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United States v. Mulkern

United States District Court, D. Maine

November 20, 2017

UNITED STATES OF AMERICA
v.
BRIAN MULKERN

          ORDER ON RESENTENCING

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         After he pleaded guilty to being a felon in possession of ammunition, the Court sentenced a defendant to one hundred and eighty months incarceration consistent with the mandatory minimum sentence in the Armed Career Criminal Act (ACCA). The Court of Appeals for the First Circuit reversed this Court's ACCA determination and remanded the case for resentencing. With the ACCA inapplicable, the issue turns to whether the defendant is subject to an enhanced guideline calculation under U.S.S.G. § 2K2.1, the Guideline provision for possession of ammunition by a felon, because of a prior state conviction for robbery. The Court determines that, because there is insufficient evidence to conclude that the defendant's prior conviction for robbery is a “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A), he is subject to a base offense level of fourteen. Also, although the Court concludes that the defendant is not entitled to credit for time served while in state custody for a dismissed state charge under U.S.S.G. § 5G1.3, the Court will downward depart under U.S.S.G. § 5K2.0(a)(2)(b) and grant the Defendant a credit for the time he spent in custody on a state charge that is relevant conduct under the guidelines to the federal conviction.

         I. BACKGROUND

         A. Procedural Background

         On March 11, 2015, a federal grand jury indicted Brian Mulkern for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). Indictment (ECF No. 1). On August 14, 2015, Mr. Mulkern pleaded guilty to the single charge contained in the indictment. Minute Entry (ECF No. 35). On January 28, 2016, the Court sentenced Mr. Mulkern to 180 months in prison, five years of supervised release following his term of incarceration, and a $100.00 special assessment. Minute Entry (ECF No. 53); J. (ECF No. 55). The Court found that Mr. Mulkern was subject to the sentencing provision of the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e). The ACCA imposes a mandatory minimum fifteen year term of imprisonment for felon-in-possession cases when a defendant has three prior qualifying convictions. Id. A prior qualifying conviction is either a “violent felony” or a “serious drug offense.” Id.

         On February 3, 2016, Mr. Mulkern filed an appeal of the sentence. Notice of Appeal (ECF No. 57). On April 14, 2017, the United States Court of Appeals for the First Circuit issued its opinion and judgment, reversing this Court's ACCA determination. United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017); Op. of the U.S.Ct. of Appeals for the First Circuit (ECF No. 62); J. of the U.S.Ct. of Appeals for the First Circuit (ECF No. 63). Mr. Mulkern's prior convictions included two undisputedly qualifying burglaries, as well as a robbery and a drug trafficking conviction. Mulkern, 854 F.3d at 89. The First Circuit held that neither the robbery conviction, nor the drug trafficking conviction qualified as an ACCA predicate. Id. at 97. Mr. Mulkern, therefore, did not have three prior qualifying convictions, so the First Circuit vacated his sentence and remanded for resentencing. Id. On May 8, 2017, the First Circuit issued its mandate. Mandate of the U.S.Ct. of Appeals for the First Circuit (ECF No. 64).

         On June 8, 2017, the Government filed a sentencing memorandum. Gov't's Mem. in Aid of Sentencing (ECF No. 70) (Gov't's Mem.). On June 21, 2017, the Defendant filed his sentencing memorandum. Def.'s Sentencing Mem. (ECF No. 73) (Def.'s Mem.). On June 27, 2017, the Government filed a reply memorandum. Gov't's Reply to the Def.'s Sentencing Mem. (ECF No. 74) (Gov't's Reply).

         B. The Factual and Legal Background

         With the ACCA inapplicable, two issues remain for resentencing, both Guideline questions. The first involves Mr. Mulkern's prior robbery conviction and the applicability of the base offense level enhancement for a prior “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A), which is similar to the ACCA category of “violent felonies.” The second involves credit for time served under U.S.S.G. § 5G1.3 during the period that the state of Maine held Mr. Mulkern before his original federal sentencing.

         On August 10, 2001, a Cumberland County, Maine grand jury indicted Mr. Mulkern for robbery, among other offenses, a violation of 17-A M.R.S. § 651.[1] The state indictment charged Mr. Mulkern with robbing Cassandra Cummings and the Short Stop store in Pownal, Maine by attempting to take money using the threatened use of force. On October 25, 2001, Mr. Mulkern pleaded guilty to the robbery alleged in the indictment.

         As further background for the § 2K2.1(a)(4)(A) issue, § 2K2.1 is the Guideline section applicable to Mr. Mulkern's current offense of being a felon in possession of ammunition. Section 2K2.1 provides for different base offense levels, ranging from a low of six to a high of twenty-six, depending on the circumstances of a defendant's offense and his background. Here, there are two possibilities. First, as recommended by the PO, Mr. Mulkern's base offense level would be twenty if he committed the instant offense “subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). Second, if he does not have a prior felony conviction of either a crime of violence of a controlled substance offense, his base offense level would be lowered to fourteen. U.S.S.G. § 2K2.1(a)(7); Def.'s Mem. at 2 (“If this robbery conviction qualifies under 2K2.1 as a crime of violence, the Defendant's base offense level will be 20. If it does not qualify, the Defendant's base offense level will be 14”). If the higher base offense level applies, Mr. Mulkern's guideline sentence range will be seventy to eighty-seven months. If the lower base offense level applies, his guideline sentence range will be thirty-seven to forty-six months.

         II. THE PARTIES' POSITIONS

         A. The Robbery Conviction and “Crime of Violence”

         1. The Government's Memorandum

         The Government explains that when determining whether a state conviction is an enumerated offense under U.S.S.G. § 4B1.2(a)(2), the Court should compare the state statute against the “generic” crime using the same approaches from ACCA cases: the “categorical approach” for indivisible statutes, and the “modified categorical approach” for divisible statutes. Gov't's Mem. at 4 (citing United States v. Ramirez, 708 F.3d 295, 302 n.8 (1st Cir. 2013); United States v. Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015). The Government believes that Mr. Mulkern was convicted under either 17-A M.R.S. § 651(1)(C) or 17-A M.R.S. § 651(1)(B)(2), id. at 5, and that both provisions fit within the generic crime of robbery. Id. at 5-6. The Government concludes that Mr. Mulkern's robbery conviction qualifies as a crime of violence, which makes the base offense level 20. Id. at 5-6.

         2. The Defendant's Memorandum

         Mr. Mulkern argues that it is not clear under which subsection of § 651(1) he was convicted, and that it may have been § 651(1)(A), rather than § 651(1)(B) or (C). Def.'s Mem. at 4-5. He contends that the elements of subsection (A) do not fall wholly within the definition of generic robbery since a person could commit a robbery under subsection (A) without presenting “an immediate danger to the target of the theft.” Id. at 6 (quoting Mulkern, 854 F.3d at 93). Accordingly, Mr. Mulkern reasons that his robbery conviction does not qualify as a crime of violence. Id. He also emphasizes that each subpart of the robbery provision refers to theft, and there are many ways to commit theft under Maine law, including “any degree of force applied during theft.” Id. at 5 (quoting Mulkern, 854 F.3d at 93 (quoting Raymond v. State, 467 A.2d 161, 165 (Me. 1983)) (emphasis in original). Finally, he cites United States v. Wicklund, No. 3:15-cr-00015-HZ, slip op. (D. Or. Nov. 17, 2016) and seeks to distinguish United States v. Childers, 1:16-cr-00079-JAW (June 13, 2017). Id. Mr. Mulkern concludes that the base offense level is 14. Id. at 6.

         3. The Government's Reply

         The Government first counters that, although defendants can commit theft in ways that do not fit within the generic definition of robbery, the pertinent subsections of Maine's robbery statute are a narrower class of thefts that all fit within the generic definition of robbery. Gov't's Reply at 2-3. It also points out that Mr. Mulkern argued to the First Circuit that he was convicted under subsection (B)(2), and is only now arguing he was convicted under subsection (A). Id. at 3. The Government denies that Mr. Mulkern was convicted under subsection (A), but also argues that even if he was, subsection (A) still qualifies as a “crime of violence” for purposes of the sentencing guideline. Id. at 3-6.

         B. Time Served in State Custody

         1. The Defendant's Memorandum

         Mr. Mulkern observes that he “went into custody on August 26, 2014 for state offenses related to the charges in this case, and was held during the entire time of the pendency of his state and federal proceedings.” Def.'s Mem. at 7. Mr. Mulkern claims that the Bureau of Prisons (BOP) has informed him that the start time for his federal sentence will begin at the date of his transfer to federal custody following his sentencing on January 28, 2016. Id. He asks the Court to account for this time in state custody for a burglary charge in which it was alleged that he stole, among other things, the ammunition that resulted in this conviction. Id. (citing U.S.S.G. § 5G1.3(b)(1)).

         2. The Government's Reply

         The Government opposes Mr. Mulkern's request, arguing that U.S.S.G. § 5G1.3(b) is inapplicable because Mr. Mulkern was not convicted of the state charges, nor were his guideline calculations enhanced by any conduct that formed the basis of his state custody. Gov't's Reply at 6-7 (citing United States v. Gondek, 65 F.3d 1, 2 (1st Cir. 1995); United States v. Lino, 493 F.3d 41, 45 (1st Cir. 2007); United States v. Figueroa-Figueroa, 791 F.3d 187, 192 (1st Cir. 2015)).

         III. DISCUSSION

         A. The Robbery Conviction and the Base Offense Level

         The guideline base offense level for felon-in-possession cases depends in part on whether a defendant has a prior conviction of a “crime of violence” or a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). A crime of violence is defined as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

         U.S.S.G. § 4B1.2(a) (emphasis supplied). Subsection (1) is called the “force clause, ” and subsection (2) is called the “enumerated offenses clause.” A court must determine whether the specific state's legal definition of the offense of conviction fulfills either clause of the Guidelines' definition of a crime of violence.

         In making this determination, courts have developed two approaches: the categorical approach and the modified categorical approach. See United States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 2017).[2] When the state statute is indivisible, meaning there is only one way to commit the crime, the court uses the categorical approach, which assumes the state statute of conviction “rested upon [nothing] more than th[e] least of the acts criminalized.” Id. (citing Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013)) (internal quotations omitted). The court then compares the state statute of conviction's elements to the pertinent definitions under the federal law. Id. If there is a match, the state conviction is a crime of violence. Id.

         However, when the state statute is divisible, meaning that it lays out elements in the alternative and thereby defines multiple crimes, courts employ the modified categorical approach. Id. (citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)). Under that method, “the court looks beyond the statute of conviction to a narrow ‘class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)'-known as Shepard documents-‘to determine what crime, with what elements, the defendant was convicted of.'” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). The court can then compare that version of the crime, as the categorical approach commands, with the pertinent definition under federal law, to see if the state conviction is eligible. Id.

         The First Circuit has already determined that Maine's robbery statute does not qualify as a crime of violence based on the force clause, because it allows for convictions based on a level of force below that required to be considered “physical force” under the guideline. Mulkern, 854 F.3d at 91-94.[3] At least since August 1, 2016, however, robbery is an enumerated offense under the second clause of the guideline.[4] See Supplement to the 2015 Guidelines Manual, United States Sentencing Commission (Aug. 1, 2016).

         Where a specific offense is enumerated, the trial court must determine if the state statute of conviction substantially corresponds to the generic definition of that enumerated offense. Taylor v. United States, 495 U.S. 575, 602 (1990); see also Deschamps v. United States, 133 S.Ct. 2276, 2281 (2013) (“[Courts] compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime-i.e., the offense as commonly understood”). The prior conviction qualifies as a crime of violence only if the statute's elements are the same as, or narrower than, those of the generic offense. Deschamps, 133 S.Ct. at 2281; see also Mathis, 136 S.Ct. at 2248.

         The generic form of robbery is, essentially, “the taking of property from another person or from the immediate presence of another person by force or by intimidation.” See United States v. Lockley, 632 F.3d 1238, 1244 (11th Cir. 2011) (quoting United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010)) (emphasis in original); see also 67 Am. Jur. 2d Robbery § 12 (“[Robbery] is the taking, with intent to steal, personal property of another, from his or her person or in his or her presence, against his or her will, by violence, intimidation, or by threatening the imminent use of force”); Model Penal Code § 222.1(1) (“A person is guilty of robbery if, in the course of committing a theft, he: (a) inflicts serious bodily injury upon another; or (b) threatens another with or purposely puts him in fear of immediate serious bodily injury . . . .”); 18 U.S.C. § 1951(b)(1) (“The term ‘robbery' means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury . . . .”).

         Maine's robbery statute is divisible, since there are alternate ways to commit the same crime. The parties dispute whether the Shepherd documents here are sufficient to establish the subsection of Maine's robbery statute under which Mr. Mulkern was convicted. At the First Circuit, the parties made arguments about the true section under which Mr. Mulkern pleaded guilty, but the First Circuit did not decide the issue. Mulkern, 854 F.3d at 93 (“We need not resolve the parties' dispute over which subpart of the robbery statute Mulkern pled guilty to violating-section 651(1)(B)(2) or section 651(1)(C)”).

         1. The Possible Robbery Provisions

         Mr. Mulkern may have pleaded guilty under one of three subsections, which the Court analyzes separately.

         a. § 651(1)(C): Use of Physical Force

         In Mr. Mulkern's appeal to the First Circuit, the Government argued that he pleaded guilty of robbery under § 651(1)(C). Mulkern, 854 F.3d at 92. Under the version of this subsection in effect at the time, “[a] person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions . . . [h]e uses physical force on another with the intent” either “[t]o prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking” or “[t]o compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property.” 1975 Me. Laws ...


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