United States v. Robinson ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2009
No. 07-10668
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LESTER HENRY ROBINSON
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-37
USDC No. 3:92-CR-365-27
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Lester Robinson, federal prisoner # 23967-077, pleaded guilty in 1994 to
conspiracy to distribute and possess with intent to distribute cocaine and cocaine
base. In 2006, the district court granted Robinson’s motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2) lowering his original life sentence
to a 400-month term of imprisonment. Robinson now appeals the district court’s
dismissal as successive of his 28 U.S.C. § 2255 motion. He asserts that the
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-10668
instant motion was not successive because it raised a challenge to the 2006
sentence under United States v. Booker, 543 U.S. 220 (2005).
To the extent that Robinson is challenging the fact that his sentence was
enhanced based on facts not admitted by him or found by a jury, those factual
findings were made by the district court in conjunction with the original
sentencing, and those claims thus constitute a successive § 2255 challenge to the
original criminal proceeding. See United States v. Orozco-Ramirez, 211 F.3d 862,
869 (5th Cir. 2000). In his objections to the magistrate judge’s report, however,
Robinson argued that the district court improperly applied the Guidelines in a
mandatory fashion during the 2006 resentencing. As the Government concedes,
this issue could not have been raised in conjunction with the original sentencing
and it is thus not successive. Nevertheless, Robinson could have raised this
claim in a direct appeal from his resentencing, but because but he did not do so
the claim is procedurally barred from collateral review absent cause for the
default and actual prejudice as a result. See United States v. Kallestad, 236 F.3d
225, 227 (5th Cir. 2000).
When the movant has been given notice of a procedural default and an
opportunity to argue against the procedural bar, and the Government has not
intentionally waived the bar, we may raise the issue sua sponte. See Smith v.
Johnson, 216 F.3d 521, 523–24 (5th Cir. 2000). We therefore requested
supplemental briefs on the procedural default issue from Robinson and the
Government, and both parties have complied. As cause for failing to file a direct
appeal from his resentencing, Robinson argues that he was resentenced in
absentia, he lacked appointed counsel, he received the court’s resentencing order
over two weeks after it was entered, and the district court did not advise him of
his right to appeal. To show cause for a procedural default, a movant must
“show that ‘some objective factor external to the defense’ prevented him from
raising on direct appeal the claim he now advances.” United States v. Guerra,
94 F.3d 989, 993 (5th Cir. 1996) (citation omitted). Robinson’s allegations do not
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No. 07-10668
establish “cause” for his procedural default, see id., and we find no waiver of the
procedural bar by the Government. Robinson was resentenced in January 2006,
yet he did not even file the instant motion until nearly a year later in January
2007. Moreover, Robinson is also required to demonstrate actual prejudice by
demonstrating “not merely that the errors . . . created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage.” Hughes v.
Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (internal quotation marks and
citation omitted). Robinson does not even address, much less show, prejudice in
his supplemental brief, and the issue is therefore waived. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993). Because Robinson fails to overcome the
procedural bar, he is not entitled to relief even assuming arguendo that his claim
is not successive.
AFFIRMED.
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