United States v. Franklin Robinson , 489 F. App'x 676 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4994
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANKLIN MACKENSIE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00599-RBH-1)
Submitted: June 26, 2012 Decided: July 24, 2012
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. William N. Nettles, United States
Attorney, Carrie Fisher Sherard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin MacKensie Robinson was convicted of
conspiracy to possess with intent to distribute and to
distribute 500 grams or more of cocaine and fifty grams or more
of cocaine base, 21 U.S.C. § 846 (2006), and distribution of
cocaine base, 21 U.S.C. § 841(a)(1) (2006). He received
concurrent 360-month sentences. We affirm.
I
At trial, Daytron Allen testified that on February 28,
2011, he and Robinson were in adjoining cells at the federal
courthouse. Allen stated that Robinson threatened potential
witnesses and their families and asked Allen to convey the
threats.
While in jail awaiting trial, Robinson made numerous
telephone calls, which were recorded. Over Robinson’s
objection, the district court admitted the recording of the call
made on November 29, 2010. Robinson contends that the admission
of the recording violated Fed. R. Evid. 403 because the evidence
was cumulative, unnecessary, and unduly prejudicial. We review
a decision to admit evidence for abuse of discretion. United
States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
While relevant evidence generally is admissible, Fed.
R. Evid. 402, it “may be excluded if its probative value is
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substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
Nonetheless, “Rule 403 is a rule of inclusion, generally
favoring admissibility.” United States v. Udeozor, 515 F.3d
260, 264-65 (4th Cir. 2008) (internal quotation marks and
alteration omitted). Under Rule 403, “damage to a defendant’s
case is not a basis for excluding probative evidence” because
“[e]vidence that is highly probative invariably will be
prejudicial to the defense.” United States v. Grimmond, 137
F.3d 823, 833 (4th Cir. 1998). “Rule 403 requires exclusion of
evidence only in those instances where the trial judge believes
that there is a genuine risk that the emotions of the jury will
be excited to irrational behavior, and that this risk is
disproportionate to the probative value of the offered
evidence.” United States v. Mohr, 318 F.3d 613, 618 (4th Cir.
2003) (internal quotation marks omitted). When assessing a Rule
403 issue on appeal, “we look at the evidence in a light most
favorable to its proponent, maximizing its probative value and
minimizing its prejudicial effect.” United States v. Simpson,
910 F.2d 154, 157 (4th Cir. 1990) (internal quotation marks
omitted).
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We hold that the recording was properly admitted under
Rule 403. The prejudicial value of the recording was outweighed
by its probative value. As the district court found, the
recording was the only evidence that tended to corroborate
Allen’s testimony about Robinson’s threats. Further, the fact
that Robinson wanted Allen to communicate the threats on his
behalf to potential witnesses suggested that Robinson was
conscious of both his guilt and the strength of the
prosecution’s case.
II
Because of a prior felony drug conviction, Robinson
was subject to an enhanced sentence under 21 U.S.C. § 841(b)(1)
(2006). In its information of prior conviction, 21 U.S.C.
§ 851(a) (2006), the United States identified the prior offense
as an August 2, 2006 conviction for possession with intent to
distribute cocaine. Robinson was seventeen when he committed
the crime and nineteen when he was convicted and sentenced. On
appeal, Robinson claims that it was a violation of both
§ 841(b)(1) and the Eighth Amendment to base the enhancements on
criminal conduct that occurred when he was a juvenile.
We find Robinson’s position to be without merit. The
Sixth Circuit has rejected similar arguments, concluding that
“[n]othing in § 841(b)(1)(A) indicates that a defendant’s age at
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the time of his . . . prior conviction is relevant to the
application of § 841, but to the extent that it is, age would
appear to matter if it was related to the process in which a
defendant’s prior conviction was obtained.” United States v.
Graham, 622 F.3d 445, 457 (6th Cir. 2010). The defendant in
Graham was convicted and sentenced as an adult for the predicate
offense although he was arrested as a juvenile. Id. The court
ruled that the prior conviction was properly used to enhance the
statutory mandatory minimum for the federal offense. Id. at
459. Here, state court records reflect that Robinson was
convicted and sentenced as an adult for the 2006 offense. We
are persuaded by the rationale expressed in Graham and conclude
that the district court’s use of the 2006 conviction for
enhancement purposes did not violate § 841(b).
Nor does the use of the 2006 conviction violate the
Eighth Amendment under either Graham v. Florida, 130 S. Ct. 2011(2010), or Roper v. Simmons, 543 U.S. 551 (2005). Critically,
in each of those cases, the defendant was a juvenile at the time
he committed the relevant offenses. Robinson, however, was an
adult when he committed the instant federal drug offenses.
Accordingly, there was no Eighth Amendment violation. See
Graham, 622 F.3d at 462; United States v. Scott, 610 F.3d 1009,
1018 (8th Cir. 2010).
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III
Because Robinson’s offense level as computed under the
Drug Quantity Table exceeded that calculated based upon his
status as a career offender, the former was used to determine
his advisory Guidelines range. See U.S. Sentencing Guidelines
Manual § 4B1.1(b) (2010). Nonetheless, Robinson claims on
appeal that his presentence report erroneously identified him as
a career offender.
For a defendant to qualify as a career offender, he
must have “at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” USSG
§ 4B1.1(a). At sentencing, the court found that Robinson had
not only two, but three, qualifying convictions: possession with
intent to distribute cocaine, committed in 2004, when Robinson
was seventeen; assault and battery of a high and aggravated
nature (ABHAN), committed in 2005, when he was eighteen; and
ABHAN, committed in 2006, when he was nineteen.
The Guidelines define “prior felony conviction” as “a
prior adult federal or state conviction for an offense
punishable by death or imprisonment for a term exceeding one
year, regardless of . . . the actual sentence imposed.” USSG
§ 4B1.2, comment. (n.1). Further, “[a] conviction for an
offense committed before age eighteen is an adult conviction if
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it is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted. . . .” Id.
Additionally, before an conviction is counted for
career offender purposes, the court must consult the Guidelines
provision for computing criminal history. USSG § 4B1.2,
comment. (n.3); United States v. Mason, 284 F.3d 555, 558 (4th
Cir. 2002). Offenses committed prior to age eighteen are to be
included in the criminal history calculation if, among other
things, the defendant has an adult or juvenile sentence imposed
within five years of the defendant’s commencement of the instant
offense, USSG § 4A1.2(d)(2)(B).
Robinson had not only the required two, but three,
qualifying felony convictions. He committed the two ABHAN
offenses when he was eighteen and nineteen, respectively. He
was convicted and sentenced as an adult for those offenses.
Robinson committed the third felony, possession with intent to
distribute cocaine, in 2006, when he was seventeen. He was
prosecuted as an adult and was sentenced in August, 2006, for
this crime. The conspiracy that is the subject of the § 846
conviction commenced in 2005; the § 841(a) offense occurred in
2010. Accordingly, under USSG § 4A1.2(d)(2)(B), the 2006
conviction also was correctly treated as a predicate felony for
career offender purposes.
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IV
We therefore affirm. 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.
AFFIRMED
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