United States v. Gregory Robinson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 11, 2009
No. 08-15859 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-00074-CR-J-16-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ROBINSON,
a.k.a. Dusty,
a.k.a. Darnley Wane Mathurin,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 11, 2009)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Gregory Robinson appeals the denial of his motion to reduce his sentence.
18 U.S.C. § 3582(c)(2). Robinson argues that he is eligible for a sentence
reduction under Amendment 706 and his sentence is unreasonable. Although the
district court erred by ruling that it lacked jurisdiction to modify Robinson’s
sentence, the error was harmless because the district court ruled alternatively that
Robinson’s sentence should not be reduced. We affirm the denial of Robinson’s
motion.
We review “de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d
1366, 1368 (11th Cir. 2008) (per curiam). A district court may reduce a term of
imprisonment when the guideline range is lowered by the Sentencing Commission.
18 U.S.C. § 3582(c). When the district court recalculates the sentence under the
amended guidelines, “all original sentencing determinations remain unchanged
with the sole exception of the guideline range that has been amended since the
original sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).
The district court must decide, in the light of the statutory sentencing factors, 18
U.S.C. § 3553(a), “whether, in its discretion, it will elect to impose the newly
calculated sentence under the amended guidelines or retain the original sentence.”
Bravo, 203 F.3d at 781. We will not reverse based on an error that is harmless.
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See United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). We review the
reasonableness of the sentence imposed for an abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 597 (2007).
The district court erred when it refused to modify Robinson’s sentence based
on its finding that he was responsible for more than 4.5 kilograms of cocaine base.
At Robinson’s original sentencing hearing, the district court found that Robinson’s
“offense behavior involved in excess of five hundred grams of cocaine base.” The
district court cannot later revise that finding based on its recollection of the
evidence. See Bravo, 203 F.3d at 781; United States v. Cothran, 106 F.3d 1560,
1562–63 (11th Cir. 1997).
We need not reverse the denial of Robinson’s motion because we can say
“‘with fair assurance . . . that the sentence was not substantially swayed by the
error.’” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (per
curiam) (quoting United States v. Hornaday, 392 F.3d 1306, 1315–16 (11th Cir.
2004). The district court stated that even were it “to find that [it] did have
jurisdiction to reduce [Robinson’s] offense or his sentence,” the court “would let
life remain as [Robinson’s] sentence.” The district court applied the new guideline
range of 360 months to imprisonment for life, “considered all of the factors in
section 3553(a)(1) through 7,” and explained that a sentence of life imprisonment
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was necessary to address Robinson’s recidivism, “several disciplinary problems
while he’s been incarcerated,” and future dangerousness. 18 U.S.C. § 3553(a);
Gall, 128 S. Ct. at 597. Robinson’s sentence is reasonable.
The order denying Robinson’s motion to modify his sentence is
AFFIRMED.
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