutionally defective under Alleyne v. United States, 133 S.Ct. 2151 (2013), because, according to Mitchell, facts resulting in an enhancement of his sentence were not admitted by him or presented to a jury. For relief, Mitchell seeks to have his sentence vacated and to be resentenced. (Doc. 90 at 2.)
The government opposes Mitchell's § 2255 Motion, arguing that it is time-barred, procedurally defaulted, and without merit. (Doc. 95.) Mitchell has not filed any reply. For the reasons set forth below, I recommend that Mitchell's § 2255 Motion (Doc. 90) be DENIED.
I. Second Superseding Indictment and Plea
On July 23, 2002, the federal grand jury returned a Second Superseding Indictment charging Defendant John Mitchell (and codefendant David Moodie) with conspiracy to brandish a firearm during a bank robbery under 18 U.S.C. § 924(o) (Count 1); brandishing a firearm during the commission of a bank robbery in violation of 18 U.S.C. § 924(c) (Count 2); bank robbery in violation of 18 U.S.C. § 2113 (Count 3); interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312 (Count 4); and interstate transportation of stolen firearms in violation of 18 U.S.C. § 922(i) (Count 5). (Doc. 41.) Generally, the offense conduct described in the Second Superseding Indictment charged Mitchell and Moodie with stealing firearms and a vehicle, and then using one of the firearms and the stolen vehicle to carry out a bank robbery in Vermont before driving the stolen car to New Hampshire and burning both the car and the firearm. ( See id. at 1-2.) The Second Superseding Indictment did not allege the fate of the remaining stolen firearms, or specifically whether they were sold with knowledge, intent, or reason to believe that they would be used or possessed in connection with another felony offense.
On October 7, 2002, pursuant to a written plea agreement (Doc. 54), Mitchell pleaded guilty to Counts 2-5 of the Second Superseding Indictment. The Court accepted the guilty plea, deferred acceptance of the plea agreement, and ordered a Presentence Report ("PSR") in anticipation of sentencing.
II. Presentence Report and Sentencing
The PSR prepared by the Probation Office concluded that Mitchell faced a term of imprisonment with a sentencing guideline range of 176 to 199 months. (PSR ¶ 162.) That range was based on a mandatory seven-year (84-month) consecutive sentence for Count 2,  plus 92-115 months based on a criminal history category of VI and a total offense level of 23 arising out of the remaining counts. To arrive at the total offense level of 23, the PSR applied specific offense characteristics and calculated adjusted offense levels for Counts 3, 4, and 5 that were greater than the base levels for each of those counts. ( Id. ¶¶ 80-98.) In particular, the ten-level adjustment for Count 5 included a four-level increase under USSG §2K2.1(b)(5) for transferring a "firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." ( Id. ¶ 94(c).)
The basis for the adjustment under USSG § 2K2.1(b)(5) was testimony provided by Eric Pullen, who was associated with Moodie and Mitchell. According to Pullen, after the stolen car and the firearm that was brandished during the bank robbery were burned, Mitchell, Moodie, and Pullen traveled to Connecticut where Mitchell sold some of the remaining stolen firearms to some "tough gang bangers." (PSR ¶ 63.) An addendum to the PSR describes the defense's objection and assertion that Pullen's testimony was insufficient to trigger the four-level enhancement. ( Id. at 42.) The United States Probation Officer responded to the objection, maintaining that the four-level enhancement was "correct and proper" because Pullen's statement supplied a sufficient factual basis. ( Id. )
The Court held a sentencing hearing on June 16, 2003. ( See Doc. 83 (sentencing transcript).) At the hearing, the defense moved for a downward departure based on the disparity of treatment between the codefendants. In the course of the discussion, the parties spoke about the four-level increase for the distribution of the stolen firearms. The Court addressed that issue as follows:
It's true that the defendant has raised an objection to the four-level increase because of the distribution of guns, knowing or have reasonable cause to believe that the guns could be used for some other criminal act. The description made by Mr. P[ullen], in particular, at pages, I think, 21 through 24 of the transcript of the grand jury testimony of Mr. P[ullen], but also everyone's aware of the testimony that he gave before the Court in regard to Mr. Mood[ie], there's a clear indication that these individuals were involved in the distribution of drugs, they weren't actually called drug dealers, but in fact they distributed drugs, crack cocaine, in turn, and it's clearly identified.
So reasonable cause is easily established that those guns were going to be used by drug dealers in New Haven, Connecticut, to further drug distribution. There's no question about that, actually, and so I adopt the findings of the probation officer in regard to that four-level increase.
(Doc. 83 at 15:13-16:6.) Ultimately, the Court denied the motion for downward departure. The Court imposed a sentence of 176 months' imprisonment, consisting of 92 months as calculated under the Sentencing Guidelines on Counts 3-5, plus the mandatory 84 months on Count 2, ...