United States v. Mitchell

MEMORANDUM *

Following a Booker 1 remand, Trayvonne Mitchell (“Mitchell”) appeals his 283-month sentence for conspiracy, bank robbery and use of a firearm. We affirm.

The district court did not clearly err by applying the firearm enhancement to the March 1996 robbery. Although the district court’s comments about the enhancement at resentencing could be construed as improperly imposing the enhancement solely because a bank robbery had occurred, see United States v. Zelaya, 114 F.3d 869, 871-72 (9th Cir.1997), the court also expressly adopted all of its findings from the prior sentencing. There, the court had noted that Mitchell was aware of the use of a firearm during a prior robbery within the conspiracy. The court concluded that, based on Mitchell’s past experience, it was reasonably foreseeable a firearm would again be used in the March robbery. Andre Hart’s trial testimony makes it clear Mitchell was aware guns were used in the previous robberies, and the March robbery followed a similar pattern. In light of this evidence, the district court did not clearly err by imposing the firearm enhancement. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990); cf. United…

dissenting:

Under the Guidelines, a defendant’s offense level can be increased four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S. Sentenoing Guidelines Manual (“USSG”) § 3B1.1. The majority concludes that the district court properly applied a leadership enhancement for Mitchell’s role in the March robbery based on “testimony about Mitchell’s role throughout the various robberies involved in the conspiracy, all of which indicate Mitchell was more than just an ‘average participant’ in the robberies.” For the reasons set forth below, I respectfully disagree.

1. To impose a four-level increase under § 3B1.1, the district court was required to find that Mitchell served as a leader or organizer “[bjased on [his] role in the offense.” USSG § 3B1.1 (emphasis added). The majority hardly mentions Mitchell’s role in the March robbery, focusing instead on his alleged role in the broader conspiracy. This sleight of hand obscures the most significant problem with the sentence imposed by the district court: Simply stated, none of the evidence presented by the government demonstrates *616…