United States v. Robinson , 234 F. App'x 77 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cr-
00219-AMD)
Submitted: May 25, 2007 Decided: July 11, 2007
Before WILKINSON and MICHAEL, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Harold I. Glaser, GLASER & SOLOMON, L.L.C., Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, James T.
Wallner, Special Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Robinson was convicted by a jury of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000). The district court found that Robinson’s
criminal history qualified him for sentencing under the Armed
Career Criminal Act (“ACCA”), and sentenced Robinson to 235 months
of imprisonment under the then-mandatory federal sentencing
guidelines.1
We previously affirmed Robinson’s conviction, but vacated
his sentence, and remanded for resentencing in accordance with
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005).2 At resentencing, the
district court sentenced Robinson to 220 months’ imprisonment,
fifteen months below the advisory guidelines range. Robinson again
appeals, contending that the district court misapplied Booker, that
the prosecutor improperly “vouched” to the court during sentencing
1
The probation officer assigned Robinson a base offense level
of twenty-four based U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(a)(2) (2004), because Robinson had at least two prior
felony convictions for controlled substance crimes, and then
applied an enhancement pursuant to USSG § 4B1.4, bringing his total
offense level to thirty-three, with an attendant guidelines range
of 235 to 293 months’ imprisonment. The probation officer also
assigned Robinson a criminal history category of VI.
2
We also found to be without merit Robinson’s claim that the
district court erred under Blakely v. Washington, 542 U.S. 296(2004) and United States v. Booker, 543 U.S. 200 (2005), when it
found him eligible for sentencing under the ACCA based on predicate
convictions that had neither been found by a jury nor admitted by
him.
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regarding prior charged conduct, and that the district court erred
in sentencing Robinson under the ACCA, on the basis that the
district court failed to properly apply 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006). We affirm.
Robinson first asserts that the district judge misapplied
the Court’s holding in Booker, noting that the error was predicated
on “improper vouching” by the prosecutor during sentencing. He
contends that by calling attention to the facts underlying the
instigation of the federal charges against him, the prosecutor
influenced the district court to give Robinson a harsher sentence.
The statements to which Robinson objects were made at both the
original sentencing hearing, as well as the resentencing hearing,
and related to Robinson’s prior arrest and trial for attempted
murder in the Circuit Court for Baltimore City, which trial ended
in a hung jury. Robinson alleges that the Government erred in
asking the district court to consider a charge for which Robinson
had never been convicted, and asserts the district court gave
improper consideration to facts that were collateral to the
§ 3553(a) factors in determining Robinson’s sentence.
As Robinson did not challenge the prosecutor’s statements
at the sentencing hearing, we review his claim for plain error.
United States v. Olano, 507 U.S. 725, 732 (1993). “Vouching occurs
when the prosecutor indicates a personal belief in the credibility
or honesty of a witness.” United States v. Sullivan, 455 F.3d 248,
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259 (4th Cir. 2006) (quoting United States v. Sanchez, 118 F.3d
192, 198 (4th Cir. 1977)). In this case, the prosecuting
attorney’s comments did not convey, either implicitly or
explicitly, an expression of the prosecutor’s or the Government’s
opinion as to the veracity of any witness. See Sanchez, 118 F.3d
at 198) (prosecutor’s comment not an expression of opinion).
Rather, the remarks in this case were made to the judge at
sentencing, and had nothing to do with any witness. As such, we
find that the comments were not vouching at all, as alleged by
Robinson. In addition, the statements were not improper, as the
prosecutor simply was stating the procedural posture of the case in
the state system and asserting that Robinson would have been
retried but for the federal conviction. None of the statements to
which Robinson objects were of the prosecutor’s personal beliefs
regarding any witness, about the merits of the dismissed charges,
nor about the outcome of a second state trial had one occurred.
Moreover, it has been established even before Booker was decided
that courts are free to consider dismissed or even acquitted
conduct when formulating a sentence. See, e.g., United States v.
Martinez, 136 F.3d 972, 979 (4th Cir. 1998).3 Finally, pursuant to
3
Robinson’s contention that by calling attention to the facts
underlying the instigation of the federal charges against him, the
prosecutor influenced the district court to give Robinson a harsher
sentence, is directly contradicted by the district court’s
statement at sentencing that its reason for sentencing Robinson to
fifteen fewer months than it had when it originally sentenced
Robinson was because it wanted to give him credit for the time he
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§ 3553(a)(1), Robinson’s criminal history and characteristics
properly are subject to the district court’s consideration when
formulating a sentence. Accordingly, we find that Robinson failed
to demonstrate error with regard to the prosecutor’s statements
relative to the state court charges, and, as discussed more fully
below, we further find that the district court fully complied with
Booker in resentencing Robinson under an advisory guidelines
scheme.
Robinson again asserts district court error in enhancing
his sentence under the ACCA, basing his challenge on the district
court’s alleged failure to consider all the factors in § 3553(a) in
determining his sentence. Specifically, he claims the district
court failed to consider a series of exhibits he presented to it,
including letters from his parents, his high school diploma, and
evaluations and certificates of completion from various drug
rehabilitation programs and educational and vocational classes,
challenges the district court’s failure to grant his requested
departure due to the alleged over representation of the seriousness
of his criminal history, his young age, and his drug and alcohol
abuse history, and he claims the district court failed to
“adequately” factor in the need to provide him with educational or
vocational training, medical care, or other correctional treatment.
served in the State institution while awaiting trial on the
attempted murder case.
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In imposing a sentence after Booker, the district court
must engage in a multi-step process. First, the court must
correctly determine, after making appropriate findings of fact, the
applicable guideline range. See United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). Next, the court must “determine whether
a sentence within that range . . . serves the factors set forth in
§ 3553(a) and, if not, select a sentence [within statutory limits]
that does serve those factors.” United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). The
district court must articulate the reasons for the sentence
imposed, particularly explaining any departure or variance from the
guidelines range. See 18 U.S.C.A. § 3553(c) (West Supp. 2006);
Hughes, 401 F.3d at 546 & n.5. The explanation of a variance
sentence must be tied to the factors set forth in § 3553(a) and
must be accompanied by findings of fact as necessary. See Green,
436 F.3d at 455-56. The district court need not discuss each
factor set forth in § 3553(a) “in checklist fashion”; “it is enough
to calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.” United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (internal
quotation marks omitted). This court reviews the sentence for
reasonableness, considering “the extent to which the sentence . . .
comports with the various, and sometimes competing, goals of
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§ 3553(a).” United States v. Moreland, 437 F.3d 424, 432-33 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Here, the district court sentenced Robinson below his
properly calculated Guideline sentencing range. Despite Robinson’s
arguments, the record reveals that the district court considered
the record, the presentence report, defense counsel’s memorandum
and argument in support of various departures, and the factors in
§ 3553(a). The district court enunciated each § 3553(a) factor it
considered prior to imposing sentence on Robinson, and specifically
referred to Booker at the resentencing hearing. The court stated
that while it had considered Robinson and his family, the important
factors it needed to consider were to protect the community, to
show the seriousness of the offense, and to deter future criminal
activity by Robinson. It rejected Robinson’s requests for further
departure. The district court noted that Robinson demonstrated
much anger during the sentencing hearing, and recommended that
Robinson be admitted to a mental health treatment program, as the
Bureau of Prisons determined to be appropriate. It further
included in its sentencing ruling that Robinson participate in a
vocational/educational program, as well as a substance abuse
program.
The record reveals that the district court was familiar
with Robinson’s history and background, it had sentenced Robinson
originally, and it was familiar with the details of Robinson’s case
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from the initial sentencing hearing. Robinson’s presentence report
outlined his offense conduct and his criminal history. Finally,
Robinson and his attorney took the opportunity to argue at length
at resentencing in support of a shorter sentence and about the
strength of the evidence against Robinson, providing additional
information about the nature and circumstances of his circumstances
and his offense prior to the district court’s imposition of
sentence.
We find that the district court here considered all the
appropriate statutory and constitutionally mandated factors, as
well as the information and arguments presented to it in the course
of sentencing, and it explained its reasons for imposing a sentence
below the Guidelines range in deciding Robinson’s sentence. The
district court fully complied with the mandates of Booker and
Hughes, and find that Robinson’s sentence was reasonable and not in
violation of his Sixth Amendment rights. See Green, 436 F.3d at
456-58 (discussing standards to determine whether sentence is
reasonable). See generally United States v. Hill, 70 F.3d 321,
324-25 (4th Cir. 1995).
Accordingly, we affirm Robinson’s sentence. Given that
Robinson is represented by counsel, we deny his motion to file a
supplemental pro se brief, and further deny his motion to relieve
his attorney. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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