US v. Louis Mullen

Filing 920090217

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4001

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)

Submitted:

December 9, 2008

Decided:

February 17, 2009

Before NIEMEYER and Senior Circuit Judge.

MICHAEL,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

sentenced

imprisonment.

timely

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

convictions

qualified

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

constituted

crimes

of

violence

and

were

properly

counted

as

predicate convictions for career offender sentencing. On evidence of appeal, his Mullen argues that was the not Government's sufficient to

prior

convictions

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

reasonableness,

applying

standard.

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

(4th

Cir.

2006). of the

In

considering this

the court

district reviews

court's factual United

application

Guidelines,

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

directs

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

sentencing, established

conceded counted

otherwise offender

properly

career

predicates,

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

Maryland purposes).

law

was

a

crime

of

violence

for

career

offender

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

5

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

Mullen

was

also

convicted

of

resisting

arrest

and

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

purposes

further appeal. Accordingly, we affirm Mullen's sentence. We dispense

with oral argument because the facts and legal contentions are 7

adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process. AFFIRMED

8