United States of America v. John Willis Mitchell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4410
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WILLIS MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00250-FL-1)
Submitted: February 25, 2014 Decided: March 20, 2014
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Cindy H. Popkin-Bradley, CINDY H. POPKIN-BRADLEY ATTORNEY AT
LAW, Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Willis Mitchell pled guilty, without a plea
agreement, to failure to register as a sex offender, in
violation of 18 U.S.C. § 2250(a) (2012). The district court
upwardly departed from Mitchell’s advisory Guidelines range,
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a)(1), p.s. (2012), and sentenced Mitchell to thirty-one
months’ imprisonment. On appeal, Mitchell argues that his
sentence is procedurally and substantively unreasonable. We
affirm.
We review a sentence for procedural and substantive
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). The same
standard applies whether the sentence is “inside, just outside,
or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal quotation marks omitted), cert. denied, 133 S. Ct. 274
(2012). In determining procedural reasonableness, we consider
whether the district court properly calculated the defendant’s
advisory Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2012) factors, selected a sentence based on clearly
erroneous facts, or failed to explain sufficiently the selected
sentence. Gall, 552 U.S. at 49-51. If the sentence is free of

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significant procedural error, we review it for substantive
reasonableness, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id. at 51.
When a district court imposes a sentence that falls
outside of the applicable Guidelines range, we consider “whether
the sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). In conducting this review, we must give due deference to
the sentencing court’s decision because it has “flexibility in
fashioning a sentence outside of the Guidelines range,” and need
only “set forth enough to satisfy [us] . . . that it has
considered the parties’ arguments and has a reasoned basis” for
its decision. United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir. 2011) (internal quotation marks and alterations
omitted).
Section 4A1.3 authorizes an upward departure when
“reliable information indicates that the defendant’s criminal
history category substantially underrepresents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1), p.s.
We have stated that “[s]ection 4A1.3 was drafted in classic

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catch-all terms for the unusual but serious situation where the
criminal history category does not adequately reflect past
criminal conduct or predict future criminal behavior.” United
States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003).
Mitchell first argues that his sentence is
procedurally unreasonable because the district court judge had
already decided to upwardly depart from the advisory Guidelines
range prior to the hearing. We, however, find no evidence that
the judge was anything but fair and impartial when making her
decision to upwardly depart from the advisory Guidelines range.
Mitchell also argues that his sentence is procedurally
unreasonable because: (1) the court primarily focused on
punishing him for the underlying sex offenses rather than his
failure to register; (2) the court did not provide a sufficient
explanation for the extent of the upward departure; and (3) the
court ignored the § 3553(a) sentencing factors, especially
mitigating considerations. Because Mitchell “[drew] arguments
from § 3553 for a sentence different than the one ultimately
imposed,” he has preserved these issues for appeal. United
States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
We find no merit to Mitchell’s arguments. First,
contrary to Mitchell’s contention, a review of the record
demonstrates that the court was primarily concerned with
punishing Mitchell for failing to register as a sex offender, as

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it consistently noted Mitchell’s repeated failure to do so.
Next, we conclude that the district court’s explanation for the
extent of the upward departure was sufficient and reiterate that
there is no requirement for the district court to “go through a
ritualistic exercise in which it mechanically discusses each
criminal history category [or offense level] it rejects en route
to the category [or offense level] that it selects.” United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (internal
quotation marks omitted). Finally, we conclude that the court
adequately considered the § 3553(a) factors, as it specifically
remarked on Mitchell’s extensive arrest record, family
background, health, education, substance abuse issues, financial
circumstances, likelihood of recidivism, and lack of respect for
the law. See 18 U.S.C. § 3553(a)(1), (2).
Mitchell also contends that his sentence is
substantively unreasonable because the majority of his unscored
convictions were misdemeanors and he needs mental health
treatment, not an upward departure. We find that Mitchell’s
extensive criminal history justified the court’s decision to
grant an upward departure. Mitchell’s unscored convictions
include serious offenses and ones that demonstrate Mitchell’s
lack of respect for authority. Moreover, the probation officer
reported troubling events that did not lead to Mitchell’s arrest
and listed eighteen additional charges for which Mitchell was

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never convicted. See USSG § 4A1.3(a)(2), p.s. (listing factors
courts may consider when determining whether to grant upward
departure).
We also find that Mitchell’s violent behavior toward
women and his failure to register were not ancient history and,
therefore, it was not unreasonable for the district court to
conclude that Mitchell was likely to reoffend. Finally, a
review of the record reveals that the court thoroughly
considered Mitchell’s need for mental health treatment. Indeed,
the court ordered, as conditions of Mitchell’s supervised
release, that he participate in mental health and anger
management treatment and recommended that Mitchell take
advantage of available mental health programs while
incarcerated. Thus, far from ignoring the individual
circumstances of Mitchell’s case, we conclude that the court
carefully crafted an appropriate sentence — upward departure and
all.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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