United States v. Robinson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD B. ROBINSON, JR.,
Defendant - Appellant.
No. 04-7863
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD ROBINSON,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-03-105; CA-04-1702-3)
Submitted: March 3, 2006 Decided: March 31, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
No. 04-5003 affirmed; No. 04-7863 dismissed by unpublished per
curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Deborah B. Barbier, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Richard B. Robinson, Jr., pled guilty to being a
convicted felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2000). He was
sentenced to the statutory mandatory minimum term as an armed
career criminal, under 18 U.S.C. § 924(e)(1) (2000), of 180 months
of imprisonment. Robinson did not file a direct appeal. He filed
a motion to vacate, set aside or correct sentence under 28 U.S.C.
§ 2255 (2000), alleging ineffective assistance of counsel and that
he was incorrectly classified and sentenced as an armed career
criminal.
The district court denied the motion in part as to the
ineffective assistance of counsel claim, but granted it as to
Robinson’s challenge to his armed career criminal status, and
vacated Robinson’s sentence, finding that Robinson correctly argued
that a prior state conviction for mere possession of a firearm
should not have been counted as a violent felony, and hence a
qualifying predicate offense, under the armed career criminal
provisions. At resentencing, the district court, relying on United
States v. Letterlough, 63 F.3d 332 (4th Cir. 1995), found that
Robinson was appropriately classified as an armed career criminal
based on his seven prior drug convictions. The district court
resentenced Robinson to 180 months of imprisonment.
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Robinson appeals from the amended judgment (No. 04-5003),
and from the district court’s denial of his § 2255 ineffective
assistance of counsel claim (No. 04-7863). Robinson first contends
that the district court erred at resentencing by allowing the
Government to argue additional evidence--that five of the seven
counts of drug distribution were separate offenses and thus counted
as five predicate offenses--in classifying him as an armed career
criminal. This court reviews the district court’s application of
the sentencing enhancements de novo and factual findings with
respect to sentencing for clear error. United States v. Bollin,
264 F.3d 391, 415 (4th Cir. 2001). Robinson does not contest that
five of the seven convictions of cocaine base distribution are
separate offenses under Letterlough. Rather he argues that his
sentence was vacated for insufficient evidence to prove Robinson
should have been classified as an armed career criminal, and thus,
under United States v. Parker, 30 F.3d 542 (4th Cir. 1994), the
Government is barred from presenting additional evidence on
resentencing.
Robinson’s reliance on Parker is misplaced. In Parker,
we found there was insufficient evidence to prove beyond a
reasonable doubt that Parker’s 21 U.S.C. § 841 (2000) violation
occurred within 1000 feet of a playground, as defined in 21 U.S.C.
§ 860 (2000), and thus, he should not have been convicted or
sentenced under § 860, which doubled the potential penalty.
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Parker, 30 F.3d at 553. We held that on resentencing, the
Government should not be afforded a second opportunity to prove
that the violation occurred within 1000 feet of a playground.
Parker, 30 F.3d at 553-54. Here, contrary to Parker, the evidence
relied on by the Government to classify Robinson as an armed career
criminal was contained in the original presentence report, which
indicated that Robinson had pled guilty to seven counts of
distribution of crack cocaine that occurred between September 18,
1991, and October 9, 1991. Moreover, Parker involved a disputed
question of fact, which is not the case here because Robinson has
not disputed any fact contained in his presentence report or
amended presentence report. We find there was sufficient
information inherent in the facts of the prior convictions for the
district court to impose an armed career criminal sentence without
additional fact finding. See United States v. Thompson, 421 F.3d
278, 282-83 (4th Cir. 2005), cert. denied, __ U.S. __, 2006 WL
521274 (U.S. Mar. 6, 2006) (No. 05-7266).
Further, “where a sentencing issue was not actually
litigated and resolved in the original proceeding, and [] the
failure to so litigate the issue was directly caused by the error
in the judgment of which the § 2255 petitioner complains, it is
‘appropriate’ for the district court to resolve the issue in
correcting the petitioner’s sentence.” United States v. Hillary,
106 F.3d 1170, 1173 (4th Cir. 1997). There was no need for the
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Government to initially consider Robinson’s multiple prior drug
convictions separately because it believed the conviction for
possession of a firearm was enough to establish the three required
predicate offenses. On resentencing it was appropriate for the
district court to consider and resolve the issue as to whether
Robinson’s prior convictions qualified as predicate offenses for
his classification as an armed career criminal, because failure to
previously resolve the issue was directly caused by the error in
the judgment that Robinson successfully challenged in his § 2255
motion. Accordingly, we find the district court did not err in
resentencing Robinson as an armed career criminal.
Turning to Robinson’s appeal of the district court’s
denial of his ineffective assistance of counsel claims in his
§ 2255 motion, an appeal may not be taken from the district court’s
judgment in a § 2255 proceeding unless the appellant obtains a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). An
appellant is not entitled to a certificate of appealability unless
he makes “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Where a district court rejects
the constitutional claims on the merits, the appellant must
demonstrate “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because
Robinson does not raise the issue of the district court’s denial of
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his § 2255 motion of his ineffective assistance of counsel claim in
his brief, we find he has thereby waived it. See Canady v. Crestar
Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir. 1997). We therefore
deny a certificate of appealability and dismiss appeal No. 04-7863.
In sum, we affirm Robinson’s conviction and sentence in
No. 04-5003 and deny a certificate of appealability and dismiss
appeal No. 04-7863. 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.
No. 04-5003 AFFIRMED
No. 04-7863 DISMISSED
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