United States v. Mulverhill, No. 15-3241 (8th Cir. 2016)
Annotate this CaseDefendant plead guilty to one count of failure to register as a sex offender and was sentenced to 57 months in prison. Even assuming that the categorical approach does apply, the court concluded that the district court committed no plain error by not applying that approach to defendant's prior convictions to determine his appropriate tier classification. In this case, during his change-of-plea hearing, defendant agreed with the government's recitation of the facts that although he was required to register as a sex offender, he had failed to do so as of January 29, 2015. Defendant's admission constitutes a sufficient factual basis for the guilty plea. Even if the court were to consider defendant's duty to register as a sex offender between June 19, 2014, and January 30, 2015, as a purely legal question, the district court committed no plain error in not applying a categorical approach to defendant's California convictions where the court lacked controlling precedent on the question of whether a circumstance-specific approach or categorical approach is applicable to the three tier classifications set forth in 42 U.S.C. 16911(2), (3), and (4); the court's United States v. Hill decision indicates that such an approach does not apply in other subsections of the same statute; and (3) the court's sister circuits have had difficulty in determining whether the circumstance-specific or categorical approach applies to section 16911(2), (3), and (4). Finally, the court found that the district court plainly erred in calculating defendant's total offense level as 23 and thus defendant is entitled to resentencing.
Court Description: Smith, Author, with Gruender and Benton, Circuit Judges] Criminal case - Criminal law and sentencing. While the lack of controlling Eighth Circuit precedent and the split of authority among the circuits would support a holding that the district court committed no plain error in not applying a categorical approach to determine whether defendant's California sex offense convictions qualified for Tier III treatment, at the change-of-plea hearing, defendant admitted he was required to register as a sex offender and had failed to do so, and this admission constituted a sufficient factual basis for his plea; the presentence report mistakenly stated defendant's offense level at 23 rather than 21, and he was entitled to resentencing. [ August 15, 2016
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