United States v. Mark Joshua Mitchell

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 20, 2019
• Docket: 18-12890
• Status: Unpublished

Opinion

Case: 18-12890 Date Filed: 03/20/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12890 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00039-MCR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK JOSHUA MITCHELL,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(March 20, 2019)

Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges. Case: 18-12890 Date Filed: 03/20/2019 Page: 2 of 4

PER CURIAM:

Mark Mitchell appeals his 240-month total sentence after pleading guilty to

seven counts of interstate transportation of stolen property, in violation of 18

U.S.C. § 2314. He argues that the district court erred (1) by running his 120-month

sentence on Count 1 consecutively to the 120-month sentence that ran concurrently

on Counts 2 through 7, and (2) by running 60 months of his 240-month total

sentence concurrently to anticipated terms of imprisonment in three state court

cases, instead of running the entire sentence concurrently to the anticipated state

sentences.

We review de novo the district court’s interpretation and application of the

sentencing guidelines. United States v. Moran, 778 F.3d 942, 959 (11th Cir.

2015). The sentencing court’s factual determinations are reviewed for clear error.

Id. At sentencing, “[a] court may consider any information (including hearsay),

regardless of its admissibility at trial, in determining whether factors exist that

would enhance a defendant's sentence, provided that the information is sufficiently

reliable.” United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999).

Section 5G1.3(c) of the Sentencing Guidelines provides that where “a state

term of imprisonment is anticipated to result from another offense that is relevant

conduct to the instant offense of conviction under the provisions of subsections

2 Case: 18-12890 Date Filed: 03/20/2019 Page: 3 of 4

(a)(1), (a)(2), or (a)(3) of § 1B1.3 . . ., the sentence for the instant offense shall be

imposed to run concurrently to the anticipated term of imprisonment.” U.S.S.G.

§ 5G1.3(c). Section 1B1.3(a) explains that “relevant conduct” is conduct that may

be considered to determine “(i) the base offense level where the guideline specifies

more than one base offense level, (ii) specific offense characteristics and (iii) cross

references in Chapter Two, and (iv) adjustments in Chapter Three.” U.S.S.G.

§ 1B1.3(a); see also U.S.S.G. § 1B1.3(a)(1), (a)(2), (a)(3).

Nonetheless, sentencing judges retain their common law discretion “to select

whether the sentences they impose will run concurrently or consecutively with

respect to other sentences that they impose, or that have been imposed . . . in state

proceedings,” including “where a federal judge anticipates a state sentence that has

not yet been imposed.” United States v. Setser, 566 U.S. 231, 236-37 (2012).

Also, the district court must impose a sentence “sufficient, but not greater

than necessary, to comply with the purposes” listed in § 3553(a)(2), including the

need to reflect the seriousness of the offense, promote respect for the law, provide

just punishment for the offense, deter criminal conduct and protect the public from

the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). The court also

must consider the nature and circumstances of the offense and the history and

characteristics of the defendant. 18 U.S.C. § 3553(a)(1). In addition, “[n]o

limitation shall be placed on the information concerning the background, character,

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and conduct of a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate sentence.”

18 U.S.C. § 3661.

Here, the district court did not err by running 60 months of Mitchell’s

240-month total sentence concurrently with an anticipated state term of

imprisonment. Because none of the underlying burglaries were relevant conduct as

defined in U.S.S.G. § 1B1.3, and as that guideline is cross-referenced in U.S.S.G.

§ 5G1.3(c), § 5G1.3(c) was not implicated in Mitchell’s case. Instead, the district

court properly considered the underlying state-crime burglaries as part of its

analysis of the sentencing factors outlined in 18 U.S.C. § 3553(a); and 18 U.S.C.

§ 3661 explicitly places no limit on the information a sentencing judge may

consider in imposing a reasonable sentence. Besides, Mitchell’s argument that

§ 5G1.3(c) necessarily required the court to run his sentence for Count 1

concurrently to the sentence for Counts 2 through 7 fails, because as previously

explained, § 5G1.3 did not apply. Most important, nothing in the Sentencing

Guidelines limits a sentencing judge’s common law authority to decide whether to

run a sentence concurrently or consecutively, even when a state term of

imprisonment is anticipated.

AFFIRMED.