United States v. Marcus Robinson , 447 F. App'x 512 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS ROBINSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-01337-HFF-1)
Submitted: September 13, 2011 Decided: September 29, 2011
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
A. Peter Shahid, Jr., SHAHID LAW OFFICE, LLC, Charleston, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Andrew B. Moorman, Sr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Robinson appeals the district court’s judgment
imposing a 180 month sentence on him pursuant to his plea of
guilty to one count of possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). Because we conclude that the district
court committed neither procedural nor substantive plain error,
we affirm.
The presentence report (the “PSR”) prepared in his
case concluded that Robinson qualified as a career offender
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1(c). The PSR identified Robinson’s March 2004 second-
degree lynching conviction and his April 2006 conviction for
discharging a firearm into a dwelling as predicate offenses for
his career offender designation. Pursuant to USSG §§ 2K2.4(c)
and 4B1.1(c)(3), the PSR concluded that, after applying a 3-
point adjustment to Robinson’s total offense level for
acceptance of responsibility, the Guidelines advised the court
to impose between 262 and 327 months’ incarceration.
At sentencing, neither party raised any objections to
the PSR or its calculations, but Robinson’s counsel argued that
both the March 2004 lynching conviction and the April 2006
firearm conviction overstated Robinson’s criminal history. When
pressed by the court, counsel reiterated that Robinson was not
2
taking issue with the PSR’s conclusion that both offenses were
predicate offenses for purposes of the career offender
Guidelines. With respect to the lynching offense, the court
agreed with counsel: “I do believe that lynching is one of
those catch-alls that let the prosecution off the hook
sometimes, so I would find that the guidelines are overstated
for purposes of sentencing . . . but I still believe a
substantial sentence needs to be imposed.” After the court
imposed a sentence of 180 months rather than the 262 to 327
months suggested by the Guidelines, Robinson timely appealed.
Robinson contends on appeal that his sentence is
unreasonable for three reasons: (1) he was improperly
designated a career offender under USSG § 4B1.1(a); (2) his
indictment was defective in failing to recite each element of
his offense; and (3) he received a sentence greater than the
applicable statutory maximum. 1
This court reviews a sentence for reasonableness under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
1
Judging from the contours of the claims he presents here,
it appears that Robinson is challenging the procedural
reasonableness of his sentence, notwithstanding his claim to be
mounting an attack on its “substantive” reasonableness.
3
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51. While a sentence may be
substantively unreasonable if the § 3553(a) factors do not
support the sentence, “[r]eviewing courts must be mindful that,
regardless of ‘the individual case,’ the ‘deferential abuse-of-
discretion standard of review . . . applies to all sentencing
decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall,
552 U.S. at 52). Moreover, a sentence that falls within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
Because Robinson preserved none of his present claims
for appeal, this court reviews them for plain error. United
States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). On plain
error review, the court must determine “(1) whether there was
error; (2) whether it was plain; (3) whether it affected [the
appellant’s] substantial rights; and (4) whether, if the first
4
three criteria are met, we should exercise our discretion to
notice the error.” United States v. Martinez, 277 F.3d 517, 529
(4th Cir. 2002).
Robinson first contends that the PSR improperly
classified him as a career offender under USSG § 4B1.1(a).
Inasmuch as Robinson claims that his § 924(c)(1)(A) conviction
is not a crime of violence for purposes of USSG § 4B1.1(a)(2),
his argument is beside the point. USSG § 4B1.1(a)(2) provides
that the instant offense of conviction must be “either a crime
of violence or a controlled substance offense” for the career
offender provisions to apply. USSG § 4B1.1(a)(2). As explained
in the commentary to USSG § 4B1.2, a violation of 18 U.S.C.
§ 924(c) is a controlled substance offense so long as the
“offense of conviction established that the underlying offense
was a . . . ‘controlled substance offense.’” USSG § 4B1.2, cmt.
n.1. It is undisputed that the offense underlying Robinson’s
§ 924(c)(1)(A) conviction is a controlled substance offense
within the meaning of USSG § 4B1.2(b); namely, possession with
the intent to distribute 5.72 grams of crack cocaine. Thus,
Robinson’s § 924(c)(1)(A) conviction qualifies as a “controlled
substance offense” for purposes of USSG § 4B1.1(a)(2), rendering
moot his argument that it is not a “crime of violence” for
purposes of that provision.
5
Inasmuch as Robinson maintains that his second degree
lynching conviction does not constitute a “crime of violence”
for purposes of USSG § 4B1.1(a)(3) such that it cannot serve as
a predicate offense to support his designation as a career
offender, he is incorrect. At the time of Robinson’s offense in
2004, second degree lynching was defined in South Carolina as
“any act of violence inflicted by a mob upon the body of another
person and from which death does not result.” State v. Smith,
352 S.C. 133, 137, 572 S.E.2d 473, 475 (S.C. Ct. App. 2002). We
conclude that Robinson’s conviction for second degree lynching
was a crime of violence for purposes of USSG § 4B1.1(a)(3).
United States v. Clay, 627 F.3d 959, 966 (4th Cir. 2010). 2
Accordingly, we are persuaded that Robinson was properly
designated a career offender under USSG § 4B1.1(a).
Robinson next urges that Count Three of his indictment
was defective because it failed to recite a violation of 18
U.S.C. § 924(e) and failed to put Robinson on notice that he was
subject to an increased sentencing range as a career offender.
We note, however, that “a guilty plea constitutes a waiver of
all nonjurisdictional defects.” United States v. Willis, 992
2
To the extent that Robinson claims that the district court
ruled that the lynching conviction did not constitute a
predicate offense, our review of the record convinces us
otherwise.
6
F.2d 489, 490 (4th Cir. 1993). Defects in the indictment are
not jurisdictional. United States v. Cotton, 535 U.S. 625, 631
(2002). Robinson’s counseled guilty plea therefore forfeited
appellate review of his claim.
In his last assignment of error, Robinson asserts that
the district court should have imposed only a sixty-month
sentence upon him because the “maximum possible penalty for a
violation of [§] 924(c)(1)([A]) is five years.” (Appellant’s
Br. at 15). Unfortunately for Robinson, this court has
previously observed that, because § 924(c)(1)(A) does not
specify otherwise, its maximum penalty is life. United
States v. Cristobal, 293 F.3d 134, 147 (4th Cir. 2002). See
also United States v. O’Brien, 130 S. Ct. 2169, 2178 (2010)
(noting that the current version of § 924(c) provides for
mandatory minimums rather than mandatory sentences).
Because the 180-month sentence imposed on Robinson was
the product of neither procedural nor substantive error, we
affirm the judgment of 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.
AFFIRMED
7