United States v. Mulkern

• Decision Date: 14 April 2017
• Docket Number: No. 16-1146,16-1146
• Parties: UNITED STATES of America, Appellee, v. Brian T. MULKERN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

854 F.3d 87

UNITED STATES of America, Appellee,

v.Brian T. MULKERN, Defendant, Appellant.

No. 16-1146

United States Court of Appeals, First Circuit.

April 14, 2017

Jon A. Haddow , with whom Farrell, Rosenblatt & Russell , Bangor, ME, was on brief, for appellant.

Margaret D. McGaughey , Assistant United States Attorney, with whom Thomas E. Delahanty II , United States Attorney, was on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

Stage Setting

Brian Mulkern pled guilty to a federal charge of possessing ammunition as a felon. See 18 U.S.C. § 922(g)(1). Normally the max prison sentence for an ammunition-possessing felon is 10 years. See 18 U.S.C. § 924(a)(2). But under the Armed Career Criminal Act ("ACCA," for short), a felon with three or more prior convictions for "violent felon[ies]" or "serious drug offense[s]" carried out "on occasions different from one another" must get at least 15 years. See id. § 924(e)(1). In addition to two concededly ACCA-qualifying Maine burglary convictions, Mulkern has a 2001 Maine robbery conviction and a 2004 Maine drug-trafficking conviction on his record. So when it came time for sentencing, the government argued for an ACCA enhancement. Mulkern argued against it, unsurprisingly. But siding with the government, the judge sentenced him to the statutory minimum of 15 years in jail.

Mulkern now appeals. And having reviewed the matter afresh,¹ we now vacate his sentence and remand for resentencing. We will explain our thinking shortly—right after a quick tutorial on some ACCA-related rules.

ACCA

As just noted, ACCA requires mandatory sentences for recidivist criminals with three or more convictions for crimes—committed on different occasions—that qualify as predicate offenses. The government bears the burden of proving by a preponderance of the evidence that a defendant stands convicted of a particular crime. See United States v. Murdock , 699 F.3d 665, 672 (1st Cir. 2012).² And whether that crime is an ACCA-predicate offense is ultimately a legal question subject to de novo review. See, e.g. , United States v. Hudson , 823 F.3d 11, 14 (1st Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 620, 196 L.Ed.2d 530 (2017).

One type of ACCA-qualifying offense is a "violent felony," relevantly defined as "any crime 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."³ 18 U.S.C. § 924(e)(2)(B)(i). The phrase "physical force" means "force capable of causing physical pain or injury to another person." Johnson v. United States ("Johnson I "), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

The other type of ACCA-qualifying offense is a "serious drug offense," pertinently defined as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law."⁴ 18 U.S.C. § 924(e)(2)(A)(ii). The word "involving" helps ACCA "capture[ ] more offenses than just those that ‘are in fact’ the manufacture, distribution, or possession of, with intent to distribute, a controlled substance"—i.e. , thanks to "involving," the statute captures " ‘offenses that are related to or connected with such conduct’ " as well. See United States v. McKenney , 450 F.3d 39, 42, 43–44 (1st Cir. 2006) (quoting United States v. King , 325 F.3d 110, 113 (2d Cir. 2003) ); see also Whindleton , 797 F.3d at 109.

Our judicial superiors have devised two ways for deciding whether a defendant's prior conviction satisfies ACCA—the categorical approach and the modified-categorical approach. Bear with us, because explaining these approaches is no walk in the park.

Under the categorical approach, the court assumes that the state statute of conviction " ‘rested upon [nothing] more than the least of th[e] acts' criminalized." See Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Johnson I , 559 U.S. at 137, 130 S.Ct. 1265 ). The court then compares the state statute of conviction's elements to ACCA's definitions of "violent felony" or "serious drug offense." Cf. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). And if there is a match, the state conviction is an ACCA predicate. See id. (citing, among other things, Taylor v. United States , 495 U.S. 575, 600–01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ).

This comparison is difficult enough when the state statute lists "a single"—a.k.a. , " ‘indivisible’ "—body "of elements to define a single crime." See id. But some state statutes—a.k.a. , " ‘divisible’ " statutes—lay out "elements in the alternative, and thereby define multiple crimes," making the comparison of elements harder still. See id. at 2249. In that situation, courts employ the modified-categorical approach. See id. Under that method, the court looks beyond the statute of conviction to a narrow "class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)"—known as Shepard documents—"to determine what crime, with what elements, a defendant was convicted of." Id. (citing Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). "The court can then compare that crime, as the categorical approach commands," with the pertinent ACCA definitions to see if the state conviction is ACCA eligible. See id. ⁵

With these principles in place, we turn to whether Mulkern's Maine robbery and drug-trafficking convictions trigger the ACCA bump up. FYI: As the combatants correctly agree, Mulkern's convictions rest on divisible statutes. So we—as do the parties—apply the modified-categorical approach to this case.

Mulkern's 2001 Robbery Conviction

The Maine Statute

At the time Mulkern pled guilty to robbery in 2001, the Maine legislature defined the crime as follows:

1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions:

A. He recklessly inflicts bodily injury on another;

B. He threatens to use force against any person present with the intent

(1) to prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or

(2) to compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property;

C. He uses physical force on another with the intent enumerated in paragraph B, subparagraphs (1) or (2);

D. He intentionally inflicts or attempts to inflict bodily injury on another; or

E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D.

Me. Stat. tit. 17–A, § 651(1). According to the statutes in effect in 2001, violations of subparts A and B constituted Class B crimes (punishable by up to 10 years in prison), while violations of subparts C, D, and E constituted Class A crimes (punishable by up to 40 years in prison). See id. §§ 651(2), 1252(A) & (B).

The Parties' Arguments

The parties begin on common ground, agreeing that the relevant count in the 2001 Maine court indictment alleged the following:

[O]n or about July 04, 2001, in Pownal, Cumberland County, Maine, BRIAN MULKERN did attempt to commit theft by attempting to exercise unauthorized control over the property of the Short Stop store and/or [named victim], namely money, and at the time of his actions he threatened to use force against [named victim] with intent to compel her to give up the money, and he was armed with a dangerous weapon during the course of the robbery.

The indictment's cover sheet listed section "651(1)(E)" as the charged offense, recording it as a Class A crime. Someone crossed out the "A" in "Class A crime" and replaced it with a "B," though this alteration is not signed or dated. Someone also crossed out "and he was armed with a dangerous weapon during the course of the robbery" and section "651(1)(E)" and signed and dated the crossed-out area (the signature is illegible, and the parties do not tell who did this). Without mentioning a subpart, the judgment form has a handwritten note that listed section "651" as the offense of conviction, recording it as a Class B crime—though the state docket sheet lists section 651(1)(A) as the offense of conviction.

Now to the key points of contention between the parties:

Insisting that he ultimately pled guilty to section 651(1)(B)(2), Mulkern principally relies on Raymond v. State , a Maine case holding that "any physical force"—e.g. , pulling a purse from a person's hand—is "sufficient force to convict of robbery." See 467 A.2d 161, 164–65 (Me. 1983) (discussing, among other things, Commonwealth v. Jones , 362 Mass. 83, 283 N.E.2d 840, 845 (1972) ). In other words, a "de minimis amount of force," Mulkern writes, suffices "to raise a crime of theft to one of robbery." Ergo, his theory concludes, robbery under Maine law is not a "violent felony" after Johnson I because section 651(1)(B)(2) does not require the use of force "capable of causing physical pain or injury to another."See 559 U.S. at 140, 130 S.Ct. 1265. Raymond dealt with robbery under section 651(1)(C), not section 651(1)(B). See 467 A.2d at 162–63. But Mulkern's argument appears to be that robbery under section 651(1)(B)—which requires a threat to use "force"—must mean a threat to use the same amount of force required for section 651(1)(C).

Hold on, says the government: Mulkern actually pled guilty to section 651(1)(C)—indeed, the government at oral argument adamantly opposed the notion that he had pled guilty to anything else. And as the government sees it, because section 651(1)(C) requires the "use[ ]" of "physical force" (a quote lifted from the statute), a violation of that provision "amounts to an ACCA felony" (a quote lifted from its brief)...