US v. John Mullen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00043-RLV-DCK-1 Copies to all parties and the district court/agency. [999640522].. [14-4732]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4732

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN ROBERT MULLEN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:12-cr-00043-RLV-DCK-1)

Submitted:

July 31, 2015

Decided:

August 14, 2015

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ross Richardson, Executive Director, Anne L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Robert Mullen appeals from the sentence imposed after
he pleaded guilty to bank robbery, in violation of 18 U.S.C.
§ 2113(a)

(2012).

Mullen

contends

that

the

district

court

plainly erred in ordering him to pay restitution to a police
officer

and

the

Hickory

pursuing

Police
and

Department

incurred

while

apprehending

robbery.

him

based
after

on

losses

the

bank

Finding no plain error, we affirm.

Mullen argues for the first time on appeal that the losses
caused by his flight and arrest were not specific conduct that
was the basis for his conviction of bank robbery.

The Mandatory

Victims Restitution Act of 1996 (“MVRA”) requires a court, when
sentencing a defendant for a crime where an identifiable victim
has suffered a pecuniary loss, to order “that the defendant make
restitution

to

the

victim

of

the

offense.”

§ 3663A(a)(1), (c)(1)(A)(ii), (B) (2012).

18

U.S.C.

For purposes of the

MVRA, a victim is:
a person directly and proximately harmed as a result
of the commission of an offense for which restitution
may be ordered including, in the case of an offense
that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly
harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.
Id. § 3663A(a)(2) (2012).

Thus, “to be considered a victim[,]

. . . the act that harms the individual must be either conduct
underlying an element of the offense of conviction, or an act
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furtherance

of

a

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scheme,

conspiracy,

or

pattern

of

criminal activity that is specifically included as an element of
the offense of conviction.”

United States v. Davis, 714 F.3d

809, 813 (4th Cir. 2013) (internal quotation marks omitted); see
18

U.S.C.

§

3663(a)(2)

(2012)

(setting

forth

definition

in

Victim and Witness Protection Act (“VWPA”), a precursor of the
MVRA); Davis, 714 F.3d at 813 n.1 (noting similarity of MVRA’s
and VWPA’s definitions).

“A restitution order that exceeds the

authority of the statutory source is no less illegal than a
sentence of imprisonment that exceeds the statutory maximum.”
Davis, 714 F.3d at 812 (internal quotation marks omitted).
Because Mullen failed to object to the restitution order,
this court reviews for plain error only.
establish

plain

error,

Mullen

must

See id. at 815-16.
demonstrate

“that

To
the

district court erred, that the error was plain, and that it
affected his substantial rights.”
627

F.3d

941,

954

(4th

Cir.

United States v. Robinson,

2010)

(internal

alterations

and

quotation marks omitted).

This court has discretion to correct

such

“seriously

error

only

if

it

affect[s]

the

fairness,

integrity or public reputation of judicial proceedings.”

United

States v. Olano, 507 U.S. 725, 736 (1993) (internal quotation
marks and alteration omitted).
The

Government

argues

that

the

officer

and

police

department were “directly and proximately harmed as a result of”
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the bank robbery offense, contending that Mullen’s conduct in
robbing the bank led directly to his attempt to evade the police
officers and the damages were incurred during the flight.

See

18 U.S.C. § 3663A(a)(2) (MVRA definition of victim).
We conclude that the district court did not plainly err in
ordering Mullen to pay restitution to an arresting officer for
damage to his uniform and to the police department for damage to
another

officer’s

service

weapon.

See

United

States

v.

Washington, 434 F.3d 1265, 1268 (11th Cir. 2006) (no error in a
restitution award to a police department for damage to property
caused during the defendant’s flight following his commission of
a bank robbery); United States v. Reichow, 416 F.3d 802, 805
(2005) (no error in order to pay restitution after defendant
convicted

of

destruction

armed

of

robbery

uniforms,

and

for

damage

medical

to

bills

police

incurred

cars,
by

an

injured sheriff’s deputy, where damage “occurred ‘during’ the
robbery”); United States v. Donaby, 349 F.3d 1046, 1051-55 (7th
Cir. 2003) (bank robbery directly and proximately caused the
damage to a police vehicle that occurred during the flight from
the crime scene).
Finding

no

plain

error,

we

affirm

the

restitution imposed by the district court.
oral

argument

because

the

facts

4

and

legal

sentence

and

We dispense with
contentions

are

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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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