FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50429

Plaintiff-Appellee, D.C. No.

v.  2:07-cr-00474-

GAF-1 PATRICK J. MITCHELL, AKA Pep,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

January 11, 2010—Pasadena, California

Filed October 20, 2010

Before: Alfred T. Goodwin, William C. Canby, Jr. and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Goodwin;

Concurrence by Judge O’Scannlain

17303
COUNSEL

Gary P. Burcham, Burcham & Zugman, San Diego, California, for the defendant-appellant.

Jean-Claude Andre, Assistant United States Attorney, Criminal Appeals Division, Los Angeles, California, for the

plaintiff-appellee.

OPINION

GOODWIN, Senior Circuit Judge:

Patrick J. Mitchell appeals his 180-month imprisonment

sentence as a career offender under § 4B1.1 of the United

States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A)(iii). We affirm and join other

circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career

offender, the sentencing court may depart downward to

account for the disparity between treatment of crack cocaine

and powder cocaine in the Guidelines.

FACTUAL AND PROCEDURAL BACKGROUND

The Federal Bureau of Investigation (“FBI”) and the Los

Angeles Police Department had identified Mitchell as a member of the Black P-Stone Bloods street gang and a supplier of

crack cocaine. On May 23, 2005, an FBI confidential informant purchased two ounces of crack cocaine from Mitchell

for $1,000. Forensic analysis showed that the plastic bag

Mitchell sold to the informant contained 52.4 grams of crack

cocaine.

Pursuant to a plea agreement, Mitchell pled guilty to a

single-count information charging him with distributing a

17306 UNITED STATES v. MITCHELL
mixture containing 52.4 grams of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). This crime requires a

mandatory minimum of 10 years of imprisonment. Id.

§ 841(b)(1)(A)(iii). Because Mitchell pled guilty preindictment, the government agreed not to use his prior felony

narcotics convictions to enhance his mandatory minimum

sentence under 21 U.S.C. §§ 802(44), 841, 851 and to recommend that he be sentenced at the low end of the Sentencing

Guidelines range. Nonetheless, the parties acknowledged that

the crime to which Mitchell was pleading guilty was a felony

narcotics trafficking crime, and that his criminal history could

subject him to an enhanced Guidelines range as a career

offender. 

Concluding that Mitchell had four predicate state felony

convictions, the Probation Office calculated his offense level

as a career offender under § 4B1.1(b) of the U.S. Sentencing

Guidelines. See U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 4B1.1(b) (2007) (amended May 1, 2008).1 Following objections to and revisions of Mitchell’s presentence

report (“PSR”), the district judge conducted a sentencing

hearing on September 22, 2008. The judge determined that

the four felony convictions all constituted predicates for

Mitchell’s career-offender status, although only two were

required. The judge then considered the 18 U.S.C. § 3553(a)

factors and concluded: “Mitchell’s record is lengthy. He has

had virtually no periods in his life that were truly crime free.”

Mitchell’s Sentencing Guidelines range was 262-327

months of imprisonment. Regarding the incarceration portion

of Mitchell’s sentence, the district judge explained that “the

1Mitchell’s four prior state felony convictions were: (1) a 1989 conviction for possession of cocaine for sale, in violation of Cal. Health & Safety

Code § 11351.5; (2) a 1991 conviction for first-degree burglary, in violation of Cal. Penal Code § 459; (3) a 1994 conviction for possession of a

weapon in jail, in violation of Cal. Penal Code § 4574(a); (4) a 1997 conviction for making a terrorist threat, in violation of Cal. Penal Code § 422.

UNITED STATES v. MITCHELL 17307
single most important variable in my exercise of discretion,

which is going to result in a sentence below the government’s

recommendation, is the crack powder differential.” Noting

that the disparity was “enormous” and “disproportionate,” the

judge determined that “it requires some exercise of discretion

and judgment, but there are limitations.” The judge stated that

Mitchell’s “lengthy serious criminal history,” including “violence,” “threats of violence,” and “drug dealing” necessitated

“protecting the public” and required “a substantial sentence.”

Although the statutory minimum was 10 years, 21 U.S.C.

§ 841(b)(1)(A), which Mitchell had requested, the judge

stated that a sentence of 120 months was “too great an adjustment . . . the adjustment downward should [not] go that far.”

From the low end of Mitchell’s Sentencing Guidelines

range, 262 months, the judge departed downward 43 months

on the basis of the crack/powder cocaine disparity and credited Mitchell for 39 months served in state custody on a

related crime. Consequently, the district judge sentenced

Mitchell to 180 months of imprisonment, followed by 5 years

of supervised release, and ordered him to pay a $100 special

assessment. Mitchell is in custody serving his 180-month sentence. He challenges his predicate state convictions that were

used to qualify him for career-offender status under the Sentencing Guidelines and the district judge’s consideration of

the crack/powder disparity in his sentence.

DISCUSSION

I. Prior State Felony Convictions Qualifying as Predicates

for Sentencing Guidelines, Career-Offender Status

[1] We review de novo a district court’s “interpretation of

the Sentencing Guidelines and its determination that a defendant qualifies as a career offender” under U.S.S.G. § 4B1.1.

United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir.

2008). To qualify as a career offender, the defendant must be

(1) at least 18 at the time he committed the subject crime of

17308 UNITED STATES v. MITCHELL
conviction, which must be (2) “a felony that is either a crime

of violence or a controlled substance offense,” and (3) the

defendant must have “at least two prior felony convictions of

either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a). Only the third requirement is at issue in

this appeal.

[2] Mitchell concedes that, under Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717-18 (9th Cir. 2003), his 1997 conviction under Cal. Penal Code § 422 for making a terrorist threat

is a crime of violence. Appellant’s Br. at 15. Therefore,

Mitchell’s career-offender status is substantiated under the

Sentencing Guidelines as long as one of his three other prior

state convictions is an appropriate predicate.

[3] Mitchell’s 1994 conviction for possession of a weapon

in jail also is a crime of violence. United States v. Young, 990

F.2d 469 (9th Cir. 1993). Young held that “[i]n determining

whether an offense ‘involves conduct that presents a serious

potential risk of physical injury to another,’ U.S.S.G.

§ 4B1.2(1)(ii), courts may consider the statutory definition of

the crime and may also consider the conduct ‘expressly

charged[ ] in the count of which the defendant was convicted,’ U.S.S.G. § 4B1.2, comment. (n.2),” although either

component is sufficient. 990 F.2d at 472. Therefore, Young’s

possession of a shank in jail, in violation of Cal. Penal Code

§ 4574(a), created a viable risk that a person might be injured,

which made it a crime of violence under the statutory definition.2

Like the Young defendant, Mitchell violated § 4574(a) by pos2The Young panel recognized: 

Whether we confine our inquiry to the statutory definition of the

crime, the possession of a deadly weapon in jail, or consider the

specific conduct charged, the possession of a ‘shank’ in jail, our

conclusion is the same. In a prison setting, the possession by an

inmate of a deadly weapon indeed presents a serious potential of

physical injury to another. 

990 F.2d at 472. 

UNITED STATES v. MITCHELL 17309
sessing a shank in jail, which was a qualifying predicate conviction. 

[4] Mitchell’s 1989 conviction for possession of cocaine

for sale, in violation of Cal. Health & Safety Code § 11351.5,

is a controlled-substance crime. This court has held that

[a] prior conviction under § 11351.5 categorically

constitutes a controlled substance offense for the

purposes of § 4B1.1 because (1) it is an offense

under state law, (2) that is punishable by imprisonment for a term exceeding one year, and (3) that prohibits the distribution or dispensing of a controlled

substance or the possession of a controlled substance

with intent to distribute or dispense.

United States v. Charles, 581 F.3d 927, 934 (9th Cir. 2009).

This state controlled-substance felony was an additional qualifying predicate conviction. 

[5] Mitchell “d[id] not challenge” the Probation Office’s

determination that his 1991 prior conviction for first-degree

burglary under Cal. Penal Code § 459 “qualifies as a career

offender predicate.” The district judge determined Mitchell’s

1991 first-degree burglary conviction to be a career-offender

predicate because Mitchell “concedes the first-degree burglary conviction does count.” Whether a conviction under

§ 459 is a crime of violence is a question currently pending

in this circuit.3 Because Mitchell had three other qualifying

predicate convictions, and the Guidelines require only two to

support his career-offender sentencing status, he properly

3After Mitchell’s sentencing, this court held that conviction under § 459

of “first degree residential burglary is not a prior conviction of a crime of

violence” under the Guidelines. United States v. Aguila-Montes, 553 F.3d

1229, 1234 (9th Cir. 2009). Aquila-Montes, however, is being reconsidered en banc and is no longer valid precedent in this circuit. 594 F.3d 1080

(9th Cir. 2010). 

17310 UNITED STATES v. MITCHELL
could be sentenced as a career offender, which was recognized in his plea agreement.

II. Consideration of the Crack/Powder Disparity on a

Career-Offender Sentence 

Although Mitchell’s career-offender, Sentencing Guidelines range was 262-327 months of imprisonment, the district

judge departed downward from the low end by 43 months

because of his policy disagreement with the crack/powder

sentencing disparity. Until recently, some courts had held

that, even though judges were free to depart downward from

ordinary sentences to account for crack/powder sentencing

disparity, they could not do so when the defendant was being

sentenced as a career offender because Congress had mandated that career offender sentences should be “at or near the

maximum term,” 28 U.S.C. § 994(h). See, e.g., United States

v. Welton, 583 F.3d 494, 496 (7th Cir. 2009).

In line with such cases, the government originally argued

here that the district court had no power to depart downward

as it did. By subsequent letter, however, the government noted

that it had retreated from that position, with the consequence

that more recent cases had recognized the ability of sentencing courts to depart downward because of the crack/powder

disparity even in career-offender cases. See, e.g., United

States v. Corner, 598 F.3d 411 (7th Cir. 2009) (en banc). For

reasons that follow, we agree with Corner and uphold the

departure.

[6] In a sequential trilogy of relevant cases, the Supreme

Court has been consistent in explaining how sentencing

judges are to use the Sentencing Guidelines in formulating a

convicted defendant’s sentence. United States v. Booker, 543

U.S. 220, 245 (2005); Kimbrough v. United States, 552 U.S.

85 (2007); Spears v. United States, 129 S. Ct. 840, 843 (2009)

(per curiam). The Court has held that the Sentencing Guidelines are advisory and that sentencing judges may vary, proUNITED STATES v. MITCHELL 17311
vided that they adhere to statutory requirements. Booker, 543

U.S. 220. Because the 100-to-1 crack/powder ratio in

U.S.S.G. § 2D1.1(c) was derived from 21 U.S.C. § 841, sentencing judges considered this to be a statute-based requirement from which they could not deviate. The Court

subsequently instructed that sentencing judges may consider

a defendant’s individual circumstances, including whether the

crack/powder disparity “yields a sentence greater than necessary to achieve § 3553(a)’s purposes, even in a mine-run case.”

4

Kimbrough, 552 U.S. at 109 (internal quotation marks omitted). Because the crack/powder ratio in the Sentencing Guidelines was the decision of the Sentencing Commission and not

Congress, Kimbrough permitted sentencing judges to tailor a

sentence under § 3553(a) according to their assessment of an

individual defendant. Id. at 102-04, 110; see also United

States v. Rodriguez, 527 F.3d 221, 231 (1st Cir. 2008) (recognizing that “Kimbrough makes manifest that sentencing courts

possess sufficient discretion under section 3553(a) to consider

requests for variant sentences premised on disagreements with

the manner in which the sentencing guidelines operate”). 

When application of Kimbrough resulted in sentencing

judges varying from the Sentencing Guidelines crack/powder

ratio only when use of that ratio rendered an inappropriate

sentence, the Supreme Court further clarified that “the point

of Kimbrough” was “a recognition of district courts’ authority

to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a

particular case.” Spears v. United States, 129 S. Ct. 840, 843

(2009) (per curiam). Under the analyses of Kimbrough and

Spears, the reference in the career-offender Guidelines,

U.S.S.G. § 4B1.1, to 28 U.S.C. § 994(h) that sentences for

career offenders be “ ‘at or near’ the statutory maximum” is

4The Sentencing Commission reduced the ratio in 2007 by Amendment

706. Amendments to the Sentencing Guidelines for United States Courts,

72 Fed.Reg. 28571-28572 (2007). 

17312 UNITED STATES v. MITCHELL
a directive to the Sentencing Commission and not to sentencing courts, which are free to vary where appropriate in an

individual case. Kimbrough, 552 U.S. at 103 (quoting 28

U.S.C. § 994(h)). 

[7] In Spears, the Court stressed that the crux of Kimbrough is the recognition of “district courts’ authority to vary

from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized

determination that they yield an excessive sentence in a particular case.” 129 S. Ct. at 843. That is, the crack/powder

Guidelines and the career-offender Guideline, like all other

Guidelines, are advisory and Guidelines with which a sentencing judge is empowered to disagree, when the circumstances in an individual case warrant. Acceding to the Court’s

confirmation of the advisory only use of the Sentencing

Guidelines, the circuits that recently have addressed the

crack/powder differential in sentencing a career offender have

concluded that “district judges are at liberty to reject any

Guideline on policy grounds—though they must act reasonably when using that power.” United States v. Corner, 598

F.3d 411, 415 (7th Cir. 2010) (en banc) (vacating sentence in

crack/powder disparity, career-offender case and overruling

prior precedent); see United States v. Michael, 576 F.3d 323,

327-28 (6th Cir. 2009); United States v. Boardman, 528 F.3d

86, 87-88 (1st Cir. 2008); United States v. Sanchez, 517 F.3d

651, 664-65 (2d Cir. 2008).5 We agree with this analysis and

now follow it in this circuit.

5

See also United States v. Vasquez, 558 F.3d 1224 (11th Cir. 2009),

vacated 130 S. Ct. 1135 (2010) (remanding for reconsideration “in light

of the position asserted by the Solicitor General in her brief for the United

States filed on November 16, 2009,” which rejects the premise that a sentencing judge lacks authority to deviate from the advisory Sentencing

Guidelines range when crack/powder disparity is involved in sentencing

a career offender). As Chief Judge Easterbrook states in Corner, in vacating Vasquez for reconsideration under the analysis advanced by the Solicitor General, the Supreme Court unanimously “indicates receptivity” to

those views sufficient to induce the Seventh Circuit to adopt them en banc

and to overrule former precedent. 598 F.3d at 414. 

UNITED STATES v. MITCHELL 17313
On appeal, we review a sentence for abuse of discretion as

to reasonableness. United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc). Our reasonableness review consists

of two parts: (1) procedural error and (2) substantive reasonableness. Id. There is no issue in this case regarding the correct calculation of Mitchell’s Guidelines sentence,

consideration of the § 3553(a) factors and the advisory nature

of the Guidelines, or failure to explain the sentence, which

would show procedural error. Id.

[8] Therefore, our review is solely for substantive reasonableness of Mitchell’s sentence. We consider the totality of

the circumstances, which includes the degree of variance from

the Guidelines sentencing range, and accord deference to the

sentencing judge’s decision that the § 3553(a) factors substantiate departure from the Guidelines sentencing range. Id.

Reversal is not justified simply “because we think a different

sentence is appropriate.” Id.

We have determined that the sentencing judge correctly

decided that Mitchell was a career offender under the Guidelines with at least two qualifying predicate state felonies.

Mitchell contends that the sentencing judge should have eliminated the crack/powder disparity and sentenced him under

the 151-188-month range, as if he had sold 52.4 grams of

powder cocaine instead of crack.6 In exercising his sentencing

discretion, the judge specified that the most important variable was the disproportionality of the crack/powder differential. The judge explained that the statutory minimum

requested by Mitchell of 10 years was an excessive downward

adjustment. Although Mitchell’s Guidelines sentencing range

6Mitchell’s trafficking of 52.4 grams of crack cocaine resulted in a statutory maximum of life imprisonment with a corresponding careeroffender, base-offense level of 37. 21 U.S.C. § 841(b)(1)(A)(iii); U.S.S.G.

§ 4B1.1(b)(A). If he had trafficked 52.4 grams of powder cocaine, then his

statutory maximum would have been 20 years of imprisonment with a

career-offender, base-offense level of 32. 21 U.S.C. § 841(b)(1)(B)(iii);

U.S.S.G. § 4B1.1(b)(C). 

17314 UNITED STATES v. MITCHELL
was 262-327 months of imprisonment, the judge used the

lower end and the § 3553(a) factors to adjust Mitchell’s sentence downward to 180 months, including credit for his 39-

month state imprisonment term in a related case. 

[9] In sentencing Mitchell, the judge explained his disagreement with the Sentencing Commission’s underlying policy decision of incorporating the crack/powder disparity in the

Sentencing Guidelines and allowed for it in departing downward in Mitchell’s sentence. The judge similarly disagreed

with the Sentencing Commission’s Guideline that a career

offender’s sentence must be at or near the statutory maximum

sentence pursuant to 28 U.S.C. § 994(h). As the Supreme

Court through Booker, Kimbrough, and Spears has instructed,

and as other circuits that have confronted the crack/powder

variance in the sentence of a career offender have accepted

and clarified in their circuit law, sentencing judges can reject

any Sentencing Guideline, provided that the sentence imposed

is reasonable. “No judge is required to sentence at a variance

with a Guideline, but every judge is at liberty to do so.” Corner, 598 F.3d at 416. Because the sentencing judge carefully

considered and explained his downward adjustment of Mitchell’s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the

judge was entitled to disagree with the policy behind the advisory Sentencing Guidelines and did not abuse his discretion

in sentencing Mitchell.

CONCLUSION

Mitchell has appealed his 180-month sentence for pleading

guilty to distributing 52.4 grams of crack cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), as a career offender.

The sentencing judge appropriately explained the downward

departure in Mitchell’s Guidelines sentencing range because

of his disagreement with the crack/powder disparity, despite

Mitchell’s being a career offender. We AFFIRM.

UNITED STATES v. MITCHELL 17315
O’SCANNLAIN, Circuit Judge, concurring:

I join the court’s opinion in full. I write separately only to

emphasize that our decision does not determine the standard

of review applicable to a claim that a district court has varied

too greatly from the advisory Guidelines range sentence based

on a policy disagreement with the Sentencing Guidelines.

Although we review all sentencing decisions for abuse of

discretion, Gall v. United States, 552 U.S. 38, 41 (2007), the

Supreme Court has stated that “closer review may be in order

when the sentencing judge varies from the Guidelines based

solely on the judge’s view that the Guidelines range fails

properly to reflect [18 U.S.C.] § 3553(a) considerations even

in a mine-run case,” Kimbrough v. United States, 552 U.S. 85,

109 (2007). The Court has not resolved the precise nature of

this “closer review,” and the circuits have avoided staking out

clear positions on this matter. See, e.g., United States v.

Engle, 592 F.3d 495, 502-03 (4th Cir. 2010) (remanding for

the district court to develop a more complete record to permit

such “closer review” of its decision on appeal).

We have not yet had occasion to assess the nature of this

“closer review,” and we have not done so here. Although such

review may be appropriate where a party claims that a district

court has imposed a sentence that varied too greatly from an

advisory Guidelines range sentence, this appeal presents no

such claim. The government did not bring a cross-appeal to

challenge Mitchell’s below Guidelines range sentence as substantively unreasonable. Our opinion thus considers only

Mitchell’s claim that his sentence was substantively unreasonable because the district court failed to eliminate entirely the

crack/powder disparity, and does not consider what standard

of review might have applied had the government challenged

the substantive reasonableness of Mitchell’s sentence.

17316 UNITED STATES v. MITCHELL