US v. Louis Mullen
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LOUIS MULLEN, Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00205-CCB-1)
December 9, 2008
February 17, 2009
Before NIEMEYER and Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff Attorney, Franklin W. Draper, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Paul E. Budlow, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Louis Mullen pleaded guilty, pursuant to a plea
agreement, to one count of bank robbery, in violation of 18 U.S.C. § 2113(a), (f) (2006). Mullen qualified him to for 151 The district court concluded that as a career offender, Mullen and
sentencing months of
appealed, and we affirm. In the presentence report (PSR), the probation officer concluded that Mullen qualified for sentencing as a career
offender pursuant to U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 (2006), based on convictions for robbery in June 1991 and May 1992, robbery with a deadly weapon in July 1992, and resisting arrest in 2001. asserted that any that of insufficient his prior In his objections to the PSR, Mullen documentation existed as to a establish crime of
violence for career offender purposes.
He also argued that the
sentence on his May 1992 conviction was subsequently modified and fell below the length required to be counted under USSG § 4A1.2(e). Finally, Mullen asserted that his conviction for
resisting arrest was not a conviction for a crime of violence. At sentencing, the district court concluded that the documentation sufficient. establishing Mullen's prior convictions was
The court declined to make a finding regarding the
June 1991 conviction, but found that the other three convictions 2
predicate convictions for career offender sentencing. On evidence of appeal, his Mullen argues that was the not Government's sufficient to
establish the existence of the convictions.
He also argues that
the evidence was insufficient to establish that his convictions for robbery in May and July 1992 fell within the time period under USSG § 4A1.2(e) to qualify as career offender predicates. Finally, Mullen argues that, after the Supreme Court's decision in United States v. Begay, 121 S. Ct. 1581 (2008), his
conviction for resisting arrest did not qualify as a crime of violence for career offender purposes. The Government responds,
arguing that the district court properly sentenced Mullen as a career offender. This courts for court reviews sentences an imposed abuse by of district discretion
Gall v. United States, 128 S. Ct. 586, 597-98 (2007);
United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). When sentencing a defendant, a district court must: (1) properly calculate the guideline range; (2) determine whether a sentence within that range serves the factors set out in 18 U.S.C.
§ 3553(a) (2006); (3) implement mandatory statutory limitations; and (4) explain its reasons for selecting a sentence. Pauley,
511 F.3d at 473; United States v. Green, 436 F.3d 449, 455-56 3
2006). of the
court's factual United
findings for clear error and legal conclusions de novo. States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). Section 4B1.1 of the Sentencing Guidelines
that career offenders be sentenced at enhanced offense levels and at criminal history category VI. A defendant is a career
offender if he was at least eighteen years old when the instant offense was committed, the instant offense is a felony and is either a crime of violence or a drug offense, and he has at least two prior felony convictions for crimes of violence or drug offenses. See USSG § 4B1.1. Mullen contests only whether
he has at least two prior felony convictions for a crime of violence. A crime of violence is defined to include any federal
or state offense punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another, or . . . involves conduct that presents a serious potential risk of physical injury counsel to be to another." that, as USSG if § 4B1.2(1). At
Mullen's convictions for robbery were convictions for crimes of violence. (4th Cir. See United States v. Wilson, 951 F.2d 586, 587-88 1991) (concluding that 4 robbery as defined under
In assessing whether convictions constitute crimes of violence, approach." the sentencing court should employ a "categorical
Taylor v. United States, 495 U.S. 575, 600 (1990);
United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998). Under this approach, the court may look only to the fact of conviction and the statutory definition of the prior offense. Taylor, 495 U.S. at 602. The Supreme Court has reiterated that
a federal sentencing court cannot consider items from the record of a prior conviction that were not conclusively validated in the earlier proceeding. Shepard v. United States, 544 U.S. 13,
21, 23 (2005); see United States v. Collins, 412 F.3d 515, 521 (4th Cir. 2005). In cases where the prior conviction was the result of a guilty plea, the Shepard court held that a sentencing court's inquiry about whether a prior conviction was a crime of violence "is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Washington, 404 Shepard, 544 U.S. at 26; see United States v. F.3d 834, 842 (4th Cir. 2005) (sentencing
court's reliance on documents other than those authorized in Shepard resulted in unconstitutional fact-finding). Mullen relies on Taylor and Shepard to support his contention that the documents were not sufficient to prove his prior conviction for a crime of violence. Our review of the
record leads us to conclude that the district court correctly concluded that the documents in question regarding Mullen's
prior convictions were sufficiently reliable to establish the fact of the conviction, and whether the resultant term of
imprisonment satisfied the requirements of USSG § 4A1.2(e). Mullen argues that his conviction for robbery in 1992 resulted in a suspended sentence that is not countable under USSG § 4A1.2(e) because he was sentenced more than five years before he committed the instant offense on April 13, 2007. conclude that the district court correctly interpreted We the
supporting documentation to conclude that this conviction was properly countable under § 4A1.2(e). Mullen was also convicted
in July 1992, pursuant to a guilty plea, of robbery with a deadly weapon. He received a sentence of six years of
imprisonment on July 20, 1992.
As this sentence exceeded one
year and one month, and was imposed within fifteen years of the commission of the instant offense, the district court correctly counted it as a career offender predicate pursuant to
§ 4A1.2(e). 6
other offenses after a trial on June 19, 2001. the same date to sixty days in jail.
He was sentenced
Under USSG § 4A1.2(e)(2),
because this sentence was imposed within ten years of Mullen's commission of the bank robbery, it was properly counted as a career offender predicate conviction. Mullen also argues that his conviction for resisting arrest does not constitute a crime of violence for career offender purposes. He acknowledges that
this court held to the contrary in United States v. Wardrick, 350 F.3d 446, 455-56 (4th Cir. 2003), but argues that this
holding is no longer good law in light of the Supreme Court's decision in Begay. Our review leads us to conclude that the
offense of driving while intoxicated, considered by the Court in Begay, is sufficiently different from the offense of resisting arrest that Begay does not overrule Wardrick. Mullen also raises the issue of whether the district court should have made all sentencing enhancement determinations based on facts proven beyond a reasonable doubt. However, United Mullen of
Mullen recognizes that this court has held otherwise. States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). merely requests that his challenge be noted for
further appeal. Accordingly, we affirm Mullen's sentence. We dispense
with oral argument because the facts and legal contentions are 7
argument would not aid the decisional process. AFFIRMED
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