US v. Joseph Mulkerin

Filing 920091007

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5153 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH T. MULKERIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:07-cr-00264-F-1) Submitted: August 21, 2009 Decided: October 7, 2009 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Robert J. Higdon, Jr., Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph T. Mulkerin pled guilty pursuant to a written plea agreement to bank larceny, in violation of 18 U.S.C. 2113(b) (2006). The district court departed upward from the six to twelve month Guidelines range in sentencing Mulkerin to the statutory maximum of 120 months' imprisonment, see 18 U.S.C. 2113(b) (prescribing ten-year statutory maximum for bank larceny of currency or property exceeding a value of $1000), finding that if the associated bank robbery count had not been dismissed, offender. Mulkerin's counsel contends on appeal that the Mulkerin would have been classified as a career sentence is unreasonable because the district court failed to consider mitigating factors in fashioning its sentence. Additionally, counsel questions whether Mulkerin would have been classified as a career offender if the bank robbery indictment had not been dismissed. sentence is unreasonable The Government agrees that Mulkerin's as it was based on an erroneous application of the career offender guideline provision. When determining a sentence, the district court must calculate the appropriate advisory Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. 3553(a) (2006). S. Ct. 586, 596 Gall v. United States, 552 U.S. 38, __, 128 (2007). In reviewing 2 the district court's application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). imposition of a Appellate review of a district court's "whether inside, just outside, or sentence, significantly outside the Guidelines range," is for abuse of discretion. Gall, 128 S. Ct. at 591. district court departed upward, finding the The seriousness of the underlying offense, bank robbery, was not adequately range. career reflected in the applicable advisory Guidelines As the court concluded that Mulkerin would have been a offender if the bank robbery charge had not been dismissed, it based the departure range on the career offender guideline provision. Mulkerin was sentenced in accordance with this range, limited only by the statutory maximum. It conviction is undisputed common law that Mulkerin that has would a prior qualify felony as a for robbery predicate offense under the career offender provision. parties, offense however, considered challenge by the the second potential Both predicate 1999 district escape, on court, as facts Mulkerin's the Pennsylvania Investigation offense. conviction Report is for silent Presentence the the surrounding 3 The Pennsylvania escape statute under which Mulkerin was convicted states that "[a] person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period." 5121(a) (2009). 18 Pa. Cons. Stat. As defined in 5121(a), "the crime amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive conduct" that is the subject of recidivist statutes. (internal comparable Chambers v. United States, 129 S. Ct. 687, 692 (2009) quotation Illinois marks escape and citation was omitted) not a (determining felony statute violent under the Armed Career Criminal Act). Although 18 Pa. Cons. Stat. 5121(d)(1)(ii) permits grading deadly of the offense or other based on the use of "force, threat, is weapon dangerous instrumentality," there nothing in the presentence report to suggest that any of these circumstances were present in the conduct that led to Mulkerin's 1999 conviction. Thus, the materials in the joint appendix do not support a finding that Mulkerin would have been classified as a career offender if the bank robbery charge had not been dismissed. procedural As error the by district a court committed based on significant a clearly selecting sentence erroneous fact, Mulkerin's sentence is unreasonable. 128 S. Ct. at 597. 4 See Gall, Accordingly, we vacate the sentence and remand for resentencing in light of our holding. no view as to the appropriate We, of course, indicate to be imposed upon sentence Mulkerin, leaving that determination, in the first instance, to the district court. facts and legal before We dispense with oral argument because the are and adequately argument presented not in aid the the contentions the court materials would decisional process. VACATED AND REMANDED 5

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