United States v. Jermaine Mitchell

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 20-10196
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10196

Plaintiff-Appellee, D.C. No. 3:04-cr-00010-HDM-VPC-1 v.

JERMAINE ALONZO MITCHELL, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Argued and Submitted October 22, 2021 San Francisco, California

Before: MURGUIA, Chief Judge, and BERZON and BEA, Circuit Judges.

Jermaine Mitchell appeals the district court’s order granting him a reduced

sentence pursuant to the First Step Act of 2018 (“F.S.A.”). We review the district

court’s sentencing decision for abuse of discretion, see United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc), and we affirm.

Mitchell was convicted in 2007 of possession with intent to distribute

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. cocaine base in excess of 50 grams, in violation of federal law. Because of his

prior controlled substances convictions, Mitchell received a mandatory life

sentence. After Mitchell filed a motion for a reduced sentence under the F.S.A.,

the district court reduced his sentence from a term of life to a term of 360 months.

Mitchell appeals the district court’s decision not to reduce his sentence further.

Mitchell argues that he no longer qualifies as a career offender today

because, due to changes in Nevada law, his prior conviction for violating Nevada

Revised Statutes (“N.R.S.”) § 453.337 no longer qualifies as a predicate offense

for a career offender enhancement under the federal sentencing guidelines.

Mitchell argues that the district court therefore should have assigned him a non-

career offender guideline range and, alternatively, that the district court

erroneously believed it could not consider Mitchell’s purported non-career

offender status as a sentencing factor under 18 U.S.C. § 3553(a).

Mitchell’s assertion that, due to changes in law since his 2007 conviction,

his N.R.S. § 453.337 conviction no longer qualifies as a predicate is incorrect.1 In

United States v. Figueroa-Beltran (Figuera-Beltran I), 892 F.3d 997 (9th Cir.

2018), this Court held that N.R.S. § 453.337 was not a categorical match with the

federal Controlled Substances Act (“C.S.A.”) but certified to the Nevada Supreme

1 The parties do not dispute that one of Mitchell’s other prior offenses, his conviction for violating California Health and Safety Code § 11351.5, still qualifies as a career offender predicate.

2 Court the question whether the statute is divisible, see id. at 1002–04. In turn, the

Nevada Supreme Court held that “the identity of a substance” listed in N.R.S.

§ 453.337 “is an element that must be proven to sustain a conviction under” the

statute, “rather than a means of committing the offense.” Figueroa-Beltran v.

United States (Figueroa-Beltran II), 136 Nev. 386, 396 (2020). “In light of the

guidance provided by the Nevada Supreme Court,” this Court then held “that

§ 453.337 is a divisible statute.” United States v. Figueroa-Beltran (Figueroa-

Beltran III), 995 F.3d 724, 733 (9th Cir. 2021). Mitchell is therefore incorrect to

assert that N.R.S. § 453.337 is indivisible.

Mitchell argues that whether his N.R.S. § 453.337 conviction is a career

offender predicate remains an open question because Figueroa-Beltran III did not

specifically address the retroactivity of the Nevada Supreme Court’s interpretation

of the statute. But “[t]he theory of a judicial interpretation of a statute is that the

interpretation gives the meaning of the statute from its inception, and does not

merely give an interpretation to be used from the date of the decision.” United

States v. City of Tacoma, 332 F.3d 574, 580 (9th Cir. 2003). The Nevada Supreme

Court’s and this Court’s conclusion that N.R.S. § 453.337 is divisible therefore

applies to Mitchell’s Nevada conviction.

Because the Nevada statute is divisible, this Court applies the modified

categorical approach to determine whether Mitchell’s N.R.S. § 453.337 conviction

3 was for possession of a controlled substance listed in the C.S.A., thereby

qualifying as a career offender predicate. Figueroa-Beltran III, 995 F.3d at 733.

To apply the modified categorical approach, a federal court “examine[s] judicially

noticeable documents of conviction ‘to determine which statutory phrase was the

basis for the conviction.’” United States v. Martinez-Lopez, 864 F.3d 1034, 1039

(9th Cir. 2017) (en banc) (quoting Descamps v. United States, 570 U.S. 254, 263

(2013)). Such judicially noticeable documents include “a limited class of materials,

such as charging documents, plea agreements, and judgments of conviction.”

Figueroa-Beltran III, 995 F.3d at 731; see also Shepard v. United States, 544 U.S.

13, 16 (2005).

Here, the Nevada information from Mitchell’s N.R.S. § 453.337 conviction

charges that he “unlawfully and knowingly ha[d] in his possession and under his

dominion and control a Schedule I controlled substance, to wit: cocaine.”

Similarly, Mitchell’s guilty plea memorandum states that, as to the N.R.S.

§ 453.337 count, he “willfully, unlawfully and knowingly ha[d] in [his] possession

. . . cocaine” with the intent to distribute. The C.S.A. lists cocaine as a Schedule II

controlled substance. See 21 U.S.C. § 812. Mitchell’s conviction under N.R.S.

§ 453.337 accordingly constitutes a career offender predicate offense because he

“pled or was found guilty of the elements constituting a federal” controlled

substances offense. Martinez-Lopez, 864 F.3d at 1039.

4 Because, under current law, Mitchell has at least two prior felony

convictions for a controlled substance offense, he still qualifies as a career

offender. See U.S.S.G. § 4B1.1(a). Mitchell’s argument that the district court

erred by not considering his purported non-career offender status therefore fails.

AFFIRMED.