United States v. James Earl Robinson ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0502n.06
No. 22-1230
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 05, 2023
KELLY L. STEPHENS, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
JAMES EARL ROBINSON, )
Defendant-Appellant. ) OPINION
)
)
Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant James Earl Robinson
appeals his sentence, imposed after he pleaded guilty to one count of possession of a firearm by a
convicted felon, one count of possession with intent to distribute controlled substances, and one
count of possession of a firearm in furtherance of a drug-trafficking crime. He challenges the
district court’s application of guideline and statutory enhancements based on his prior felony drug
convictions. We AFFIRM.
I.
On January 27, 2021, after receiving a tip from a confidential informant that Robinson was
selling methamphetamine and heroin, officers obtained a search warrant and stopped him in the
parking lot of a Kalamazoo hotel. When they searched Robinson’s car, the officers found roughly
seven grams of suspected methamphetamine, one gram of heroin, and two digital scales, and
Robinson informed them that he had a gun in his pocket. Laboratory analysis later revealed that
the suspected methamphetamine contained 6.827 grams of methamphetamine with an approximate
No. 22-1230, United States v. Robinson
purity of 98 percent. Robinson, an absconder from parole when he was arrested, was indicted on
one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (Count 1), one count of possession with intent to distribute controlled substances in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 2), and 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)(i)
(Count 3). Robinson pleaded guilty to all three charges.
As required by 21 U.S.C. § 851, the government notified the court that it intended to seek
an enhanced sentence based on two of Robinson’s prior state-court convictions for delivery or
manufacture of less than fifty grams of cocaine in violation of Michigan law. For those prior state-
court convictions, Robinson received a sentence of one to twenty years on the first charge on
November 14, 2005, and was first paroled on January 20, 2009. He was sentenced on July 13,
2009, to a term of twenty-nine months to thirty years on the second charge and paroled on April
21, 2015.
Ahead of his sentencing, Robinson argued that because Michigan law defines cocaine more
broadly than federal law, the prior convictions could not serve as the basis for two sentencing
enhancements—the career-offender enhancement in the Sentencing Guidelines, tied to prior
convictions for “controlled substance offenses,” and the increased statutory maximum in 21 U.S.C.
§ 841 for defendants with prior “felony drug offense” convictions.1 Additionally, Robinson argued
that the career-offender enhancement should not apply because the government had failed to show
that his 2005 conviction resulted in incarceration within fifteen years of committing the charged
1
Robinson also argued that Michigan law is broader than federal law because its definition of cocaine included
[123I]ioflupane, a radioactive cocaine derivative exempted from the federal controlled substances schedule. Robinson
does not raise this issue on appeal.
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federal offenses in January 2021. The district court held an evidentiary hearing on Robinson’s
objections, and both sides presented chemistry experts who testified to the scope of the Michigan
and federal cocaine definitions. Ultimately, the court concluded that both enhancements applied—
the career-offender enhancement because the Sentencing Guidelines do not require congruity
between underlying state offenses and federal law, and the increased statutory maximum because
the Michigan and federal definitions of cocaine covered the same substances. It further concluded
that Robinson’s 2005 conviction provided a valid basis for the career-offender enhancement
because he had been continuously on parole for that offense up to the date of his sentencing.
Applying both enhancements, the presentence report (PSR) calculated the advisory
Guidelines range as 262 to 327 months. The court imposed a total sentence of 262 months’
incarceration: 120 months on Count 1; a concurrent 202-month sentence on Count 2; and a 60-
month sentence on Count 3, consecutive to the sentences for Counts 1 and 2.
II.
On appeal, Robinson challenges his sentence on four grounds. None provides a basis for
reversal.
A.
Robinson first argues that the district court incorrectly applied two sentencing
enhancements based on his prior Michigan cocaine-possession convictions that raised his total
offense level from 24 to 31. Absent these enhancements, Robinson’s Guidelines range for Counts
1 and 2 would have been determined by the quantity and purity of the drugs found in his
possession. However, because of Robinson’s prior convictions, the district court applied the
career-offender enhancement, which determines a defendant’s offense level solely by reference to
the offense’s statutory maximum.
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The career-offender enhancement applies if a defendant, whose instant offense is a felony
crime of violence or controlled substance offense committed as an adult, “has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). The Guidelines define “controlled substance offense” as:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
Id. § 4B1.2(b). The Guidelines leave “‘controlled substance’ otherwise undefined[.]” United
States v. Clark, 46 F.4th 404, 408 (6th Cir. 2022).
Here, 21 U.S.C. § 841(b)(1)(C) supplied the relevant statutory maximum. That provision
sets a twenty-year statutory maximum for possession with intent to distribute “a controlled
substance in schedule I or II.” 21 U.S.C. § 841(b)(1)(C). However, another enhancement—
referred to as the “851 enhancement”—increases the statutory maximum to thirty years if the
defendant has “a prior conviction for a felony drug offense.” Id. The Controlled Substances Act
defines “felony drug offense” as one “punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
Id. § 802(44). The definition of “narcotic drugs” includes “[c]ocaine, its salts, optical and
geometric isomers, and salts of isomers.” Id. § 802(17) (emphasis added).
The district court concluded that both enhancements apply because Robinson’s two
convictions for possession with intent to deliver less than fifty grams of cocaine in violation of
Michigan Compiled Laws § 333.7401(2)(a)(iv) constitute “controlled substance offenses” within
the meaning of the Guidelines and “felony drug offenses” within the meaning of § 841.
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Robinson argues that this was error because Michigan law—which criminalizes “cocaine, its salts,
stereoisomers, and salts of stereoisomers”—sweeps more broadly than federal law. Mich. Comp.
Laws § 333.7214(a)(iv) (emphasis added). As a result, he argues, his Michigan convictions cannot
serve as valid predicates for either enhancement, and the district court miscalculated the advisory
Guidelines range.
“Whether a prior conviction counts as a predicate offense under the Guidelines is a question
of law subject to de novo review,” United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en
banc), as are a district court’s “determinations regarding statutory construction,” United States v.
Felts, 674 F.3d 599, 602 (6th Cir. 2012). Two recent Sixth Circuit decisions foreclose Robinson’s
argument. In United States v. Jones, this court held that the Guidelines’ definition of a controlled
substance offense is not “limited to substances criminalized under the Controlled Substances Act.”
81 F.4th 591, 597 (6th Cir. 2023). The district court’s application of the career-offender
enhancement, which rested on its conclusion that “there doesn’t need to be any congruity between
federal law and state law” definitions of controlled substance, was therefore not erroneous. R.67,
PID 694. And in United States v. Wilkes, this court concluded that Michigan law does not in fact
criminalize a broader range of substances than federal law, as “the federal statutory term—optical
and geometric isomers—is coextensive with the Michigan statutory term, stereoisomers.” 78 F.4th
272, 285 (6th Cir. 2023).2 Although this analysis came in the context of evaluating a mandatory
minimum under the Armed Career Criminal Act, the Wilkes court interpreted the same federal and
Michigan definitions at issue here. See United States v. Johnson, 2023 WL 5206447, at *2 (6th
2
The court in Wilkes considered the testimony and reports of the same experts Robinson and the government presented
in this case—Dr. Gregory B. Dudley for the defense, and Dr. Scott E. Denmark for the government. See Wilkes,
78 F.4th at 276.
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No. 22-1230, United States v. Robinson
Cir. Aug. 14, 2023) (applying Wilkes’ holding to the definition of “serious drug felonies” under
21 U.S.C. § 841(b) because “it settled the meaning of cocaine under the Controlled Substances
Act”). The district court’s application of the 851 enhancement, which was based on its conclusion
that both definitions covered the same substances, was therefore not erroneous either.
B.
Second, Robinson argues that the district court incorrectly applied the career-offender
enhancement because his 2005 conviction does not qualify as a prior conviction under the
Guidelines due to its age. Prior convictions can serve as predicates for the career-offender
enhancement if they fall within the criteria outlined in Section 4A1.2 of the Guidelines. United
States v. Robertson, 260 F.3d 500, 509 (6th Cir. 2001); U.S.S.G. § 4B1.2 cmt. n.3 (“The provisions
of § 4A1.2 . . . are applicable to the counting of convictions under § 4B1.1.”). Under Section
4A1.2, prior convictions count if they carried a “sentence of imprisonment exceeding one year and
one month” either “imposed within fifteen years of the defendant’s commencement of the instant
offense” or that “resulted in the defendant being incarcerated during any part of such fifteen-year
period.” U.S.S.G. § 4A1.2(e)(1). Revocation of parole also factors into calculating the fifteen-
year time period. Id. § 4A1.2(k)(2); see, e.g., United States v. Galaviz, 645 F.3d 347, 362 (6th Cir.
2011). In cases of parole revocation, the applicable time period is determined based on “the date
of last release from incarceration on such sentence.” U.S.S.G. § 4A1.2(k)(2).
Robinson received a sentence of twelve months to twenty years on November 14, 2005,
for his first Michigan cocaine-possession conviction. According to the PSR, he was paroled for
this offense on January 20, 2009. Robinson appears to argue that because he was sentenced to a
three to twenty-two year concurrent sentence for an unrelated criminal-sexual-conduct charge on
that same day, the government did not establish by a preponderance of the evidence that the drug
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conviction resulted in incarceration within the fifteen-year period—i.e., after January 27, 2006.
See United States v. Aleo, 681 F.3d 290, 298 (6th Cir. 2012) (“The government is required to
establish the existence of a factor supporting a sentencing enhancement by a preponderance of the
evidence.”); see also United States v. Tolliver, 949 F.3d 244, 249 (6th Cir. 2020) (per curiam) (a
preponderance of the evidence means “more likely than not”).
However, Robinson’s multiple parole violations resulted in terms of incarceration that
bring the 2005 conviction within the fifteen-year period. After being paroled on the first cocaine
possession charge on January 20, 2009, Robinson absconded from parole on February 5, 2009. He
subsequently returned to custody “with [a] new charge” on July 16, 2009, which appears to be the
2009 cocaine-possession charge. R.39, PID 118. Robinson was sentenced for that offense on July
13, 2009, and paroled on both cocaine offenses on April 21, 2015. He then repeatedly absconded
from parole and returned to custody for parole violations between June 2, 2015, and April 18,
2017; July 7, 2017, and November 14, 2018; and June 6, 2019, and June 10, 2020. After his June
10 release, he again absconded from parole on June 27, 2020. The Michigan Department of
Corrections informed the Probation and Pretrial Services office that Robinson had been under its
“continuous” jurisdiction since November 2005, and was still on parole for the 2005 conviction as
of the date of his arrest in this case. Id., PID 138. The government therefore did establish by a
preponderance of evidence that Robinson’s incarcerations for parole violations—which are listed
in the PSR under both his 2005 and 2009 offenses—are attributable to the 2005 conviction, and
that the 2005 conviction is a valid predicate conviction for the career-offender enhancement.
C.
Third, Robinson argues that the district court erred in applying the higher sentencing range
corresponding to high-purity methamphetamine. Methamphetamine of at least 80 percent purity
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is classified as “Ice” under the Guidelines, U.S.S.G. § 2D1.1(c) n.C, and is converted at a ratio of
ten times that of a methamphetamine mixture, id. § 2D1.1 cmt. n.8(D). Although the PSR
concluded that Robinson was a career offender, it provided an alternate calculation of his base
offense level without that enhancement. The converted drug weight drove that alternate
calculation and in making it, the PSR classified the methamphetamine as Ice.3 Relying on district-
court decisions finding that the Guidelines’ 10:1 enhancement for high-purity methamphetamine
lacks empirical grounding, Robinson argues that its application constituted error.
But converted drug weight had no bearing on Robinson’s ultimate sentence. Because the
district court (correctly) applied the career-offender enhancement, it did not base Robinson’s
sentence on converted drug weight. Instead, it determined his sentence with reference to the
statutory maximum for his § 841 charge, his acceptance of responsibility, and the mandatory five-
year minimum sentence imposed by 18 U.S.C. § 924(c)(1)(A) on Count 3. Any irrationality in the
Sentencing Guidelines’ treatment of high-purity methamphetamine had no effect on Robinson’s
sentence and is therefore not a basis for reversal.
D.
Finally, Robinson argues that the district court imposed a substantively unreasonable
sentence because it placed too much weight on the nature and circumstances of the offense and
too little on mitigating factors. This court reviews the substantive reasonableness of a sentence for
abuse of discretion, United States v. Ruiz, 777 F.3d 315, 319 (6th Cir. 2015), and “afford[s] a
rebuttable presumption of reasonableness to a properly calculated, within-Guidelines sentence,”
United States v. Graham, 622 F.3d 445, 464 (6th Cir. 2010). A district court imposes a
3
Without the career-offender enhancement, Robinson’s base offense level would have been 24, rather than 34. If the
methamphetamine had not been classified as Ice, his base offense level would have been 12.
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No. 22-1230, United States v. Robinson
substantively unreasonable sentence if it “selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent [18 U.S.C.] § 3553(a) factors or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Collington, 461 F.3d
805, 808 (6th Cir. 2006) (original alterations omitted) (quoting United States v. Webb, 403 F.3d
373, 385 (6th Cir. 2005)). Section 3353(a) factors include, inter alia, “the nature and
circumstances of the offense and the history and characteristics of the defendant,” “the seriousness
of the offense,” and the need “to afford adequate deterrence to criminal conduct.” 18 U.S.C.
§ 3353(a)(1)-(2).
Robinson first argues that the Guidelines “overstated” his criminal history, as his prior
convictions involved relatively small quantities of drugs. Appellant’s Br. at 39. Second, he argues
that his difficult upbringing and later substance-abuse issues—while “not a defense or an
excuse”—contributed to his criminal history. Id. at 40. He raised similar arguments in his
sentencing memorandum and during the sentencing hearing. In considering the § 3553(a) factors,
the district court concluded that a sentence within the Guidelines’ range, albeit at the low end, was
still warranted. It reached this conclusion because methamphetamine and heroin were “two of the
top three” most trafficked drugs in the Western District of Michigan, and it considered Robinson’s
combination of drug dealing and firearm possession dangerous and a “toxic mix.” R.67, PID 712-
13. It also noted that although Robinson’s offenses were “not the worst drug dealing situation that
the [c]ourt has seen,” specific deterrence was needed given his multiple parole violations. Id., PID
713. Additionally, the district court recommended that Robinson receive substance-abuse
treatment while incarcerated. See Webb, 403 F.3d at 385 (concluding the district court took the
personal characteristics of the defendant into account by recommending he participate in drug-
treatment and education programs while incarcerated). The district court therefore neither relied
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solely on the nature and circumstances of the offense, nor failed to consider the factor Robinson
argues should have been mitigating—his history and characteristics.4 That it viewed his history
and characteristics differently or assigned them less weight than Robinson hoped for does not
overcome the presumption that the within-Guidelines sentence imposed was reasonable. See
United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006).
III.
For these reasons, we AFFIRM.
4
Although the district court addressed Robinson’s personal characteristics, it did not explicitly mention his upbringing.
However, Robinson brings a substantive unreasonableness challenge based on an argument that the district court gave
impermissible weight to one factor, rather than a procedural reasonableness claim based on the adequacy of the district
court’s explanation of its sentence. See United States v. Jeter, 721 F.3d 746, 756 (6th Cir. 2013).
10