United States District Court, D. Maine
ORDER ON RESENTENCING
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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
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.
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).
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).
The Factual and Legal Background
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
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. 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.
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
THE PARTIES' POSITIONS
The Robbery Conviction and “Crime of
The Government's Memorandum
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.
The Defendant's Memorandum
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.
The Government's Reply
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.
Time Served in State Custody
The Defendant's Memorandum
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.
The Government's Reply
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)).
The Robbery Conviction and the Base Offense Level
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).
§ 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.
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). 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.
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.
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. At least since August 1,
2016, however, robbery is an enumerated offense under the
second clause of the guideline. See Supplement to the 2015
Guidelines Manual, United States Sentencing Commission
(Aug. 1, 2016).
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.
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 . . . .”).
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)”).
The Possible Robbery Provisions
Mulkern may have pleaded guilty under one of three
subsections, which the Court analyzes separately.
§ 651(1)(C): Use of Physical Force
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 ...