United States v. Sean Robert Mulloy

The United States appeals from a sentence imposed upon Sean Robert Mulloy after a jury convicted him of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g). The district court refused to enhance Mulloy’s sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (e). It found after an evidentiary hear ing that two of the four prior violent felony convictions that the government had offered for enhancement were constitutionally invalid. Because we conclude that intervening Supreme Court authority suggests that the district court may have improperly allocated the burden of proof, we vacate the sentence and remand for resentencing.

The ACCA requires Mulloy to receive an enhanced sentence if he has been convicted of at least three prior violent felonies. See 18 U.S.C. § 924 (e)(1). Mulloy raises no challenge to two of his four prior violent felony convictions. We consider de novo whether either one of the two remaining convictions, a 1974 Washington strong-arm robbery offense, and a 1989 Washington second-degree burglary offense, may serve as the third predicate offense under the ACCA. United States v. Potter, 895 F.2d 1231, 1235 (9th Cir.), cert.…