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United States v. Robinson , 240 F. App'x 555 ( 2007 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARL ANTONIO ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:06-cr-00012-nkm-2)
Submitted:     May 25, 2007                    Decided:   July 9, 2007
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michelle C.F. Derrico, COPENHAVER, ELLETT & DERRICO, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Edward A. Lustig, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following    a   bench   trial,   Carl   Antonio   Robinson     was
convicted   of   one    count   of   distribution    of   cocaine   base,   in
violation of
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C) (2000); one count
of distribution or aiding and abetting in distribution of cocaine
base, in violation of
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C); and one
count of possession of a firearm by a convicted felon, in violation
of
    18 U.S.C. § 922
    (g)(2000).           Robinson was also convicted of one
count of conspiracy to distribute five or less grams of cocaine
base, in violation of
    21 U.S.C. § 846
     (2000).             The district court
sentenced Robinson to seventy months’ imprisonment.            Robinson now
appeals   the    district    court’s    judgment,    challenging    only    his
sentence.    For the reasons that follow, we affirm.
Robinson first asserts that his Sixth Amendment rights
were violated because the district court, instead of the jury,
determined the drug weight used in calculating Robinson’s advisory
guideline range.       However, because the district court sentenced
Robinson under an advisory guideline scheme, no Sixth Amendment
error occurred.     See United States v. Hughes,
    401 F.3d 540
    , 546
(4th Cir. 2005) (in post-Booker* sentencing, district court should
make all factual findings appropriate to determination of advisory
guideline range).
*
United States v. Booker,
    543 U.S. 220
     (2005).
- 2 -
Robinson also argues that the district court’s finding of
the drug weight used in calculating his advisory guideline range
was not supported by the preponderance of the evidence.            We review
findings of fact related to a district court’s application of the
sentencing guidelines for clear error. United States v. Green,
    436 F.3d 449
    , 456 (4th Cir.), cert. denied,
    126 S. Ct. 2309
     (2006).
This deferential standard of review requires reversal only if this
court is “left with the definite and firm conviction that a mistake
has been committed.” United States v. Stevenson,
    396 F.3d 538
    , 542
(4th Cir. 2005) (quoting Anderson v. Bessemer City,
    470 U.S. 564
    ,
573 (1985)). Because trial testimony supports the district court’s
calculations of drug weight, the district court did not clearly err
in making these factual findings.        See United States v. Lamarr,
    75 F.3d 964
    , 972 (4th Cir. 1996) (noting that approximation of amount
of drugs for sentencing not clearly erroneous if supported by
competent record evidence).
Finally, Robinson alleges that the district court should
have granted him a downward departure for diminished capacity
pursuant to U.S. Sentencing Guidelines Manual § 5K2.13, p.s.
(2005).    However, a district court’s failure to grant a downward
departure is not reviewable unless a district court was under the
mistaken impression that it lacked the authority to depart. United
States v. Matthews,
    209 F.3d 338
    , 352 (4th Cir. 2000); see also
United    States   v.   Cooper,
    437 F.3d 324
    ,   333   (3d   Cir.   2006)
- 3 -
(collecting cases declining to review a district court’s decision
not to depart, even after Booker).      Here, the district court
clearly understood its authority to depart.      Accordingly, this
claim is not cognizable on appeal.
We therefore affirm the district court’s judgment.    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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