United States v. Clifton Robinson ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 4, 2020
Decided March 5, 2020
Before
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-3426
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 16-cr-10053-001
CLIFTON ROBINSON, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
At a bench trial, the district court found Clifton Robinson guilty of sixteen fraud-
related counts: conspiracy to defraud the government, 18 U.S.C. § 286, eight counts of
wire fraud, id. § 1343, five counts of mail fraud, id. § 1341, and two counts of aggravated
identity theft, id. § 1028A(a)(1). The court sentenced Robinson to 99 months in prison
(63 concurrent months for Counts 1 through 14, and 24 months on Counts 15 and 16,
with 36 of those months to run consecutively to the 63-month sentence) followed by
three years’ supervised release. The court also ordered him to pay $1.2 million in
restitution. Robinson filed a notice of appeal, but his appointed counsel asserts that the
appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738
(1967). Robinson opposes counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains
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the nature of the case and addresses potential issues that this kind of appeal might
involve. Because the analysis appears thorough, we limit our review to the subjects that
she discusses and those in Robinson’s response. United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
The government introduced evidence that, between 2012 and 2016, Robinson
schemed to file over 300 fraudulent tax returns, claiming a total of more than $1.8
million in refunds—about $1.2 million of which was distributed before the scheme was
uncovered. The record—which included text messages, other documents, and the
testimony of 21 witnesses—showed that Robinson’s role in the scheme was to collect
social security numbers and birth dates (sometimes with, often without, the person’s
permission) and then provide that information to one of his co-defendants, Velma
Robertson. She would then use that information to file false tax returns. Evidence also
showed that Robinson was involved in the receipt and distribution of the refunds that
the fraudulent returns generated.
Counsel first considers whether Robinson could contest the admission of
evidence at trial, but appropriately concludes that a challenge on this ground would be
frivolous. We would review the court’s evidentiary rulings for abuse of discretion and
would reverse only if “the record contains no evidence on which the district court
rationally could have based its ruling.” United States v. Gorman, 613 F.3d 711, 717
(7th Cir. 2010).
Robinson raised a hearsay objection to one witness’s testimony regarding an
alleged statement from Robinson’s daughter. In the statement, the daughter asked for
the witness’s identifying information so that her dad could claim the witness as a
dependent on his tax return. The district court admitted the statement under Federal
Rule of Evidence 801(d)(2)(E), which allows statements made by a co-conspirator in
furtherance of the conspiracy. See United States v. Quiroz, 874 F.3d 562, 570 (7th Cir.
2017). Robinson argued that no evidence suggested that his daughter was a co-
conspirator (she was not indicted). But the district court ruled that the preponderance of
the evidence—testimony from those involved in the conspiracy and the daughter’s
alleged statement—showed that she was part of the conspiracy. It would be frivolous to
argue that this finding was clearly erroneous, see id., so counsel rightly concludes that it
would be useless to contend that the court abused its discretion in overruling the
hearsay objection.
No. 18-3426 Page 3
Robinson also objected to the admission of a spreadsheet as a business record.
The document summarized the deposit of tax-refund checks into his bank accounts and
the bank accounts of his co-conspirators. Under Federal Rule of Evidence 1006, a
summary of records is admissible if “the underlying records are accurate and would be
admissible as evidence.” United States v. Oros, 578 F.3d 703, 708 (7th Cir. 2009). The
court admitted the underlying bank records into evidence after the government
established their accuracy and after Robinson’s counsel affirmed that he had no
objection. So, a contention that the court abused its discretion by allowing the summary
of those records would be pointless. (Robinson’s counsel affirmatively stated that he
had no objection to every other exhibit offered, so Robinson has waived any other
potential error. See United States v. Schalk, 515 F.3d 768, 774 (7th Cir. 2008).)
Next, counsel evaluates whether Robinson might argue that the government’s
evidence was insufficient to sustain his convictions. But counsel properly concludes that
the evidence, viewed in the light most favorable to the government, would enable a
rational trier of fact to find “the essential elements of the crime[s] beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Dingle,
862 F.3d 607, 614 (7th Cir. 2017). The evidence of Robinson’s conspiracy to defraud the
government, see 18 U.S.C. § 286, was overwhelming. Velma Robertson’s testimony of
the inner workings of the conspiracy and Robinson’s role in it easily supports his
conviction. See, e.g., United States v. Elder, 840 F.3d 455, 460 (7th Cir. 2016) (co-
conspirator testimony about defendant’s role in conspiracy supported a conviction for
conspiracy). Many others who were complicit in the scheme, but were not charged, also
testified to Robinson’s role in filing the fraudulent tax returns. And Robinson’s own text
messages implicated him in the conspiracy and substantiated the witness testimony.
As counsel points out, the record also contained ample evidence to find
Robinson guilty of wire fraud and mail fraud. The testimony of IRS investigators and
co-conspirators, documentary evidence, and text messages connected the fraudulent tax
returns to the wire-fraud and mail-fraud counts. And the parties stipulated at trial that
the scheme involved “wire communications affecting interstate commerce” and that the
“information and matter at issue was delivered by mail,” thus supporting Robinson’s
convictions under 18 U.S.C. § 1343 and § 1341. In his Rule 51(b) response, Robinson
argues that the government offered no evidence of an interstate nexus as required for a
wire-fraud conviction under § 1343. But the stipulation says otherwise. Although
Robinson contends that the stipulation was made over his objection at trial, he is wrong.
No. 18-3426 Page 4
The district court explicitly asked Robinson on the first day of trial whether he agreed to
the stipulation, and he (not his counsel) said that he did.
As for the aggravated identity-theft offenses, a challenge to the sufficiency of the
evidence likewise would be futile. Both victims testified that they did not give Robinson
permission to use their (or their children’s) identity information to file tax returns on
their behalf. The district court found this testimony credible and ruled that Robinson
was guilty under 18 U.S.C. § 1028A(a)(1). Credibility determinations are within the
province of the finder of fact and will be reversed only if the “credited testimony is
internally inconsistent, implausible, or contradicted by extrinsic evidence,” none of
which is true here. Blake v. United States, 814 F.3d 851, 855 (7th Cir. 2016). At trial, the
victims’ testimony was corroborated by bank statements, text messages, and a
spreadsheet showing that Robinson stole their identity information to file fraudulent tax
returns.
Finally, counsel correctly concludes that a challenge to Robinson’s sentence
would be fruitless. Counsel considers arguing that Robinson should not have been
assessed three points for his earlier conviction of aggravated criminal sexual assault,
see U.S.S.G. § 4A1.2(d)(1), which resulted in a criminal history category of II. But the
sentence on that conviction ended in 2000, and Robinson was convicted here of conduct
that began in 2012, so the overlap between the two falls within the 15-year period
specified in the guidelines for the additional three points. See U.S.S.G. § 4A1.2(e)(1).
Therefore, it would be frivolous to argue that the district court procedurally erred in
calculating a guidelines range of 51 to 63 months on the first 14 counts based on a
criminal history category of II and an offense level of 23 (a base level offense level of 7
plus a 16-level enhancement for an intended loss of more than $1,500,000). See U.S.S.G.
§§ 2B1.1(a)(1), 2B1.1(b)(1)(I), 3D1.2(d). And for Counts 15 and 16, the court correctly
accounted for the statutorily required 24-month consecutive sentence for aggravated
identity theft. See 18 U.S.C. § 1028A(a)(1); U.S.S.G. § 2B1.6(a).
Counsel also considers whether Robinson could challenge his sentence as
substantively unreasonable but properly concludes that he could not. Robinson’s
sentence is within the applicable guidelines range, so we would presume it to be
reasonable. United States v. Cunningham, 883 F.3d 690, 701 (7th Cir. 2018). Nothing in the
record rebuts that presumption. The transcript from Robinson’s sentencing hearing
shows that the court permissibly weighed the required factors under 18 U.S.C.
§ 3553(a). The court reasonably deemed the offense serious, noting the magnitude of the
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conspiracy, which put “at risk the entire system of people claiming what they’re
entitled to receive as refunds.” See 18 U.S.C. § 3553(a)(1), (2). The court also reasonably
wanted to deter such conduct and highlighted Robinson’s lack of remorse. See id.
In his Rule 51(b) response, Robinson broadly asserts that his appointed attorney
was ineffective. But we repeatedly have observed that a challenge to the adequacy of
counsel’s performance is best pursued through a motion under 28 U.S.C. § 2255 so that
a more complete record can be made. See Massaro v. United States, 538 U.S. 500, 504–05
(2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014). Robinson also contends
that his attorney for this appeal was ineffective because she failed to raise an ineffective-
assistance argument on his behalf. But heeding this court’s advice to save that claim for
collateral review does not make appellate counsel ineffective.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Robinson’s
appeal.