US v. Mitchell: In 2021, Mitchell (and codefendants) was charged in an eight-count indictment with conspiracy to commit Hobbs Act robbery and seven substantive robbery counts. Mitchell pleaded guilty to the conspiracy count and one substantive count. In the PSR, the probation officer identified five robberies (or attempted robberies) in which Mitchel was involved (not all of which were substantive counts from the indictment). Applying USSG § 1B1.2(d), the probation officer treated Mitchell as if he had four separate convictions which, because they did not group, led to a four-level multi-count increase in his offense level. The district court adopted those calculations and imposed a sentence of 108 months, below the 120-150 month Guideline range.
On appeal, the Fourth Circuit affirmed Mitchell’s sentence. Before reaching the merits, the court returned to the question of Guideline commentary and the Supreme Court’s decision in Kisor, concluding that under Campbell that Kisor applies to questions of Guideline commentary interpretation (as opposed to the later-decided Moses which concluded it did not). That done, the court § 1b1.2(d) applies to robberies, “even if those underlying robberies would constitute violations of the same statute.” The court did not need to reach the issue of how to determine which other robberies are counted as Mitchell never contested that he committed the four robberies at issue.
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