UNPUBLISHED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 MICHAEL, Circuit Judges, and HAMILTON,
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). The district court concluded that
Mullen qualified for sentencing as a career offender, and
sentenced him to 151 months of imprisonment. Mullen 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. In his objections to the PSR, Mullen
asserted that insufficient documentation existed to establish
that any of his prior convictions qualified as a 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 establishing Mullen’s prior convictions was
sufficient. The court declined to make a finding regarding the
June 1991 conviction, but found that the other three convictions
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constituted crimes of violence and were properly counted as
predicate convictions for career offender sentencing.
On appeal, Mullen argues that the Government’s
evidence of his prior convictions was not 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 court reviews sentences imposed by district
courts for reasonableness, applying an abuse of discretion
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
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(4th Cir. 2006). In considering the district court’s
application of the Guidelines, this court reviews factual
findings for clear error and legal conclusions de novo. United
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 to another.” USSG § 4B1.2(1). At
sentencing, counsel conceded that, if otherwise properly
established to be counted as career offender predicates,
Mullen’s convictions for robbery were convictions for crimes of
violence. See United States v. Wilson, 951 F.2d 586, 587-88
(4th Cir. 1991) (concluding that robbery as defined under
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Maryland law was a crime of violence for career offender
purposes).
In assessing whether convictions constitute crimes of
violence, the sentencing court should employ a “categorical
approach.” 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.” Shepard, 544 U.S. at 26; see United States v.
Washington, 404 F.3d 834, 842 (4th Cir. 2005) (sentencing
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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. We
conclude that the district court correctly interpreted 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).
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Mullen was also convicted of resisting arrest and
other offenses after a trial on June 19, 2001. He was sentenced
the same date to sixty days in jail. 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,
Mullen recognizes that this court has held otherwise. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Mullen
merely requests that his challenge be noted for purposes of
further appeal.
Accordingly, we affirm Mullen’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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