A Waterville man serving 15 years in federal prison for being a felon in possession of ammunition — which he stole from a Winthrop home — has appealed his sentence, saying he was categorized improperly as an armed career offender.

An attorney for Brian T. Mulkern, 37, is scheduled to argue on his behalf Monday before a three-judge panel at the 1st U.S. Circuit Court of Appeals in Boston.

The government says Mulkern is just the type of person the U.S. Armed Career Criminal Act was meant to address. That act allows for longer sentences for felons who commit crimes with firearms if they have been convicted of “violent felony” crimes three or more times.

In asking the panel to uphold the sentence, Assistant U.S. Attorney Margaret D. McGaughey described the Aug. 26, 2014, burglary on Holmes Road in Winthrop, saying, “Mulkern kicked in the door to a house where an 11-year-old girl was home alone, stole jewelry and medication, found ammunition, tried to break into a safe to steal a gun, but was unable to do so. His criminal history made him the very type of person the ACCA was designed to punish: someone who continued to commit drug or violent crimes.”

Mulkern was arrested that day by a Winthrop police officer who found Mulkern leaving the home while carrying items he had stolen.

The federal charge against Mulkern indicated he had 10 rounds of 9 mm ammunition on him when he was arrested in Winthrop and listed his felony convictions from 2001-2014 for unlawful possession of scheduled drugs, burglary, theft, burglary of a motor vehicle, robbery, and trafficking in scheduled drugs.

Mulkern’s attorney, Jon Haddow, is asking the appeals court to find that Mulkern has only two prior “violent felony” offenses resulting from two burglaries of dwellings that took place in 2001 and 2012, and “to reject the government’s argument, and hold that the defendant’s (drug) trafficking conviction under Maine law is a non-qualifying predicate offense under the (Armed Career Criminal Act).”

At a sentencing hearing in January in federal court in Bangor, Judge John A. Woodcock Jr. concluded that Mulkern’s prior criminal convictions subjected him to the enhancement.

Haddow seeks a reversal of the sentencing court’s decision and a resentencing “without applying the Armed Career Criminal Act.” Haddow wrote that without that enhancement, Mulkern’s guideline sentencing range would be 70 to 87 months.

In February 2013, Mulkern was convicted of attempted trafficking in heroin that occurred Sept. 22, 2012, in Winthrop and received a 28-month prison sentence.

Mulkern remains in custody, and his release date is May 7, 2029, according to the U.S. Bureau of Prisons website.

Betty Adams — 621-5631

[email protected]

Twitter: @betadams

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