An appeals court vacated a Waterville man’s 15-year prison term Friday, saying he was classified improperly as an armed career offender and subject to the 15-year minimum.
Brian T. Mulkern, 37, formerly of Winthrop, now will be re-sentenced on the charge of being a felon in possession of ammunition.
He is at the Federal Correctional Institution in Danbury, Connecticut, and his release date is listed as May 7, 2029, on the federal Bureau of Prisons website.
Mulkern’s attorney, Jon Haddow, wrote in his brief that without the enhancement, Mulkern’s guideline sentencing range would be 70 to 87 months rather than the 180 months or 15 years that was imposed.
On Tuesday, Haddow said he expected that Mulkern would be re-sentenced within that range.
Haddow said he mailed Mulkern a copy of the decision and was waiting for a phone call from him.
“I know he’ll be very happy,” he said.
Haddow said he anticipated that the new sentencing hearing would be set as soon as Mulkern could be returned to Maine and that Mulkern had the option of waiving his right to be present for he re-sentencing.
The U.S. Court of Appeals for the 1st Circuit published its decision Friday. In it, Judge O. Rogeriee Thompson writes, “Normally the max prison sentence for an ammunition-possessing felon is 10 years.” However, felons sentenced under the federal Armed Career Criminal Act, are subject to a 15-year minimum.
She noted the decision in this case offers “a quick tutorial on some ACCA-related rules” over what qualifies as “predicate offenses.”
Mulkern was sentenced Jan. 28, 2016, in U.S. District Court in Bangor on the offense, which occurred Aug. 26, 2014, in Winthrop.
According to the prosecution, Mulkern was arrested that day in possession of 10 rounds of 9-millimeter ammunition, which he stole during a daytime burglary of a residence where an 11-year-old girl was home alone.
At the time, Winthrop police said Mulkern surprised the girl, who called police and then fled to a neighbor’s home. A Winthrop officer then tackled Mulkern as he tried to get on his motorcycle to flee.
“The defendant was captured by local police at the scene of the burglary with the ammunition in his backpack,” the U.S. Attorney’ Office office said in a news release previously. “He told police that he tried to steal a handgun located in a safe in the home during the burglary. He was unable to open the safe.”
The sentencing judge, John A. Woodcock Jr., found that Mulkern’s criminal history put him into the armed career criminal category.
At that same hearing, Mulkern told the judge that drug addiction had led to the crimes. Mulkern appealed that sentence, and oral arguments were held in December 2016 in Boston.
Mulkern’s attorney, Jon Haddow, wrote in his brief that without the enhancement, Mulkern’s guideline sentencing range would be 70 to 87 months rather than the 180 months or 15 years that was imposed.
The appeals court says neither a 2001 robbery conviction in Cumberland County involving an attempted theft of money involving a firearm nor a 2004 conviction for trafficking in 2 grams or more of heroin rose to the level of “violent felony” and “serious drug offense,” respectively.
The same court ruled that Mulkern’s two convictions for burglaries of a dwelling — one in 2001 and one in 2012 — did qualify under the act.
Betty Adams — 621-5631
Twitter: @betadams
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