Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JENNIFER MITCHELL, §

§

Petitioner, §

§

v. § Civil Action No. 3:06-CV-0987-L

§ No. 3:05-CR-099-L

UNITED STATES OF AMERICA, §

§

Respondent. §

 ORDER

This is a motion to vacate, set aside, or correct sentence brought under 28 U.S.C. § 2255.

Pursuant to 28 U.S.C. § 636(b), this action was referred to the United States magistrate judge for

proposed findings and recommendation. The U.S. Magistrate Judge’s Findings, Conclusions, and

Recommendation were filed on October 25, 2006. Movant Jennifer Mitchell filed objections on

November 8, 2006.

The court agrees with Mitchell that the magistrate judge misspoke in a single finding that

“Movant admitted in her plea agreement that the criminal conduct alleged in Count Eight was

relevant conduct.” Findings at 4. Mitchell in fact agreed that the maximum penalties the court could

impose at sentencing included: 

restitution to the victims of defendant’s conduct or to the community in an amount

to be ordered by the Court. The defendant agrees, as part of her plea bargain with

the government, that the amount and recipients of any restitution shall not be limited

to that suffered by the victim or victims of the conduct described in the particular

count to which the defendant is pleading guilty, but shall include the losses incurred

by all of the victims of all of the conduct considered by the Court as “relevant

conduct” for purposes of calculating the offense level in this case . . . 

 

 Case 3:05-cr-00099-L Document 64 Filed 12/29/06 Page 1 of 2 PageID 332
Order – Page 2

Plea Agreement at 2 (emphasis added). Mitchell signed the plea agreement. The restitution imposed

in this case encompassed the conduct the court considered as “relevant conduct,” just as Mitchell

had agreed.

The court agrees with the magistrate judge that Mitchell has not demonstrated ineffective

assistance of counsel. Mitchell requested in her sentencing memorandum a sentence to include

$160,355 in restitution. Mitchell essentially argues that she agreed to that sum only if the court

sentenced her to one day in prison, not if she received a term of imprisonment greater than that. This

argument is rejected. The court asked Mitchell at her rearraignment whether she understood she

would likely be required to pay restitution to her victims as part of her sentence, and Mitchell agreed

that she did understand that. 

After making an independent review of the pleadings, file and record in this case, the

findings and conclusions of the magistrate judge, and having considered Mitchell’s objections

thereto, the court determines that the findings and conclusions of the magistrate judge are correct,

with the exception referred to above. They are therefore accepted as those of the court. Mitchell’s

Objections are overruled. Accordingly, Mitchell’s Motion Pursuant to Title 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence is hereby denied, and this action is dismissed with

prejudice.

It is so ordered this 29th day of December, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

 Case 3:05-cr-00099-L Document 64 Filed 12/29/06 Page 2 of 2 PageID 333