On appeal from The United States District Court for the Western District of Oklahoma - Oklahoma City ">

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Date: 12-24-2021

Case Style:

United States of America v. Kenith Mitchell

Case Number: 19-6069

Judge: Monroe G. McKay


On appeal from The United States District Court for the Western District of Oklahoma - Oklahoma City

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

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Denver, CO - Criminal defense lawyer represented defendant with an indecent exposure charge. He Now Appeals the 24-month sentence.

While in custody at a federal transfer center in Oklahoma, Defendant
masturbated in the presence of a guard while in her office. Based on this incident,
Defendant pled guilty pursuant to a plea agreement to indecent exposure under Okla.
Stat. tit. 21 § 1021(A)(1), assimilated into the federal criminal code under the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. The district court sentenced
Defendant to a 24-month term of imprisonment to run consecutively to a sentence
Defendant began serving in November 2017 pursuant to a Maryland conviction.
In his first appeal, Defendant argued that the government had breached the
terms of the plea agreement by suggesting his sentence should run consecutively to
his Maryland sentence. The government conceded to this argument and accordingly
filed a motion asking us to vacate the judgment and remand for resentencing, which
we granted. On remand, the district court again imposed a 24-month term of
imprisonment, this time running concurrently with Defendant’s Maryland sentence.
In this second appeal, Defendant advances two arguments. First, he contends
that, at re-sentencing, the district court should have reduced his sentence from 24
months to 20 months in order to account for the roughly four-month period between
the two sentencing proceedings, for which he believes he will not receive time-served
credit from the Bureau of Prisons. The premise of this argument appears to be that
his new sentence is not deemed to have commenced until the date he was resentenced (rather than the date he was initially sentenced), and a four-month
reduction is needed to offset the difference in starting dates caused by the
government’s breach.
The premise of Defendant’s argument is flawed. Under controlling Bureau of
Prisons policy, “[w]hen a federal sentence is vacated without disturbing its
underlying conviction, . . . the post-remand sentence [is treated] as commencing on
the same date as the original sentence.” Blood v. Bledsoe, 648 F.3d 203, 208–09 (3d
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 2
Cir. 2011); see also Manni v. English, No. 17-3192-JWL, 2018 WL 338153, at *4 (D.
Kan. Jan. 9, 2018) (“When a judgment is vacated solely for the purpose of
resentencing, the sentence is deemed to run from the same date as the original
sentence.”), aff’d 727 F. App’x 530 (10th Cir. 2018); cf. Allen v. Crabtree, 153 F.3d
1030, 1033 (9th Cir. 1998) (“[V]acation of a sentence pending resentencing does not
result in the commencement of another sentence ordered to be served consecutively
to the vacated one.”) Thus, Defendant’s new sentence will be deemed to have
commenced on the same date as his initial sentence. There was no need for the
district court to reduce Defendant’s sentence in order to account for a later
commencement date, and there is therefore no “error” for us to correct.
Second, Defendant challenges the substantive reasonableness of his sentence,
contending that his 24-month term is too long in comparison to defendants found
guilty of similar conduct.1
“We review a district court’s sentencing decision for
substantive reasonableness under an abuse-of-discretion standard,” which “applies
without regard to whether the district court imposes a sentence within or outside the
advisory guidelines range.” United States v. Cookson, 922 F.3d 1079, 1090 (10th
Cir. 2019) (internal quotation marks omitted). “When reviewing a sentence for
substantive reasonableness, we focus on whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” Id. at 1091 (internal quotation marks omitted).
Defendant does not challenge his sentence’s procedural reasonableness.
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 3
For defendants sentenced under the ACA, state law sets the minimum and
maximum term of imprisonment a district court may impose, and, within this range,
the court “should apply the federal sentencing guidelines to the extent possible.”
United States v. Garcia, 893 F.2d 250, 254 (10th Cir. 1989). Thus, after determining
the range set by state law, courts typically still calculate the guidelines range by
applying a federal sentencing guideline analogous to the assimilated state offense.
See, e.g., United States v. Flonnory, 630 F.3d 1280, 1282 (10th Cir. 2011); United
States v. Sevenstar, 384 F. App’x 823, 825–26 (10th Cir. 2010); see also U.S.S.G.
§ 2X5.1. However, if no guideline is sufficiently analogous to the offense, courts
only apply § 3553’s provisions. See U.S.S.G. § 2X5.1; see also United States v.
Romero, 432 F. App’x 790, 794–96 (10th Cir. 2011) (affirming ACA sentence
imposed pursuant to § 3553 where no analogous guideline applied).
The parties agree that Defendant’s 24-month sentence was within the range of
30 days to 10 years of imprisonment set by Oklahoma law. See Okla. Stat. tit. 21
§ 1021(A). The parties also agree, and the court ruled, that there is no sufficiently
analogous guideline that could be applied and thus no guidelines range that could be
From here, the parties’ views diverge. Defendant argues that, in
determining his sentence, the district court was obliged to consider the need to avoid
Defendant contends that, because no guidelines range applies to his offense,
we should not give his sentence the presumption of reasonableness normally
accorded to sentences within a properly calculated guidelines range. See United
States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). The government does not
dispute this position. We have never addressed the issue, and we will assume,
without deciding, that the presumption of reasonableness does not apply here.
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 4
unwarranted sentencing disparities between his sentence and the sentences of
defendants with similar records who have been found guilty of similar conduct. See
18 U.S.C. § 3553(a)(6).3
Citing language from previous decisions, however, the
government argues that courts should not consider sentencing disparities under
§ 3553(a)(6) unless both the defendant and his comparators are federal defendants
sentenced under the guidelines, while here Defendant was not sentenced under the
guidelines because no analogous guideline existed.4
We need not resolve this dispute
because, even assuming § 3553(a)(6) applies, Defendant’s sentence is not
As an initial matter, the comparators Defendant identifies are not similarly
situated with him. He points to federal regulations imposing a maximum six-month
sentence for indecent exposure in federal parks and a military installation. See 18
U.S.C. § 1865(a); 32 C.F.R. §§ 935.40(f), 935.50; 36 C.F.R. §§ 1.3, 2.34(a)(2). But
engaging in this type of behavior in a prison is far different than doing so in a park or
3 See 18 U.S.C. § 3551(a) (stating “a defendant who has been found guilty of
an [ACA] offense . . . shall be sentenced in accordance with the provisions of this
chapter,” which includes § 3553(a)(6)).
4 See United States v. Wiseman, 749 F.3d 1191, 1196 (10th Cir. 2014)
(explaining the court “did not have authority to consider state-federal disparities . . .
because § 3553(a)(6) applies only when addressing sentencing disparities among and
between federal defendants sentenced under the federal sentencing guideline
regime”); United States v. Verdin-Garcia, 516 F.3d 884, 899 (10th Cir. 2008) (noting
§ 3553(a)(6) does not require consideration of sentencing disparities among codefendants, but instead “requires a judge to take into account only disparities
nationwide among defendants with similar records and Guideline calculations”
(emphasis omitted)).
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 5
military installation. Prisoners and their guards in a very real sense are captive to
individuals who have shown a propensity to victimize others, flout rules, and defy
authorities in an environment where doing so can create heightened dangers for
guards, prisoners, and the public at large. See generally United States v. Jones, 254
F. App’x 711, 720 (10th Cir. 2007). The federal enclaves Defendant points to do not
share these characteristics, so his conduct is simply not on par with that of defendants
who violate the regulations he cites. See United States v. Lente, 759 F.3d 1149, 1168
(10th Cir. 2014) (“[D]isparate sentences are allowed where the disparity is explicable
by the facts on the record.” (internal quotation marks omitted)).
Defendant also points to other defendants who were sentenced under the ACA
for violating Okla. Stat. tit. 21 § 1021(A)(1) or similar state laws. We are not
persuaded by these proposed comparisons. The defendant in United States v. Phalan,
39 F. App’x 6 (4th Cir. 2002), who received no prison term, is not an apt comparator
because he did not engage in the conduct in a prison environment, there is no
indication the conduct occurred in an aggravated manner, and nothing indicates he
engaged in this type of behavior on other occasions.5
See Lente, 759 F.3d at 1168.
As the district court explained, “[D]efendant went about committing th[e]
offense” in a “somewhat aggravated way.” (R. vol. III at 14.) Defendant entered a
guard’s office while she ate lunch. The guard told him to leave and turned her back
to him, but Defendant remained and began masturbating behind her. When the guard
turned around and saw him, she yelled at him to stop and leave. Defendant left but
returned to the office minutes later and asked to use the guard’s computer, causing
her to fear for her safety. Later that day, another prison employee witnessed
Defendant masturbating while watching an attorney meet with her client in an
adjacent cell. In addition to the instant offense, Defendant, in less than a year,
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 6
The defendant in United States v. Engelhorn, 122 F.3d 508 (8th Cir. 1997), who
received a one-year term, is likewise an inapt comparator because he was convicted
of attempted indecent exposure. Had he been convicted of indecent exposure, he
might have received up to a two-year term of imprisonment. See Engelhorn 122 F.3d
at 510. And the defendant in United States v. Hamlin, No. 5:18-cr-00027-D-1 (W.D.
Okla.), who received a year-and-a-day term, also makes a poor comparator because
his sentence ran consecutive to, not concurrently with, a term he was already serving.
Cf. United States v. Johnson, 565 F. App’x 771, 772–73 (10th Cir. 2013) (affirming
district court’s decision to avoid disparity between similarly situated co-defendants
by imposing consecutive sentences on one and concurrent sentences on the other).
Beyond failing to identify suitable comparators, Defendant’s argument also
falls short because the district court determined that avoiding unwarranted sentencing
disparities carried little weight compared to other § 3553(a) factors. “[C]onsideration
of unwarranted sentence disparities is but one factor that a district court must balance
against the other § 3553(a) factors in arriving at an appropriate sentence.” Lente, 759
F.3d at 1168 (internal quotation marks omitted). “Of course, the district court need
not afford equal weight to each § 3553(a) factor,” Cookson, 922 F.3d at 1094, and
“[w]e give substantial deference to the district court’s weighing of these factors,”
United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018).

accrued nine disciplinary charges for engaging in sexual acts and one disciplinary
charge for indecent exposure while in Bureau of Prisons custody.
Appellate Case: 19-6069 Document: 010110288896 Date Filed: 01/15/2020 Page: 7
Here, the district court took into account all of the § 3553(a) factors. The
court addressed Defendant’s arguments regarding sentencing disparities but accorded
that factor little weight because “comparing indecent exposure defendants and
determining whether any two are similarly situated is . . . extraordinarily difficult,” as
“there really is a fairly broad range of gravity to the offense conduct that could come
under this heading.” (R. vol. I at 31.) Instead, the court determined that Defendant’s
criminal history and the nature and circumstances of the offense (and to a lesser
extent the need for deterrence and incapacitation) were the predominant factors to
consider and accorded them greater weight. On the record before us, we cannot say
the court abused its discretion in its weighing of the § 3553(a) factors.

Outcome: In the end, Defendant’s arguments do not persuade us the district court abused
its discretion in imposing a 24-month concurrent term. The sentence is AFFIRMED.

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