United States v. Charles Mulverhill
2016 U.S. App. LEXIS 15001
| 8th Cir. | 2016Background
- Charles Mulverhill pleaded guilty to one count of failure to register as a sex offender under 18 U.S.C. § 2250(a) based on his move to Missouri in 2014 and failure to register there; he admitted the factual basis at the plea hearing.
- His prior convictions (Dec. 1989) were two counts under Cal. Penal Code § 288(a) for lewd and lascivious acts with a child under 14; he had registered previously in other states but not in Missouri.
- The PSR recommended a base offense level under U.S.S.G. § 2A3.5, applied an 8-level enhancement for a sex offense against a minor, and a 3-level acceptance reduction, yielding a total offense level of 21; the PSR erroneously listed the total offense level later as 23 and the Guidelines range as 46–57 months.
- At sentencing the district court treated the total offense level as 23 (46–57 months) and imposed 57 months; Mulverhill objected only to the 8-level enhancement, not to the PSR arithmetic error.
- On appeal Mulverhill argued (1) the district court plainly erred by accepting his plea because his prior convictions should not classify him as a Tier III (or Tier II) SORNA offender under a categorical analysis, and (2) the court plainly erred by using an incorrect total offense level (23 instead of 21).
Issues
| Issue | Plaintiff's Argument (Mulverhill) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the district court plainly erred by accepting a guilty plea premised on an allegedly erroneous SORNA tier classification (Tier III vs. Tier I) | Mulverhill: His California §288(a) convictions do not qualify as offenses “comparable to or more severe than” the federal offenses listed for Tier II/III under a categorical approach, so he would be Tier I and no longer required to register during the indictment period | Government: Mulverhill admitted the factual basis for failure to register; even if tier classification were unclear, no plain error because controlling precedent is lacking and defendant admitted facts | No plain error: plea acceptance upheld. Mulverhill’s admissions supplied a sufficient factual basis, and given Circuit splits and lack of controlling precedent, failure to apply a categorical approach was not plain error |
| Whether the district court plainly erred in calculating total offense level (PSR error: 23 vs. correct 21) and whether that affected substantial rights | Mulverhill: The PSR arithmetic error led to a higher Guidelines range; this error likely affected sentencing outcome and requires resentencing | Government: Concedes the math error but argues no reasonable probability of a lesser sentence absent the error (points to court comments suggesting possible upward variance) | Plain error found: error in Guidelines range was plain and affected substantial rights under Molina-Martinez; sentence vacated and case remanded for resentencing under correct offense level (21) |
Key Cases Cited
- Molina-Martinez v. United States, 136 S. Ct. 1338 (Sup. Ct.) (erroneous Guidelines range can show reasonable probability of different outcome)
- United States v. Hill, 820 F.3d 1003 (8th Cir. 2016) (circumstance-specific approach applies to certain SORNA provisions)
- United States v. Morales, 801 F.3d 1 (1st Cir. 2015) (discussion of SORNA tier definitions)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (circumstance-specific inquiry principles referenced)
- United States v. Lachowski, 405 F.3d 696 (8th Cir. 2005) (plain-error discretion where precedent is lacking)
- United States v. Taylor, 644 F.3d 573 (7th Cir.) (discussion of incorporation of SORNA tiers into sentencing guidelines)