United States v. Steven Robinson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4639
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN LARUE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00131-FL-1)
Argued: October 29, 2013 Decided: February 21, 2014
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer joined. Judge Diaz wrote a separate
opinion dissenting in part.
ARGUED: Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Steven Robinson challenges his 140-month sentence for
cocaine distribution, contending that the district court erred
in assigning his drug quantity and in calculating his criminal
history. For the reasons that follow, we affirm.
I.
A.
In 2010, police officers in Wilson, North Carolina,
videotaped Robinson and two others making six crack-cocaine
sales to a police informant. The Government indicted Robinson
on one count of conspiring to distribute crack cocaine from 2002
to 2011, one count of aiding and abetting the distribution of
crack cocaine, and six counts of distribution of crack cocaine.
Robinson pled guilty to three of these counts in February 2012,
but sought to proceed to trial on the remaining five counts.
His two co-conspirators pled guilty the week before Robinson’s
scheduled trial. In light of these guilty pleas, Robinson
himself pled guilty to the remaining five counts on April 30,
2012, the day on which his trial had been scheduled.
B.
A presentence investigation report (PSR) drafted by a
probation officer calculated Robinson’s base offense level in
light of the quantity of crack cocaine attributable to him.
2
Although the counts to which Robinson pled guilty specify only
that the crime involved “50 grams or more” of crack cocaine, the
Sentencing Guidelines require judges to consider all drug sales
made by the defendant during the conspiracy -- including drug
sales not covered by the counts of conviction. U.S.S.G. § 2D1.1
cmt.5.
In Robinson’s case, the probation officer concluded that,
between 2002 and 2011, Robinson sold far more crack cocaine than
was implicated by the six sales the police captured on tape. In
arriving at this conclusion, the probation officer relied on
statements made to the police by Melvin Battle, who claimed to
have purchased drugs from Robinson regularly from 2000 through
2008. Taking the low end of Battle’s estimates, the probation
officer estimated that Robinson sold Battle 1.43 kilograms of
crack cocaine. This estimate, combined with the drug quantity
covered by the counts of conviction, translated to a drug
quantity calculation of 1.47 kilograms of crack cocaine, which
produced a base offense level of 34. From this base offense
level, the probation officer recommended a 3-level reduction for
acceptance of responsibility, resulting in a recommended offense
level of 31.
The PSR also contained a calculation of Robinson’s criminal
history category. The probation officer assigned Robinson one
criminal history point based on a 2003 conviction for marijuana
3
possession, and another point based on a 2009 conviction for
resisting arrest and carrying a concealed weapon. The probation
officer added two more points under Section 4A1.1(d) of the
Sentencing Guidelines, which provides for an enhancement if the
defendant committed the crime of conviction while on probation.
The probation officer reasoned that Robinson had been given a
one-day sentence of probation because of his 2003 marijuana
conviction, and that this term coincided with the ongoing drug
conspiracy. These four criminal history points produced a
criminal history category of III.
Based on a criminal history category of III and an offense
level of 31, the recommended Guidelines range in the PSR totaled
135-168 months imprisonment.
C.
At sentencing, Robinson objected both to the calculation of
drug quantity and the calculation of criminal history.
i.
Robinson’s challenge to his drug quantity rested on the
PSR’s reliance on the statement provided by Melvin Battle.
Given the opportunity to address the court directly, Robinson
pointed out that, before attributing 1.43 kilograms of crack to
Robinson, Battle had in an earlier interview stated that
Robinson sold him 6 kilograms of the drug. Robinson also argued
that Battle’s claim to have bought PCP cigarettes from Robinson
4
in North Carolina from 2005 to 2008 was false because Robinson
was enrolled in culinary school in Florida during most of that
period. Contending that he never sold drugs to Battle, Robinson
insisted that Battle was “blatantly lying” to curry favor with
prosecutors.
In response, the Government conceded that Battle revised
his statement to render his second drug-quantity estimate
significantly lower than his first. But the Government argued
that “it is not unusual for Defendants to estimate differently”
when interviewed on two separate occasions. According to the
Government, Battle’s second statement merely provided a more
conservative and reliable estimate than the first. With respect
to the PCP cigarettes Battle claimed to have bought when
Robinson was in Florida, the Government emphasized that these
sales did not figure into the PSR drug-quantity assignment.
The Government further defended the drug-quantity
calculation by explaining that, notwithstanding the asserted
deficiencies in Battle’s statement, three other witnesses were
prepared to state that Robinson sold them drugs during the
conspiracy timeframe. Although these statements did not “make
their way” to the probation office, the Government maintained
that these accounts would put Robinson “in at least the position
he’s in with Mr. Battle’s statement, if not in a worse
position.”
5
Upon consideration of the parties’ arguments, the district
court presented Robinson with a choice:
We’ll do it one of two ways. We’re going to go
forward today with what’s here and now, and I’ll make
the decisions that I need to make by a preponderance
of the evidence. Or I’ll unwind the whole thing.
I’ll start the PSR process all over. If there are
statements that didn’t, for whatever reason, make it
to the Probation Office, [I’ll] start again. And,
whatever happens, happens. And then, you’ll have a
chance to object. . . . That’s the only way I see --
those are the only two choices.
Robinson responded by reiterating that Battle’s statement was
not credible. But, after the court again asked him whether he
would prefer to proceed on the basis of Battle’s statement or
delay sentencing for three months to allow the parties ample
time to obtain more information, Robinson responded that “I
would rather go ahead and do it now, Your Honor.”
The Government further explained the basis of the drug
quantity calculation set forth in the PSR and why this
calculation would have been higher if the PSR had included
statements of other witnesses. Robinson then addressed the
court, contending that he “wasn’t an everyday drug dealer” and
that any witnesses saying to the contrary were lying. After the
court reviewed the counts to which Robinson pled guilty, it
concluded that, with respect to the relevant conduct informing
his drug quantity calculation, Robinson “really ha[d] gotten a
break [because of] the way the Probation Office calculated the
6
amount of crack cocaine.” The court stated that it “had heard
enough to conclude that the calculations in the [PSR were]
credible and reliable,” and that they could be used in
calculating Robinson’s offense level, but it again reiterated
that it was willing to “open this all back up” if Robinson were
so inclined. Robinson did not take the court up on its offer.
ii.
Robinson also objected to the PSR’s assignment of two
criminal history points on the basis of his sentence of one day
probation for the 2003 marijuana conviction. He argued that he
had spent the entire day of probation en route from the Maryland
courthouse, and so could not have sold drugs on that day. The
court rejected this argument and imposed a two-point adjustment,
concluding that the Sentencing Guidelines required this result.
This adjustment increased Robinson’s guidelines range from 121-
151 months to 135-168 months. The court sentenced Robinson to
140 months imprisonment -- a sentence the court noted was “well
within” both ranges.
Robinson appeals, asserting that the district court
procedurally erred in calculating his drug quantity and criminal
history. 1
1
Robinson’s alternative argument that his military service,
mental health issues, and work history render his within-
Guidelines sentence substantively unreasonable is meritless.
7
II.
With respect to drug quantity, Robinson contends that the
district court committed plain error by relying on Battle’s
statement in the PSR. Robinson, however, has waived this
contention. When he made the conscious choice at sentencing to
proceed on the basis of the information contained in the PSR,
including Battle’s statement, Robinson waived his right to
appeal the district court’s reliance on that information.
A “waiver is the intentional relinquishment or abandonment
of a known right.” Wood v. Milyard, 132 S. Ct. 1826, 1835
(2012) (quotation marks omitted). Waiver is to be distinguished
from “forfeiture,” which is “the failure to make the timely
assertion of a right.” Kontrick v. Ryan, 540 U.S. 443, 458,
n.13 (2004). Courts may review a forfeited claim for plain
error. United States v. Olano, 507 U.S. 725, 731 (1993). 2 But
when a claim is waived, it is not reviewable on appeal, even for
plain error. Id. Rather, a valid waiver means that there was
“no error at all.” United States v. Keeter, 130 F.3d 297, 300
(7th Cir. 1997). The case at hand is one of waiver, not
forfeiture. “A party who identifies an issue, and then
2
Under plain error review, the challenging party must show
that (1) there was an “error” (2) the error was “plain”, (3) the
error “affect[s] substantial rights,” and (4) the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732).
8
explicitly withdraws it, has waived the issue.” United States
v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
Here, Robinson raised an objection to his drug-quantity
calculation by challenging the credibility and reliability of
the testimony on which the PSR relied. The Government countered
this objection by stating that other witnesses were available to
corroborate (or augment) the drug-quantity calculation. The
district court could have unilaterally chosen to grant a
continuance. See United States v. Johnson, 732 F.2d 379, 381
(4th Cir. 1984). But, perhaps because doing so might have led
to Robinson receiving a higher sentence, the court instead
provided Robinson with a choice: (1) postponement of sentencing
to allow the parties to produce new evidence as to the proper
drug quantity, or (2) proceeding to sentencing based on the
evidence before the court.
When presented with this choice, Robinson unequivocally
stated that he “would rather go ahead and do it now.”
Furthermore, he adhered to this position when the district court
gave him an opportunity to change his mind. Thus, Robinson
consciously abandoned his objection to the drug quantity
calculation in the PSR and instead opted to proceed to
sentencing based on the information in the PSR. This was
waiver.
9
Whether the waiver was valid is a matter of law that we
review de novo. United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992). Criminal defendants may waive statutory or
constitutional rights -- including the right to challenge a
particular ruling on appeal -- if the waiver is knowing and
voluntary. Id. Examination of the totality of the
circumstances determines whether a waiver is knowing and
voluntary. United States v. Farrell, 393 F.3d 498, 500 (4th
Cir. 2005).
In this case, the record reveals that the defendant,
Robinson, knew exactly what he was relinquishing. The district
court explicitly and repeatedly explained that, by choosing to
proceed with sentencing, Robinson was agreeing that his drug
quantity would be calculated on the basis of the PSR, which
relied on Battle’s statement. On three separate occasions, the
court presented Robinson with the choice of postponing
sentencing to supplement the record or proceeding with
sentencing based on the information in the PSR. Robinson
consistently adhered to his preference to proceed with
sentencing without supplementing the record.
Nothing in the record suggests that Robinson -- who had
graduated from high school, attended community college, and
attained an associate degree in culinary arts -- did not
understand this choice. Indeed Robinson does not even contend
10
that he did not understand this choice. Thus, his waiver was
knowing and voluntary. 3
Robinson’s decision to proceed on the basis of the existing
PSR is akin to a defendant’s decision to proceed with a bench
trial rather than a jury trial -- quintessentially an
enforceable waiver. See United States v. Boynes, 515 F.3d 284,
287 (4th Cir. 2008). Having made a choice at sentencing,
Robinson cannot now contend that the district court erred by
honoring that choice. He has waived the argument. 4
3
The dissent asserts that “the district court did not make
a finding on the reliability of Battle’s statements until after
it presented Robinson with his choice,” and that Robinson
“rel[ied] on the court’s representation that it would apply the
evidentiary standard” when he chose to proceed. The dissent
thus concludes that Robinson waived at most “the opportunity for
a 90-day delay.” This argument, which Robinson himself has
never made, fails. First, it fails to consider the record in
its entirety. In the very same four-sentence paragraph in which
the court made its reliability finding, it again reiterated its
willingness to “open this all back up.” Given Robinson’s
extensive argument on his own behalf (including his not
infrequent interruptions of the district court), he surely would
not have hesitated to withdraw his waiver if he wished to, but
he did not. Moreover, the dissent’s proposed holding would
permit Robinson to impeach (by unsworn argument) Battle’s
statement, while at the same time preventing admission of new
evidence to supplement the record. In short, the dissent would
permit Robinson to have his cake and eat it too. Moreover, the
dissent’s approach would counsel sentencing courts to act
unilaterally without offering defendants a choice, and would
thus undermine the very interests the dissent aims to protect.
4
The Government’s contention that Robinson “invited” error
by the district court thus misses the mark. Robinson did not
“ask[]” the court to rely on Battle’s statement and then
complain on appeal that this reliance was improper. See United
(Continued)
11
We note that this conclusion accords with the holdings of
the Supreme Court and our sister circuits in similar
circumstances. See Wood, 132 S. Ct. at 1835 (holding that the
State waived a defense where, “after expressing its clear and
accurate understanding” of the defense, the State “deliberately
steered the district court away” from it); United States v.
Guzman, 707 F.3d 938, 941, n.2 (8th Cir. 2013) (holding that
defendant waived claim that Government breached plea agreement
at sentencing by withdrawing pro se motion to withdraw guilty
plea prior to sentencing); Rodriguez, 311 F.3d at 437 (holding
that defendant “consciously waived” his objection to information
in the PSR by raising, and then withdrawing, the objection prior
to sentencing); Keeter, 130 F.3d at 300 (holding that defendant
waived an objection by rejecting the court’s offer to postpone a
sentencing hearing and opting instead to proceed without delay). 5
States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994). Rather,
after initially objecting to the use of Battle’s statement,
Robinson expressly waived any objection to it. Accordingly,
rather than committing “invited error,” the district court
committed “no error at all.” Keeter, 130 F.3d at 300.
5
Although not determinative here, given Robinson’s waiver,
we note that he mistakenly asserts that United States v.
Solomon, 274 F.3d 825 (4th Cir. 2001) establishes that when a
defendant disputes the drug quantity calculations in the PSR,
the PSR provides “no evidentiary basis” for that calculation.
Appellant’s Br. at 13. Solomon does not so hold. Solomon
merely holds that a probation officer’s calculation in a PSR
“standing alone” (that is, without the identification of
(Continued)
12
III.
Robinson also asserts that the district court committed two
errors in calculating his criminal history.
A.
He first contends that the court erred in treating his 2003
marijuana conviction as yielding a “prior sentence” rather than
as “relevant conduct” with respect to his current sentence.
Whether a crime constitutes “relevant conduct” under the
Guidelines is a factual question we review for clear error.
United States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004). If
the district court’s finding “is plausible in light of the
record viewed in its entirety,” we will not reverse it simply
because “we would have decided the fact differently.” United
States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (citation
and quotation marks omitted).
In calculating a defendant’s offense level, a sentencing
court must consider all “relevant conduct” surrounding the
offense. U.S.S.G. § 1B1.3. Relevant conduct encompasses acts
“that occurred during the commission of the offense of
conviction [or] in preparation for that offense,” including
conduct resulting in a separate criminal conviction. Id.
supporting evidence of any kind) “does not constitute a finding
of fact” on which a sentencing court can rely. Id. at 828, n.3.
13
§ 1B1.3(a)(1). The Guidelines include as relevant conduct “all
quantities of contraband” the defendant sold during a
conspiracy. Id. § 1B1.3(a)(1) cmt.2(b).
In addition to establishing the defendant’s offense level
in light of all relevant conduct, a sentencing court must
separately calculate the defendant’s criminal history score
based in part on his “prior sentence[s].” Id. § 4A1.1. The
Guidelines exclude from the definition of “prior sentences” any
sentence resulting from conduct that constitutes “relevant
conduct” to the current offense. Id. § 4A1.2 cmt.1. Thus, if
an offense qualifies as relevant conduct for offense-level
purposes, it cannot also yield a prior sentence for criminal-
history purposes.
Robinson pled guilty to conspiring to sell cocaine from
2002 to 2011. He had previously been found guilty of and
sentenced for marijuana possession in 2003. He contends that
the 2003 marijuana conviction and sentence constituted “relevant
conduct” to his drug conspiracy rather than yielding a “prior
sentence.” He therefore objects to the inclusion of the
marijuana sentence in his criminal history score. 6
6
Although he did not make this precise argument before the
district court, Robinson did challenge his criminal history
score, and thus preserved his claim. See Yee v. City of
Escondido, 503 U.S. 519, 534 (1992) (“Once a federal claim is
properly presented, a party can make any argument in support of
(Continued)
14
The district court did not clearly err by treating
Robinson’s 2003 marijuana sentence as a prior sentence rather
than relevant conduct. The 2003 sentence was for marijuana
possession, while the ongoing conspiracy involved the crack
cocaine distribution -- suggesting two distinct crimes.
Moreover, the 2003 sentence was for simple possession rather
than distribution -- suggesting that the marijuana was for
personal use and played no role in a drug-dealing conspiracy.
The fact that an unrelated drug conviction and sentence occur
during the timeframe of a drug conspiracy does not automatically
convert them into relevant conduct of the conspiracy. See
U.S.S.G § 4A1.2 cmt.1 (“A sentence imposed after the defendant’s
commencement of the instant offense, but prior to sentencing on
the instant offense, is a prior sentence if it was for conduct
other than conduct that was part of the instant offense.”
(emphasis added)). The district court’s finding is thus
“plausible in light of the record viewed in its entirety” and is
entitled to our deference. Stevenson, 396 F.3d at 542.
B.
Robinson also contends that the district court erred by
adding two points to his criminal history score because he
that claim; parties are not limited to the precise arguments
they made below.”).
15
participated in the drug conspiracy while on probation. We
review de novo a trial court’s legal interpretation of the
Guidelines. United States v. Wessells, 936 F.2d 165, 168 (4th
Cir. 1991).
The Sentencing Guidelines require a two-point upward
adjustment “if the defendant committed the instant offense while
under any criminal justice sentence, including probation [or]
parole.” U.S.S.G. § 4A1.1(d). An application note to this
provision clarifies that a two-point adjustment is warranted if
the defendant committed “any part of the instant offense” while
on probation. Id. § 4A1.1 cmt.4. Under the plain language of
this provision, an enhancement must be imposed if any part of
the defendant’s crime coincides with a term of probation. See
United States v. Hernandez, 541 F.3d 422, 424 (1st Cir. 2008)
(affirming a two-point adjustment where the defendant was
sentenced to probation midway through a heroin-delivery
conspiracy even though he never actually delivered heroin during
the probation term). If a sentencing court concludes that a
two-point adjustment is too harsh given the minor nature of the
offense giving rise to probation, the proper course is to apply
the enhancement and then depart downward. United States v.
Kimberlin, 18 F.3d 1156, 1160-61 (4th Cir. 1994).
Robinson argues that he was in transit on the day of his
probation in 2003 and that he could not have sold crack cocaine
16
on that day. But even assuming Robinson did not sell cocaine
during his 24 hours of probation, the two-point adjustment was
proper. Given the plain language of the Guidelines, even a
short period of probation imposed during an ongoing conspiracy
triggers an enhancement under § 4A1.1(d). Robinson’s “instant
offense” was a drug-dealing conspiracy that spanned from 2002 to
2011. Because this timeframe included Robinson’s day of
probation in 2003, the enhancement was proper. We note further
that the district court, conscious of the minor nature of the
marijuana offense, imposed a sentence that was “well within”
both the Guidelines range including and the Guidelines range
excluding this two-point adjustment.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
17
DIAZ, Circuit Judge, dissenting in part:
I agree with my colleagues that Robinson freely chose to
proceed with his sentencing hearing. But because we part ways
as to what, precisely, that choice entailed, I respectfully
dissent from Part II of the majority opinion.
I.
The majority apparently believes that Robinson’s “waiver”
encompassed his right to challenge the sufficiency of the
evidence supporting the drug weight for which he was held
accountable. I cannot agree with this overly broad reading.
Before the district court, Robinson objected vigorously to
the PSR’s drug weight calculation, focusing particularly on
Battle’s credibility. See J.A. 119, 121, 123–126, 132, 135–36,
141–43, 152. After the court expressed concern about Battle’s
statements, the government explained that it could call
additional witnesses who would prove an even higher drug weight.
But neither Battle nor those additional witnesses were available
to testify that day. The court presented Robinson with two
options 1:
We’ll do it one of two ways. We’re going to go
forward today with what’s here and now, and I’ll make
1
At this point, Robinson was speaking for himself, rather
than through counsel. The district court continued to address
Robinson directly for the remainder of the hearing.
18
the decisions that I need to make by a preponderance
of the evidence. Or I’ll unwind the whole thing.
I’ll start the PSR process all over. If there are
statements that didn’t for whatever reason, make it to
the Probation Office, start again. And, whatever
happens, happens. And then, you’ll have a chance to
object. And then I’ll, you know, in three months
time, see you. And we’ll see what the Pre-Sentence
Report looks like, and I’ll make the decisions that I
need to make. That’s the only way that I see -- those
are the only two choices.
J.A. 131–32 (emphasis added). After Robinson intimated his
concern for the court’s resources, the choice was presented
again: “I’ll consider all of the information that either side
wishes to present to me now, or we’ll start all over and I’ll
take the case up in 90 days.” J.A. 133.
It is true that Robinson chose to “go ahead and do it now.”
J.A. 133. My colleagues say that “[t]he district court
explicitly and repeatedly explained that, by choosing to proceed
with sentencing, Robinson was agreeing that his drug quantity
would be calculated on the basis of the PSR, which relied on
Battle’s statement.” Maj. Op. at 10. But this is only part of
the story. The district court also “explicitly . . . explained”
that the court would consider the evidence before it and apply
the appropriate evidentiary burden. Indeed, the district court
did not make a finding on the reliability of Battle’s statements
until after it presented Robinson with his choice. Compare J.A.
131–32, with J.A. 143–44.
19
To be quite clear: the district court gave Robinson a
choice of proceeding with the appropriate evidentiary standard
or starting the process over. Robinson continued to object to
Battle’s credibility and noted that he did not “want to keep
causing The Court [sic] more time and money.” J.A. 133. The
district court reiterated the two options. And Robinson elected
to “go ahead and do it now.” J.A. 133.
Later, after the court had proceeded with the sentencing
hearing and heard further argument about the drug weight
calculation, the district court seemed satisfied that it had
heard enough. In the midst of a fairly lengthy discourse, the
court stated, “[I]f you’re inclined to want to open this all
back up, I will open it all back up. But I think I have heard
enough to know that the calculations in the [PSR] are credible
and reliable, and that I may rely on those in determining the
advice of the Guidelines.” J.A. 143–44. The court then went on
for two more paragraphs, assigning Robinson’s base offense level
and moving on to mitigating circumstances.
The majority opines that “[w]hen presented with [his]
choice, Robinson unequivocally stated” his desire to proceed.
Maj. Op. at 9–10. As I understand it, this “unequivocal
statement,” rather than Robinson’s later silence in response to
a non-question, is what the majority believes to constitute
waiver. Indeed, the majority explicitly notes that when the
20
district court made its finding on reliability, Robinson “would
not have hesitated to withdraw his waiver if he wished to.”
Maj. Op. at 11 n.3. Thus, the “waiver” the majority touts did
in fact precede any findings on credibility. It is difficult to
understand how the scope of that affirmative “waiver”--a waiver
relying on the court’s representation that it would apply the
evidentiary standard--would change simply because Robinson did
not immediately object to a finding made much later in the
hearing. On this record, I cannot agree that Robinson waived
his right to contest the sufficiency of the district court's
finding as to drug weight--a finding that had yet to occur when
he chose to proceed. 2 If he waived anything at all, it was the
opportunity for a 90-day delay.
2
The cases on which the majority relies are inapposite. In
United States v. Keeter, for example, the defendant explicitly
chose to proceed with sentencing with his current attorney; he
argued on appeal that he should not have been represented by an
unprepared lawyer. See 130 F.3d 297, 300 (7th Cir. 1997).
Thus, unlike the court today, the Seventh Circuit held Keeter to
a choice he actually made. The other cases cited by the
majority similarly fail to apply here, as Robinson forcefully
contested Battle’s credibility. Cf. Wood v. Milyard, 132 S. Ct.
1826, 1835 (2012) (finding waiver where the state “deliberately
steered” the court away from the pertinent question); United
States v. Guzman, 707 F.3d 938, 941 n.2 (8th Cir. 2013) (finding
waiver where defendant withdrew his motion and also signed a
consent form admitting his acceptance of the purpose and effect
of that withdrawal); United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (“[H]e then deliberately withdrew his
objection.”).
21
II.
Because Robinson did not waive his objection to the
sufficiency of the evidence, the district court remained duty-
bound to apply the appropriate standard. “[T]he government
bears the burden of proving by a preponderance of the evidence
that quantity of drugs for which a defendant should be held
accountable at sentencing . . . .” United States v. Milam, 443
F.3d 382, 386 (4th Cir. 2006). The paltry evidence the
government offered cannot suffice.
Battle’s “evidence” is a sorry mess. In a 2010 statement,
Battle accused Robinson of providing six kilograms of cocaine
base; in 2012, less than two kilograms. See J.A. 124–25, 176.
The government conceded that the statements differed
“significantly,” J.A. 139, yet somehow contends that they are
“not inconsistent,” J.A. 128. Of greater concern is Battle’s
statement that he regularly purchased PCP cigarettes from
Robinson in North Carolina between 2005 and 2008. This defies
common sense: as the PSR explains, Robinson lived in Florida for
much of that time. J.A. 181–82. The district court excused
this discrepancy, noting that those PCP cigarettes were not
included in the drug weight calculation.
But such a rationale sidesteps the real issue: by lying
about the PCP cigarettes, Battle has shown himself unworthy of
belief. And because the government declined to put either
22
Battle or the probation officer who interviewed him on the
stand, the court had no opportunity to assess his credibility in
any other light. 3 Simply put, what little the government
presented to support the drug weight calculation cannot
constitute a preponderance of the evidence.
The government’s proffer of other witnesses--witnesses
never presented to the probation officer, much less the court--
hardly redresses the lack of evidence. “Testifying about facts
is the function of the witness, not of the lawyer.” Kalina v.
Fletcher, 522 U.S. 118, 130 (1997); see also Int’l Woodworkers
v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1273 (4th Cir.
1981) (“The roles of witness and advocate are fundamentally
inconsistent . . . .”). A prosecutor’s mere proffer of evidence
provides “no evidence from the sentencing hearings . . . to
review.” United States v. Lawrence, 47 F.3d 1559, 1568 (11th
Cir. 1995). Thus, these extraneous statements cannot help the
government surmount its burden.
I am mindful that factual determinations of credibility
generally remain the province of the district court. But “[i]t
is the opportunity to hear the witness testify and observe his
manner and demeanor on the stand which places the district court
3
The district court commented that Robinson “could have
called [Battle] to the stand, at this hearing.” J.A. 132. But
such a statement misconstrues the burden, which properly
belonged to the government.
23
in a better position to judge credibility than that of an
appellate court which must rely on a cold paper record.”
Phillips v. Crown Cent. Petroleum Corp., 602 F.2d 616, 636 (4th
Cir. 1979) (Widener, J., concurring and dissenting). Here, the
district court itself relied on a cold paper record--one riddled
with contradictions. Such dubious findings are not “so
sacrosanct as to evade review.” Jiminez v. Mary Washington
Coll., 57 F.3d 369, 379 (4th Cir. 1995).
III.
The majority declares that Robinson made a considered
decision and should have to live with the consequences. But
that rationale upends the equities--and, indeed, facts--of the
case before us. It is not Robinson who seeks a mulligan, but
the government.
When Robinson objected to the PSR--before the hearing--the
government was put on notice that its “evidence” was suspect.
Yet it did not produce Battle. Nor did it produce the probation
officer who interviewed Battle. And it had never even submitted
the other witnesses’ statements to the probation officer in the
first place. Despite its lack of preparation, the government
was presented--as the majority sees it--with a win-win scenario:
either it would have a second chance to do the job right
(securing an even longer sentence), or it would get a pass on
24
the evidentiary standard. “In this case, the district court did
not ensure--as it was obligated to--that the Government carried
its burden of proof.” Lawrence, 47 F.3d at 1568.
Thus, I would vacate and remand with instructions that the
district court resentence Robinson on the record--but without
crediting Battle’s statements as to drug weight. Any other
result would grant the government the very benefit--a second
chance to present evidence--that it does not merit. See, e.g.,
United States v. Archer, 671 F.3d 149, 168 (2d Cir. 2011) (“The
consensus among our sister circuits is that generally where the
government knew of its obligation to present evidence and failed
to do so, it may not enter new evidence on remand.”); United
States v. Otey, 259 F. App’x 901, 903 (8th Cir. 2008) (“[T]he
Government had sufficient notice of Otey’s factual objection to
the loss amount that it should not be afforded a second
opportunity to present additional evidence on this issue.”).
The majority prefers to hold Robinson to a bargain he never
made. For this reason, I respectfully dissent from Part II of
the majority opinion.
25