United States v. Kenyun Robinson ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3266EM
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Kenyun Robinson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 23, 1999
Filed: March 4, 1999
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Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Kenyun Robinson appeals his sentence for possession with intent to distribute
over 100 grams of cocaine base. Robinson contends the district court improperly
refused to apply the sentencing guidelines safety-valve provision and sentence him
below the statutory mandatory minimum sentence. We disagree and affirm.
Under the safety-valve provision, a defendant may be sentenced within the
applicable guidelines range notwithstanding any statutory minimum sentence if,
among other things, "the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense." U.S. Sentencing Guidelines
Manual § 5C1.2(2) (1998). The defendant has the burden to show each condition of
the safety-valve provision has been satisfied. See Wright v. United States, 113 F.3d
133, 134 (8th Cir. 1997).
In his plea agreement, Robinson adopted the factual narration about his arrest
contained in a magistrate judge's report and recommendation. See United States v.
Dailey, 918 F.2d 747, 748 (8th Cir. 1990) (court may rely on stipulations between
government and defendant in determining facts relevant to sentencing). That
narration, and other facts recited in the plea agreement, show Robinson jumped out
of a parked car when police officers discovered he was carrying crack cocaine,
striking one officer with the car door. Robinson then struggled with the officers
while trying to throw the crack cocaine over a fence. According to Robinson's
presentence report (PSR), he kicked and pushed the officers during the struggle. See
United States v. LaRoche, 83 F.3d 958, 959 (8th Cir. 1996) (per curiam ) (district
court may accept as true the factual allegations contained in PSR not specifically
objected to by parties). Having carefully considered the record, we conclude the
district court's finding that Robinson used violence in connection with his offense is
not clearly erroneous. Thus, Robinson was ineligible for safety-valve relief.
We affirm Robinson's sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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