                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-5153


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOSEPH T. MULKERIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00264-F-1)


Submitted:    August 21, 2009                 Decided:   October 7, 2009


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Robert
J. Higdon, Jr., Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Joseph T. Mulkerin pled guilty pursuant to a written

plea      agreement   to    bank     larceny,         in    violation         of    18    U.S.C.

§ 2113(b) (2006).           The district court departed upward from the

six to twelve month Guidelines range in sentencing Mulkerin to

the statutory maximum of 120 months’ imprisonment, see 18 U.S.C.

§ 2113(b)      (prescribing        ten-year           statutory         maximum     for     bank

larceny of currency or property exceeding a value of $1000),

finding that if the associated bank robbery count had not been

dismissed,     Mulkerin      would     have          been   classified         as    a    career

offender.

              Mulkerin’s      counsel           contends      on        appeal      that     the

sentence is unreasonable because the district court failed to

consider      mitigating       factors           in     fashioning            its   sentence.

Additionally, counsel questions whether Mulkerin would have been

classified as a career offender if the bank robbery indictment

had not been dismissed.              The Government agrees that Mulkerin’s

sentence      is   unreasonable       as        it    was    based       on    an   erroneous

application of the career offender guideline provision.

              When determining a sentence, the district court must

calculate the appropriate advisory Guidelines range and consider

it   in    conjunction      with     the    factors         set    forth       in   18    U.S.C.

§ 3553(a) (2006).           Gall v. United States, 552 U.S. 38, __, 128

S.   Ct.    586,   596     (2007).         In   reviewing         the    district        court’s

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application of the Sentencing Guidelines, we review findings of

fact for clear error and questions of law de novo.                                           United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,

128 S. Ct. 2525 (2008).                  Appellate review of a district court’s

imposition    of     a    sentence,            “whether      inside,     just      outside,        or

significantly outside the Guidelines range,” is for abuse of

discretion.       Gall, 128 S. Ct. at 591.

             The     district            court     departed         upward,       finding       the

seriousness of the underlying offense, bank robbery, was not

adequately        reflected         in     the     applicable        advisory          Guidelines

range.     As the court concluded that Mulkerin would have been a

career     offender       if    the        bank       robbery      charge       had    not     been

dismissed, it based the departure range on the career offender

guideline provision.             Mulkerin was sentenced in accordance with

this range, limited only by the statutory maximum.

             It    is    undisputed            that     Mulkerin     has    a     prior      felony

conviction    for        common       law      robbery      that    would        qualify      as   a

predicate offense under the career offender provision.                                         Both

parties,     however,          challenge          the      second    potential          predicate

offense     considered         by        the     district       court,      Mulkerin’s         1999

Pennsylvania        conviction              for       escape,       as     the        Presentence

Investigation       Report       is      silent       on    the    facts    surrounding         the

offense.



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            The Pennsylvania escape statute under which Mulkerin

was convicted states that “[a] person commits an offense if he

unlawfully removes himself from official detention or fails to

return to official detention following temporary leave granted

for a specific purpose or limited period.”                          18 Pa. Cons. Stat.

§ 5121(a) (2009).           As defined in § 5121(a), “the crime amounts

to a form of inaction, a far cry from the purposeful, violent,

and   aggressive        conduct”        that   is     the     subject     of     recidivist

statutes.      Chambers v. United States, 129 S. Ct. 687, 692 (2009)

(internal      quotation        marks    and       citation    omitted)     (determining

comparable     Illinois         escape    statute      was    not    a    violent     felony

under the Armed Career Criminal Act).

            Although 18 Pa. Cons. Stat. § 5121(d)(1)(ii) permits

grading   of    the     offense      based     on    the    use   of     “force,     threat,

deadly    weapon      or    other    dangerous        instrumentality,”           there   is

nothing in the presentence report to suggest that any of these

circumstances were present in the conduct that led to Mulkerin’s

1999 conviction.           Thus, the materials in the joint appendix do

not support a finding that Mulkerin would have been classified

as a career offender if the bank robbery charge had not been

dismissed.         As      the      district        court     committed         significant

procedural     error       by   selecting      a     sentence     based    on    a   clearly

erroneous fact, Mulkerin’s sentence is unreasonable.                             See Gall,

128 S. Ct. at 597.

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              Accordingly,     we   vacate   the   sentence    and   remand     for

resentencing in light of our holding.               We, of course, indicate

no   view   as   to    the    appropriate    sentence   to    be   imposed     upon

Mulkerin, leaving that determination, in the first instance, to

the district court.           We dispense with oral argument because the

facts   and    legal    contentions    are   adequately      presented    in    the

materials     before    the    court   and   argument   would      not   aid   the

decisional process.

                                                        VACATED AND REMANDED




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