UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES OF AMERICA 

Plaintiff, 

v. 

VERNARD A. MITCHELL, 

Defendant. 

Crim. No. 05-00110 (EGS) 

MEMORANDUM OPINION 

 Defendant Vernard A. Mitchell (“Mr. Mitchell”) moves to 

reduce his sentence pursuant to Section 404(b) of the First Step 

Act, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018). 

In 2005, Mr. Mitchell was arrested on drug and firearm charges. 

A jury found him guilty on four of five counts, including the 

unlawful possession with intent to distribute five grams or more 

of cocaine base (“crack cocaine”). Mr. Mitchell was sentenced to 

a total concurrent term of 262 months of imprisonment, and the 

United States Court of Appeals for the District of Columbia 

Circuit (“D.C. Circuit”) affirmed his sentence. 

At the time of sentencing, Mr. Mitchell’s offense for the 

unlawful possession with intent to distribute five grams or more 

of crack cocaine carried a five-year mandatory minimum sentence 

and a maximum sentence of forty years of imprisonment. In 2010 

and 2018, the Fair Sentencing Act, Pub. L. No. 111-220, 124 
2 

Stat. 2372 (2010), and the First Step Act were enacted to, inter 

alia, reduce the harsh penalties for cocaine-based offenses by 

eliminating the five-year mandatory minimum sentence and 

lowering the maximum sentence to twenty years of imprisonment 

for offenses involving less than 28 grams of crack cocaine. To 

further address the sentencing disparity between crack cocaine 

and powder cocaine offenses, President Barack H. Obama issued 

executive grants of clemency for several individuals, including 

one for Mr. Mitchell in 2016. As a result, Mr. Mitchell’s total 

concurrent sentence was reduced to 210 months of imprisonment. 

To date, Mr. Mitchell has served more than fourteen years in 

prison, he has not incurred a single disciplinary infraction, 

and he has completed various educational and vocational 

programs. Under these circumstances, the Court will exercise its 

discretion under Section 404(b) of the First Step Act to reduce 

his sentence to time-served. 

I. Background 

The factual and procedural background is straightforward. 

In 2005, Mr. Mitchell was indicted on five drug and firearm 

charges. Indictment, ECF No. 5 at 1-3.1 The evidence at the fiveday jury trial in 2006 revealed that Mr. Mitchell was inside an 

 

1 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document. 
3 

apartment where law enforcement recovered, among other things, 

21 grams or less2 of crack cocaine. See Gov’t’s Mem. in Aid of 

Sentencing, ECF No. 59 at 2; see also Presentence Investigation 

Report (“PSR”) at 4 ¶ 8.3 The jury found Mr. Mitchell guilty on 

four of five counts. E.g., United States v. Mitchell, 953 F. 

Supp. 2d 162, 163-64 (D.D.C. 2013) (“Mitchell II”); Mitchell v. 

United States, 841 F. Supp. 2d 322, 326 n.1 (D.D.C. 2012) 

(“Mitchell I”).4 

 

2 The PSR states that 21 grams of cocaine base were recovered 

from the apartment. PSR at 4 ¶ 8; see also Def.’s Sentencing 

Mem., ECF No. 58 at 9 n.5 (stating that the quantity of cocaine 

base in this case is “21 grams”). The government’s Memorandum in 

Aid of Sentencing asserts that the facts at trial established 

that law enforcement seized, inter alia, “approximately 14.5 

grams of crack cocaine.” Gov’t’s Mem. in Aid of Sentencing, ECF 

No. 59 at 2. 

3 The United States Probation Office (the “Probation Office”) 

prepared the PSR on May 10, 2006, and revised it on July 11, 

2006. PSR at 1. The Receipt and Acknowledgement of the PSR was 

filed on July 25, 2006. Receipt & Acknowledgment of PSR, ECF No. 

40 at 1. The PSR was not filed on the docket. See generally

Criminal Action No. 05-00110. 

4 Mr. Mitchell was charged with the following five counts: 

(1) unlawful possession of a firearm by a person convicted of a 

crime punishable by imprisonment for a term exceeding one year, 

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“Count 

One”); (2) unlawful possession of 5 grams or more of cocaine 

base with the intent to distribute it, in violation of 21 U.S.C. 

§ 841(a)(1) and (b)(1)(B)(iii) (“Count Two”); (3) unlawful 

possession of heroin with intent to distribute it, in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count Three”); 

(4) unlawful possession of cannabis with intent to distribute 

it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (“Count 

Four”); and (5) using, carrying, and possessing a firearm during 

a drug trafficking offense, in violation of 18 U.S.C. 

§ 924(c)(1) (“Count Five”). Mitchell I, 841 F. Supp. 2d at 326 
4 

Using the 2005 United States Sentencing Guidelines Manual, 

the Probation Office calculated Mr. Mitchell’s sentencing 

guideline range. PSR at 5 ¶ 12. The Probation Office grouped 

Counts One through Four, id. at 5 ¶ 15, and determined that 

Mr. Mitchell’s base offense level was 28 since the offense 

involved the equivalency of at least 400 kilograms but less than 

700 kilograms of marijuana. Mitchell II, 953 F. Supp. 2d at 164 

(citing PSR at 5-6 ¶ 17 (citing U.S.S.G. § 2D1.1(a)(3), 

(c)(6))). Because Mr. Mitchell was found to be in possession of 

two firearms that were related to the offense, the Probation 

Office applied a two-level upward adjustment, which adjusted his 

offense level to 30. Id. (citing PSR at 6 ¶ 22). 

Mr. Mitchell’s career-offender status increased his 

adjusted offense level from 30 to 34. PSR at 6 ¶ 23. He had two 

prior convictions—one designated as a “controlled substance 

offense” and the other a “crime of violence”—in the Superior 

Court of the District of Columbia (“Superior Court”): (1) a 1989 

conviction for attempted possession with intent to distribute 

cocaine (“PWID”); and (2) a 1997 conviction for attempted 

robbery. See Mitchell II, 953 F. Supp. 2d at 164; see also PSR 

at 7, 9 ¶¶ 29, 32. The Probation Office calculated his total 

offense level of 34 by applying the statutory maximum sentence 

 

n.1. This Court dismissed the fifth count after the jury found 

him not guilty on that count. Id. at 326. 
5 

for Mr. Mitchell’s most serious offense—Count Two, which was 40 

years—to the career-offender table in Chapter Four of the 

Sentencing Guidelines. Mitchell II, 953 F. Supp. 2d at 164. That 

table provided that for offenses that have a statutory maximum 

of 25 years or more, the offense level is 34 for a “career 

offender.” Id. (citing U.S.S.G. § 4B1.1). As a result, 

Mr. Mitchell’s criminal history category increased from V to VI. 

Id. The Probation Office determined that Mr. Mitchell’s 

applicable guideline range was 262 to 327 months. Id. (citing 

PSR at 14 ¶ 69 (citing U.S.S.G. § 5(A))). The Court adopted 

those calculations. See generally J., ECF No. 71. 

In 2007, the Court sentenced Mr. Mitchell to 120 months of 

imprisonment on Count One, 262 months of imprisonment on Count 

Two, 240 months of imprisonment on Count Three, and 60 months of 

imprisonment on Count Four, to run concurrently for Counts One 

through Four, respectively. Mitchell I, 841 F. Supp. 2d at 326 

(citing J., ECF No. 71 at 3). Count Two—the crack cocaine 

offense—carried a five-year mandatory minimum sentence and a 

forty-year maximum sentence. See 21 U.S.C. § 841(b)(1)(B)(iii) 

(2005). The Court imposed concurrent terms of supervised release 

on Mr. Mitchell with three years on Count One, five years on 

Count Two, three years on Count Three, and three years on Count 

Four. J., ECF No. 71 at 4. The D.C. Circuit affirmed the Court’s 

judgment in 2008. United States v. Mitchell, 304 F. Appx 880, 
6 

881 (D.C. Cir. 2008). 

Since 2009, Mr. Mitchell has sought relief under 28 U.S.C. 

§ 2255 and 18 U.S.C. § 3582(c). See, e.g., Mitchell I, 841 F. 

Supp. 2d at 333 (denying petitioner’s pro se motion to vacate, 

set aside, or correct sentence); Mitchell II, 953 F. Supp. 2d at 

165-66 (denying petitioner’s pro se motion for a sentence 

reduction under Section 3582(c) because the Fair Sentencing Act, 

was not retroactive; transferring petitioner’s pro se motion to 

vacate, set aside, or correct sentence to the D.C. Circuit). The 

D.C. Circuit granted Mr. Mitchell’s emergency motion for 

authorization to file a successive motion pursuant to Section 

2255 in light of Johnson v. United States, 135 S. Ct. 2551 

(2015), see Order, In re Vernard A. Mitchell, No. 16-3039 (D.C. 

Cir. June 23, 2016) (per curiam), but Mr. Mitchell later 

withdrew his motion, see Withdrawal of Mot., ECF No. 126 (styled 

as a “Notice of Voluntary Dismissal”). 

In 2010, Congress enacted, and President Obama signed into 

law, the Fair Sentencing Act, which eliminated the mandatory 

minimum sentence and lowered the maximum sentence to twenty 

years for offenses involving less than twenty-eight grams of 

crack cocaine. See Pub. L. 111-220, § 2, 124 Stat. 2372 

(striking “5 grams” and inserting “28 grams” in 21 U.S.C. 

§ 841(b)(1)(B)(iii)); see also 21 U.S.C. § 841(b)(1)(C). The 

Fair Sentencing Act did not apply retroactively to defendants, 
7 

like Mr. Mitchell, whose convictions and original sentences 

became final before the Act was enacted on August 3, 2010. 

Dorsey v. United States, 567 U.S. 260, 264 (2012); see also 

Mitchell II, 953 F. Supp. 2d at 166. A few years later, a number 

of individuals serving sentences under the statutory penalties 

for crack cocaine offenses received reduced sentences through 

executive grants of clemency. See Def.’s Ex. A, ECF No. 133-2 at 

1-9. 

On November 22, 2016, President Obama commuted 

Mr. Mitchell’s total sentence of imprisonment to a term of 210 

months, leaving intact his term of supervised release and the 

conditions imposed by this Court. See, e.g., Def.’s Ex. A, ECF 

No. 133-2 at 2-9; Press Release, President Obama Grants 

Commutations, The White House (Nov. 22, 2016), 

https://obamawhitehouse.archives.gov/the-pressoffice/2016/11/22/president-obama-grants-commutations. On 

December 6, 2016, this Court entered an Order to that effect. 

Order, ECF No. 125 at 1. 

In 2018, the First Step Act became law, giving retroactive 

effect to the statutory penalty provisions of the Fair 

Sentencing Act. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 

5222. Under the First Step Act, a district court has the 

discretion to reduce a defendant’s sentence if the court 

determines that the defendant is eligible for relief. Id.
8 

On May 14, 2019, Mr. Mitchell filed an emergency motion to 

reduce his sentence under Section 404(b) of the First Step Act. 

See Def.’s Emergency Mot. to Reduce Sentence (“Def.’s Mot.”), 

ECF No. 127. The Court ordered the government to respond to 

Mr. Mitchell’s motion, Minute Order of May 16, 2019, and the 

government filed its opposition on June 3, 2019, see Gov’t’s 

Opp’n, ECF No. 132. Mr. Mitchell filed his reply on June 7, 

2019, see Def.’s Reply, ECF No. 133. Mr. Mitchell’s motion is 

now ripe and ready for the Court’s adjudication. 

II. Analysis 

Under Section 404(b) of the First Step Act, “[a] court that 

imposed a sentence for a covered offense may, on motion of the 

defendant . . . impose a reduced sentence as if sections 2 and 3 

of the Fair Sentencing Act . . . were in effect at the time the 

covered offense was committed.” Pub. L. No. 115-391, § 404(b), 

132 Stat. 5194, 5222. “[T]he term ‘covered offense’ means a 

violation of a Federal criminal statute, the statutory penalties 

for which were modified by section 2 or 3 of the Fair Sentencing 

Act . . ., that was committed before August 3, 2010.” Id. § 

404(a). In other words, the First Step Act effectively 

authorizes a federal district court to retroactively apply the 

statutory penalty provisions of the Fair Sentencing Act to a 

covered offense, such as the unlawful possession of five grams 

or more of crack cocaine with the intent to distribute it, and 
9 

thereby reduce a defendant’s sentence. United States v. Powell, 

360 F. Supp. 3d 134, 138 (N.D.N.Y. 2019). 

In moving for a reduced sentence, Mr. Mitchell advances 

three primary arguments. First, he argues that he is eligible 

for a sentence reduction of seventy-seven months of imprisonment 

and a three-year term of supervised release under Section 404(b) 

of the First Step Act because: (1) this Court sentenced him to a 

“covered offense”—Count Two—involving “5 grams or more” of crack 

cocaine; and (2) the Fair Sentencing Act amended 21 U.S.C. § 

841(b)(1)(B) (2005) to remove the five-year mandatory minimum 

sentence. Def.’s Mot., ECF No. 127 at 6. Next, Mr. Mitchell 

contends that President Obama’s commutation of his sentence does 

not affect his eligibility. Id. Finally, Mr. Mitchell urges this 

Court to reduce his sentence to seventy-seven months of 

imprisonment and three years of supervised release because he no 

longer qualifies as a “career offender” under current law that 

takes into account a lower Guidelines range. Id. at 7-11. 

The government responds that “[b]ut for the commutation of 

his sentence, [Mr. Mitchell] would be eligible for a sentence 

reduction under the First Step Act” because he “was sentenced 

before August 3, 2010, for a covered offense . . . and 

application of the Fair Sentencing Act reduces both his 

statutory penalties and his guideline range.” Gov’t’s Opp’n, ECF 

No. 132 at 8 (emphasis added). The government argues that a 
10 

reduced sentence for Mr. Mitchell is not warranted because: 

(1) his career-offender offense level is now 32; and (2) his 

commuted sentence of 210 months of imprisonment reflects the 

modified Guidelines range of 210 to 262 months after the Fair 

Sentencing Act modified the statutory penalties for his covered 

offense. Id. at 9, 13. 

Perhaps realizing that its position as to Mr. Mitchell’s 

ineligibility under the First Step Act will not prevail, the 

government requests that this Court impose a sentence of “time 

served,” id. at 14, rather than Mr. Mitchell’s requested term of 

seventy-seven months of imprisonment, to avoid Mr. Mitchell 

receiving “credit for ‘overserved time,’ which may affect 

resolution of a later violation of supervised release because 

the Bureau of Prisons will credit the overserved time toward a 

later term of imprisonment for violation of supervised release.” 

Id. at 15. The government does “not oppose a reduction in 

[Mr. Mitchell’s] term of supervised release to three years” if 

the Court finds that he is eligible for a sentence reduction 

under the First Step Act. Id. at 14 n.4. In response, 

Mr. Mitchell does not oppose a sentence of “time-served.” Def.’s 

Reply, ECF No. 133 at 7. 

After explaining the Court’s authority to reduce a sentence 

under Section 404 of the First Step Act, the Court will address 

each of the parties’ arguments in turn. 
11 

A. The Court’s Authority to Impose a Reduced Sentence 

Under the First Step Act 

The parties agree that the Court may exercise its 

discretion to impose a reduced sentence under the First Step 

Act. See Gov’t’s Opp’n, ECF No. 132 at 13 (“Section 404(c) of the 

First Step Act makes clear that a sentence reduction is 

discretionary.”); see also Def.’s Reply, ECF No. 133 at 18-19 

(stating that a district court’s power under the First Step Act 

is “broad because Congress anticipated complicated cases and 

wanted the courts to have discretion and flexibility to 

determine the appropriate remedy for defendants who were 

sentenced under laws that are now widely recognized as 

misguided, unjust, and racially motivated.”). Indeed, “Congress 

clearly intended relief under § 404 of the First Step Act to be 

discretionary[.]” United States v. Rose, No. 03-CR-1501 (VEC), 

2019 WL 2314479, at *7 (S.D.N.Y. May 24, 2019). 

Section 404(c) of the First Step Act expressly provides 

that “[n]othing in this section shall be construed to require a 

court to reduce any sentence pursuant to this section.” Pub. L. 

No. 115-391, § 404(c), 132 Stat. 5194, 5222. The First Step Act 

places two limits on the district court’s authority. Id. A 

district court “shall” not reduce a sentence: (1) “if the 

sentence was previously imposed or previously reduced in 

accordance with the amendments made by sections 2 and 3 of the 
12 

Fair Sentencing Act[;]” and (2) “if a previous motion made under 

this section to reduce the sentence was, after the date of 

enactment of this Act, denied after a complete review of the 

motion on the merits.” Id. Nothing else in Section 404 limits 

the Court’s authority to reduce a sentence. See id.

It is undisputed that “neither limitation applies in this 

case.” Def.’s Mot., ECF No. 127 at 3 n.1; see generally Gov’t’s 

Opp’n, ECF No. 132. Nonetheless, the government argues that “in 

the context of this limited proceeding under 18 U.S.C. § 

3582(c), the Court does not have authority to grant any 

reduction.” Gov’t’s Opp’n, ECF No. 132 at 1. Section 

3582(c)(1)(B) provides that “the court may modify an imposed 

term of imprisonment to the extent otherwise expressly permitted 

by statute or by Rule 35 of the Federal Rules of Criminal 

Procedure[.]” 18 U.S.C. § 3582(c)(1)(B) (emphasis added). 

Mr. Mitchell argues that “[i]t is immaterial whether this motion 

proceeds via § 3582(c)(1)(B) or through the independent grant of 

authority given [to] this Court in the First Step Act itself” 

because the First Step Act expressly allows a district court to 

“‘impose a reduced sentence’ . . . ‘as if sections 2 and 3 of 

the Fair Sentencing Act . . . were in effect at the time the 

covered offense was committed[.]’” Def.’s Reply, ECF No. 133 at 

10 (quoting Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 

5222). 
13 

Section 3582(c)(2) “authorizes a district court to reduce 

an otherwise final sentence pursuant to a Guidelines amendment 

if a reduction is consistent with the [United States Sentencing] 

Commission’s policy statements.” Dillon v. United States, 560 

U.S. 817, 818 (2010); see also 18 U.S.C. § 3582(c)(2). 

Acknowledging that “the First Step Act does not incorporate 

§ 3582(c)(2),” Gov’t’s Opp’n, ECF No. 132 at 11, the government 

contends that “[t]he Court’s ability to reduce a sentence in 

this context is limited[,]” id. at 5 (citing Dillon, 560 U.S. at 

824). The government asserts that the First Step Act, “using the 

same term—‘reduce[]’—that appears in “[Section 3582(c)(2)] does 

not permit ‘further sentencing’ or a ‘resentenc[ing].’” Id. at 

11 (quoting Dillon, 560 U.S. at 825 (citation omitted)). The 

government asks this Court to rely on the “analogous 

circumstances” in Section 3582(c)(2) proceedings for any 

reduction of Mr. Mitchell’s sentence. Id. at 10. Mr. Mitchell 

argues that Section 3582(c)(2) is irrelevant because “the 

Sentencing Commission is not involved” in this case and the text 

of the First Step Act does not reference the Sentencing 

Guidelines or policy statements. Def.’s Reply, ECF No. 133 at 

11. 

Courts have reached different conclusions on the open 

question of whether Section 404(b) motions are governed by 
14 

18 U.S.C. § 3582(c).5 This Court joins the courts that have 

decided that the issue need not be resolved in order for the 

Court to grant relief under the First Step Act. See, e.g., 

United States v. Sampson, 360 F. Supp. 3d 168, 170 (W.D.N.Y. 

2019) (“The legal issues raised by the parties may need to be 

resolved at some point, but they need not all be decided now, in 

this case.” (emphasis in original)). In Sampson, the court 

recognized that the dispute as to whether 18 U.S.C. § 3582(c) 

applies to Section 404(b) motions was chiefly one about “whether 

a full resentencing was required, or whether a simple 

 

5 Some courts have concluded that Section 404(b) motions fall 

under either § 3582(c)(1)(B) or § 3582(c)(2). See, e.g., United 

States v. Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2 

(W.D.N.Y. Mar. 6, 2019) (construing “motion as one brought under 

18 U.S.C. § 3582 (c)(1)(B), which permits modification of an 

imposed term of imprisonment to the extent expressly permitted 

by statute.”); United States v. Lewis, No. CR 08-0057 JB, 2019 

WL 2192508, at *19 (D.N.M. May 21, 2019) (“First Step Act 

motions for sentence reduction are 18 U.S.C. § 3582(c)(2) 

proceedings.”). Other courts have held that § 3582(c)(2) or 

3582(c)(1)(B) does not govern motions brought under the First 

Step Act. See, e.g., United States v. Martinez, No. 04-CR-48-20 

(JSR), 2019 WL 2433660, at *3 (S.D.N.Y. June 11, 2019) (holding 

that § 3582(c)(2) did not govern the defendant’s case because 

his “sentencing range was lowered by statute, not by the 

Commission.”); Rose, 2019 WL 2314479, at *6 (“Section 

3582(c)(1)(B) is . . . not itself a source of authority for 

sentence modifications, nor does it delineate the scope of what 

the district court should consider when resentencing is 

authorized by another provision.”); United States v. Coleman, 

No. 04-CR-278-PP, 2019 WL 1877229, at *6 (E.D. Wis. Apr. 26, 

2019) (finding that § 3582(c)(2) was inapplicable because “[t]he 

defendant is not asking for a reduced sentence “based on a 

sentencing range that has subsequently been lowered by the 

Sentencing Commission pursuant to 28 U.S.C. 994(o),” under § 

3582(c)(2).”). 
15 

modification of sentence would suffice.” Id. at 171. The court 

rejected any request for a full resentencing to the extent the 

defendant sought a formal resentencing for a specified term of 

imprisonment because “the appropriate remedy [was] simply to 

reduce defendant’s sentence to the time he has already served.” 

Id. 

This Court takes a similar approach. Mr. Mitchell does not 

seek a full, de novo, or plenary resentencing.6 See generally 

Def.’s Reply, ECF No. 133. Although Mr. Mitchell initially 

sought a specified term of seventy-seven months of imprisonment, 

Def.’s Mot., ECF No. 127 at 2, he does not oppose a sentence of 

“time-served,” Def.’s Reply, ECF No. 133 at 7. Upon a finding of 

eligibility, the government requests that the Court impose a 

sentence of “time-served” for Mr. Mitchell. Gov’t’s Opp’n, ECF 

No. 132 at 14-15. The government cites case law for the 

proposition that the Court should avoid imposing “a term of 

months [of imprisonment] less than the period that defendant has 

already served[.]” Id. (citing United States v. Laguerre, No. 

02-cr-30098, 2019 WL 861417, at *3-*4 (W.D. Va. Feb. 22, 2019); 

United States v. Jackson, No. 5:03-CR-30093, 2019 WL 613500, at 

*2 (W.D. Va. Feb. 13, 2019)). The Court agrees. 

 

6 The government argues that Section 404 of the First Step Act 

does not authorize a plenary resentencing. Gov’t’s Opp’n, ECF 

No. 132 at 10. Mr. Mitchell has conceded this point by not 

responding to it. See generally Def.’s Reply, ECF No. 133. 
16 

B. Mr. Mitchell Is Eligible for a Sentence Reduction 

Under the First Step Act 

The government acknowledges that Mr. Mitchell would be 

eligible for a sentence reduction under the First Step Act 

because he was sentenced before August 3, 2010, for a covered 

offense, and application of the Fair Sentencing Act reduces both 

his statutory penalties and his Guidelines range. Gov’t Opp’n, 

ECF No. 132 at 8. But the government argues that the First Step 

Act does not apply to Mr. Mitchell’s commuted sentence.7 Id. As 

correctly stated by the government, “a number of courts have 

rejected this argument.” Id. at 8 n.1 (collecting cases). 

According to Mr. Mitchell, “[e]very court to address this claim 

has rejected it.” Def.’s Reply, ECF No. 133 at 1. 

The government’s argument that President Obama imposed a 

“new sentence” on Mr. Mitchell through commutation is 

unpersuasive. See Gov’t’s Opp’n, ECF No. 132 at 8. To support 

its position, the government relies on United States v. Surratt, 

855 F.3d 218, 219 (4th Cir. 2017) (en banc). In Surratt, the 

Fourth Circuit dismissed as moot a habeas challenge to a 

 

7 The Court observes that courts have rejected this argument. 

See, e.g., United States v. Razz, No. 05-80011-CR, 2019 WL 

2204068, at *8 (S.D. Fla. May 22, 2019) (rejecting “the 

Government’s “presidentially-imposed” sentence argument[.]”); 

United States v. Pugh, No. 5:95 CR 145, 2019 WL 1331684, at *3 

(N.D. Ohio Mar. 25, 2019) (same); United States v. Biggs, No. 05 

CR 316, 2019 WL 2120226, at *2 (N.D. Ill. May 15, 2019) (same); 

United States v. Dodd, 372 F. Supp. 3d 795, 798 (S.D. Iowa 2019) 

(same). 
17 

mandatory life sentence for a crack cocaine offense after a 

presidential commutation. Id. However, the mootness doctrine 

does not apply to Mr. Mitchell’s situation because “[a] case 

becomes moot . . . only when it is impossible for a court to 

grant any effectual relief whatsoever to the prevailing party.” 

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) 

(citation and internal quotation marks omitted); see also United 

States v. Walker, No. 1:94-CR-5, 2019 WL 1226856, at *2 (N.D. 

Ohio Mar. 15, 2019) (finding that “the Fourth Circuit’s 

application of the mootness doctrine in Surratt does not apply 

here” because there was relief available for the defendant under 

the First Step Act). Accordingly, the First Step Act makes it 

possible for the Court to grant relief to Mr. Mitchell. 

The government’s reliance on the concurring opinion in 

Surratt is equally unpersuasive. The concurring opinion stated 

that the petitioner was “no longer serving a judicially imposed 

sentence, but a presidentially commuted one.” Surratt, 855 F.3d 

at 219 (Wilkinson, J., concurring). That statement is 

inconsistent with Supreme Court precedent. See Nixon v. United 

States, 506 U.S. 224, 232 (1993). 

The President’s pardon power is “in no sense an overturning 

of a judgment of conviction by some other tribunal; it is ‘[a]n 

executive action that mitigates or sets aside punishment for a 

crime.’” Id. (quoting Black’s Law Dictionary 1113 (6th ed. 
18 

1990)) (emphasis in original); see also United States v. 

Buenrostro, 895 F.3d 1160, 1164-65 (9th Cir. 2018) (“Like a full 

pardon, a presidential commutation does not overturn the 

sentence imposed by the sentencing court. It simply ‘mitigates 

or sets aside punishment.’”) (quoting Nixon, 506 U.S. at 232)). 

Several courts have ruled that the First Step Act applies 

to defendants, like Mr. Mitchell, who received presidential 

commutations. See, e.g., Dodd, 372 F. Supp. 3d at 798 (“[T]he 

existence of a grant of clemency does not foreclose relief under 

the First Step Act.”); Biggs, 2019 WL 2120226, at *2 (same). The 

text of the First Step Act does not prohibit relief for commuted 

sentences. Biggs, 2019 WL 2120226, at *2 (“Because Congress 

chose not to exempt commuted sentences, the court declines to 

read such an exemption into the statute.”). Because President 

Obama’s executive grant of clemency for Mr. Mitchell did not 

impose a new sentence, but only reduced the original one, the 

Court therefore finds that Mr. Mitchell is eligible for relief 

under the First Step Act. 

C. Mr. Mitchell Is Entitled to a Reduced Sentence of 

“Time-Served” 

Having determined that Mr. Mitchell is eligible for relief 

under the First Step Act, the Court must determine the extent to 

which Mr. Mitchell’s sentence will be reduced. To reach that 

determination, the parties agree that this Court may consider 
19 

the sentencing factors set forth in 18 U.S.C. § 3553(a) and any 

post-sentencing conduct. See, e.g., Gov’t’s Opp’n, ECF No. 132 

at 14 (“[U]nder Pepper v. United States, 562 U.S. 476 (2011), 

the Court may consider post-offense conduct, either positive or 

negative, in assessing whether to adjust a previously imposed 

sentence.”); Def.’s Mot., ECF No. 127 at 10; Def.’s Reply, ECF 

No. 133 at 9. 

“Importing the standard set forth in § 3553(a) makes 

sentencing proceedings under the First Step Act more predictable 

to the parties, more straightforward for district courts, and 

more consistently reviewable on appeal.” Rose, 2019 WL 2314479, 

at *8. In applying the factors set forth in 18 U.S.C. § 3553(a) 

to guide the exercise of discretion under the First Step Act, 

some courts have relied on the Supreme Court’s decision in 

Pepper to consider a defendant’s post-sentencing rehabilitation 

and conduct. See Rose, 2019 WL 2314479, at *8; see also United 

States v. Nance, No. 8:08CR449, 2019 WL 2436210, at *3 (D. Neb. 

June 10, 2019). In Pepper, the Supreme Court held that “when a 

defendant’s sentence has been set aside on appeal, a district 

court at resentencing may consider evidence of the defendant’s 

postsentencing rehabilitation . . . .” 562 U.S. at 481. Courts 

have interpreted the principle articulated in Pepper to permit 

district courts to consider post-sentencing conduct evidence 

that “does not always benefit the defendant” and “evidence of 
20 

bad acts occurring after the defendant was originally 

sentenced.” Rose, 2019 WL 2314479, at *8; see also Nance, 2019 

WL 2436210, at *3 (stating that consideration of “a defendant’s 

post-incarceration conduct when exercising discretion to reduce 

a defendant’s term of incarceration due to retroactive changes 

in statutes or sentencing guidelines” is consistent with 

Pepper). The Court is persuaded that consideration of 

Mr. Mitchell’s post-sentencing conduct and the factors set forth 

in 18 U.S.C. § 3553(a) is appropriate under Section 404(b) of 

the First Step Act. See Rose, 2019 WL 2314479, at *8-9. 

Because Mr. Mitchell’s crack cocaine offense qualifies as a 

covered offense, e.g., Def.’s Mot., ECF No. 127 at 6; Gov’t’s 

Opp’n, ECF No. 132 at 8-9, the Court may impose a reduced 

sentence as if Sections 2 and 3 of the Fair Sentencing Act were 

in effect at the time the covered offense was committed in 2005. 

See Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. 

Mr. Mitchell possessed 21 grams or less of crack cocaine after 

prior Superior Court convictions. Mr. Mitchell would have faced 

no mandatory minimum sentence and a maximum sentence of twenty

years of imprisonment if the Fair Sentencing Act had been in effect 

in 2005. According to the government, the statutory penalties are 

set by 21 U.S.C. § 841(b)(1)(C) instead of § 841(b)(1)(B), but 

Mr. Mitchell remains a “career offender” because his offense level 

is calculated by the career-offender guideline. Gov’t’s Opp’n, ECF 
21 

No. 132 at 9. And “his resulting guideline range is now 210 to 262 

months instead of 262 to 327 months.” Id. 

Mr. Mitchell disagrees, arguing that his Guidelines range 

is seventy-seven to ninety-six months of imprisonment without 

the career-offender enhancement under current law because his 

prior Superior Court convictions do not qualify as predicates 

for the career-offender designation under the current 

Guidelines. Def.’s Mot., ECF No. 127 at 7-9. In the alternative, 

Mr. Mitchell asserts that the Court may, “as the government 

asks, calculate his Guidelines range under an obsolete 

interpretation of the law from the time of his original 

sentencing (i.e., with an erroneous career offender 

enhancement), and then vary downwards . . . .” Def.’s Reply, ECF 

No. 133 at 7. 

Today, Mr. Mitchell would not qualify as a career offender 

under current law,8 but he would qualify as a career offender 

 

8 The law of this Circuit is clear: attempted robbery and 

attempted drug distribution no longer qualify as predicates for 

career-offender status. See, e.g., United States v. Winstead, 

890 F.3d 1082, 1090–92 (D.C. Cir. 2018) (holding that attempted 

drug distribution does not qualify as a predicate offense for 

career-offender status); United States v. Sheffield, 832 F.3d 

296, 315 (D.C. Cir. 2016) (holding that “D.C.’s attempted 

robbery statute simply does not qualify as a crime of violence 

as a categorical matter.”). The parties agree that, if the Court 

sentenced Mr. Mitchell today, his prior Superior Court 

convictions–the 1989 PWID and the 1997 attempted robbery—would 

not qualify as predicates for the career-offender designation 

because those prior offenses no longer meet the definition of 

“controlled substance offense” and “crime of violence.” See 
22 

under the law at the time of his original sentencing. The 

question remains, however, whether this Court may calculate 

Mr. Mitchell’s Guidelines range with the career-offender 

enhancement. Courts presented with this issue have taken 

different approaches. Compare Coleman, 2019 WL 1877229, at *8 

(“[The First Step Act] does not authorize the court to disturb 

[the sentencing judge’s] conclusion that the defendant qualified 

as a career offender.”), with United States v. Anthony, 

No. 6:07-CR-00008-1, 2019 WL 2216548, at *2 (W.D. Va. May 22, 

2019) (imposing a “timed-served” sentence where “[u]nder the 

First Step Act, the statutory range for Defendant’s offense, 

taking into account Defendant’s career offender status, would be 

188–235 months imprisonment.”). 

Applying the First Step Act, courts have imposed reduced 

sentences of “timed-served” for defendants below the careeroffender Guidelines range. See, e.g., United States v. Newton, 

No. 5:02-CR-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 

2019) (granting the defendant’s motion under the First Step Act 

where he served 198 months in custody; imposing a “time-served” 

sentence; and finding that “under the current Sentencing 

Guidelines and the 18 U.S.C. § 3553 factors, a sentence beneath 

[the] Guideline[s] range [of 262-327 months] [was] warranted.”); 

 

Def.’s Mot., ECF No. 127 at 7-8; see also Gov’t’s Opp’n, ECF No. 

132 at 9. 
23 

United States v. Pierre, 372 F. Supp. 3d 17, 23 (D.R.I. 2019) 

(imposing “time-served” sentence where the defendant’s 

Guidelines range was 262 to 327 months’ imprisonment at the time 

of sentencing). 

In United States v. Biggs, the defendant was a “career 

offender” with a Guidelines range of 360 months to life 

imprisonment, and he served more than fourteen years in prison. 

2019 WL 2120226, at *2. The court noted that his “armed career 

criminal” designation was “cause for concern about recidivism,” 

but that designation “was based on drug crimes rather than 

crimes of violence.” Id. at *4. The court explained: “Because 

the Fair Sentencing Act and the First Step Act reflect 

Congress’s judgment that shorter prison sentences adequately 

reflect the seriousness of crack cocaine offenses, reduction of 

Biggs’s sentence aligns the statutory purposes of sentencing 

with the goal of the reform legislation.” Id. at *4. The court 

recognized that the defendant was a “model inmate, obtaining his 

GED and a certificate of apprenticeship in welding. He incurred 

only three minor disciplinary infractions over the last fourteen 

years in custody.” Id. The court imposed a reduced sentence of 

“time served” because it was “sufficient but not greater than 

necessary to accomplish the sentencing goals in 18 U.S.C. § 

3553(a).” Id.

Mr. Mitchell’s case is even stronger. He has incurred no 
24 

disciplinary infractions over his last fourteen years in prison. 

See Def.’s Reply, ECF No. 133 at 17; see also Gov’t’s Opp’n, ECF 

No. 132 at 14 (“Commendably, [Mr. Mitchell] has incurred no 

disciplinary infractions and has taken advantage of various 

rehabilitative programs while serving his sentence in this 

case.”). Furthermore, Mr. Mitchell has obtained his GED and 

taken a variety of educational and vocational courses. See, 

e.g., Def.’s Mot., ECF No. 127 at 10; Def.’s Ex. A, ECF No. 127-

2 at 1-5; Def.’s Ex. B, ECF No. 127-2 at 7; Def.’s Ex. B, ECF 

No. 133-2 at 11; Def.’s Ex. D, ECF No. 133-2 at 15. Upon 

consideration of the factors set forth in 18 U.S.C. § 3553(a) 

and Mr. Mitchell’s post-sentencing rehabilitation, the Court 

will exercise its discretion under the First Step Act to impose 

a reduced sentence of “time-served,” which is sufficient and not 

longer than necessary to achieve the goals of sentencing.9 The 

Court also imposes a reduction in Mr. Mitchell’s term of 

supervised release to three years. 

Finally, the parties disagree about whether the Court 

should delay Mr. Mitchell’s release for a period of five days 

 

9 The Court need not hold a hearing on Mr. Mitchell’s motion 

because he agreed to “waive his right to a hearing and presence 

for resentencing if the Court wishes to impose a sentence of 

time served or less, because such a hearing would delay his 

release.” Def.’s Reply, ECF No. 133 at 13; see also Gov’t’s 

Opp’n, ECF No. 132 at 12 (stating that a hearing is not required 

under Section 404 of the First Step Act). 
25 

from the date of the Court’s Order. See Gov’t’s Opp’n, ECF No. 

132 at 15 n.5; see also Def.’s Reply, ECF No. 133 at 19-20. 

The government argues that the five-day delay is warranted 

because: 

This period will enable the Bureau of Prisons 

(1) to review the defendant for possible civil 

commitment as a sexually dangerous person, as 

required by 18 U.S.C. § 4248; (2) to notify 

victims and witnesses of the release of an 

offender as required by 18 U.S.C. § 3771; (3) to 

notify law enforcement officials and sex 

offender registration officials of the release 

of a violent offender or sex offender pursuant 

to 18 U.S.C. §§ 4042(b) and (c); and (4) to 

permit adequate time to collect DNA samples 

pursuant to 42 U.S.C. § 14135a. This period of 

time also will ensure that BOP personnel have 

sufficient time to present defendant with 

documentation regarding his obligations while on 

supervised release, thereby minimizing the 

chance that defendant is released without an 

adequate understanding of his post-release 

obligations. This will inure to defendant’s 

benefit and will also promote public safety.

Gov’t’s Opp’n, ECF No. 132 at 15 n.5. Mr. Mitchell responds that 

“there are no allegations of sexual misconduct and no victims to 

notify.” Def.’s Reply, ECF No. 133 at 20. According to 

Mr. Mitchell, Federal Public Defender offices across the nation 

have reported that the “[Bureau of Prisons] rarely needs any 

more than [one] or [two] days for release planning” in First 

Step Act cases. Id. In consideration of the cases in which 

courts have delayed the execution of defendants’ releases, see 

Gov’t’s Opp’n at ECF No. 132 at 15 n.5 (collecting cases), the 

Court will direct the Bureau of Prisons to delay execution of 
26 

the Court’s Order for no more than two calendar days to allow 

the Bureau of Prisons to make the appropriate and necessary 

arrangements for Mr. Mitchell’s release. 

III. Conclusion 

For the reasons set forth above, the Court GRANTS

Mr. Mitchell’s Emergency Motion to Reduce Sentence Pursuant to 

Section 404(b) of the First Step Act. Mr. Mitchell’s previously 

imposed total sentence of imprisonment is reduced to timeserved, and his previously imposed concurrent term of supervised 

release is reduced to three years. Except as otherwise provided, 

all provisions of the Judgment, ECF No. 71, and the Order, ECF 

No. 125, shall remain in effect. The Bureau of Prisons is 

authorized to delay the execution of the Court’s Order for no 

more than two calendar days after its issuance. An appropriate 

Order accompanies this Memorandum Opinion. 

SO ORDERED 

Signed: Emmet G. Sullivan 

United States District Judge 

June 27, 2019