UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, Mulkerin would have been classified as a career
offender.
Mulkerin’s counsel contends on appeal that the
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. The Government agrees that Mulkerin’s
sentence is unreasonable 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). Gall v. United States, 552 U.S. 38, __, 128
S. Ct. 586, 596 (2007). In reviewing the district court’s
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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). Appellate review of a district court’s
imposition of a sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” is for abuse of
discretion. Gall, 128 S. Ct. at 591.
The district court departed upward, finding the
seriousness of the underlying offense, bank robbery, was not
adequately reflected in the applicable advisory Guidelines
range. As the court concluded that Mulkerin would have been a
career 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 is undisputed that Mulkerin has a prior felony
conviction for common law robbery that would qualify as a
predicate offense under the career offender provision. Both
parties, however, challenge the second potential predicate
offense considered by the district court, Mulkerin’s 1999
Pennsylvania conviction for escape, as the Presentence
Investigation Report is silent on the facts surrounding the
offense.
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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.” 18 Pa. Cons. Stat.
§ 5121(a) (2009). 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. Chambers v. United States, 129 S. Ct. 687, 692 (2009)
(internal quotation marks and citation omitted) (determining
comparable Illinois escape statute was not a violent felony
under the Armed Career Criminal Act).
Although 18 Pa. Cons. Stat. § 5121(d)(1)(ii) permits
grading of the offense based on the use of “force, threat,
deadly weapon or other dangerous instrumentality,” there is
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. As the district court committed significant
procedural error by selecting a sentence based on a clearly
erroneous fact, Mulkerin’s sentence is unreasonable. See Gall,
128 S. Ct. at 597.
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Accordingly, we vacate the sentence and remand for
resentencing in light of our holding. We, of course, indicate
no view as to the appropriate sentence to be imposed upon
Mulkerin, leaving that determination, in the first instance, to
the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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