United States v. Robinson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4461
MICHAEL ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-93-24)
Submitted: April 15, 1997
Decided: April 29, 1997
Before HALL, WILKINS, and NIEMEYER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Elizabeth Dashiell Scher, MORCHOWER, LUXTON & WHALEY,
Richmond, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, N. George Metcalf, Assistant United States Attorney, Sean
P. Byrne, Student Intern, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Michael Robinson was convicted of drug and firearms
offenses, including using a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c) (1994), and this
court affirmed his convictions and sentence. See United States v.
Robinson, 1994 WL 258500 (4th Cir. June 14, 1994) (No. 93-5781)
(unpublished). Robinson subsequently filed a motion for relief pursu-
ant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) and Bailey v.
United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995)
(Nos. 94-7448, 94-7492). The district court granted Robinson's
motion as to his Bailey claim and vacated only the § 924(c) convic-
tion. During the rehearing on sentencing, however, the district court
enhanced Robinson's sentence for the remaining drug convictions
pursuant to USSG § 2D1.1* for possession of a firearm. On appeal,
Robinson challenges whether the district court can resentence a
defendant to an enhanced prison term pursuant to USSG § 2D1.1 after
he has successfully challenged his sentence in a§ 2255 motion in
which he raised a Bailey claim. Finding no error, we affirm.
This issue was recently decided against Robinson in United States
v. Hillary, 106 F.3d 1170 (4th Cir. 1997), in which this court held that
the district court had jurisdiction to resentence a defendant on a sur-
viving drug conviction after the defendant was granted relief from his
§ 924(c) conviction in light of Bailey. We had previously ruled that
resentencing was appropriate in cases where the successful Bailey
claim was raised on direct appeal. See United States v. Hawthorne, 94
F.3d 118, 122 (4th Cir. 1996). The decision in Hillary applied this
same rule to cases where the successful Bailey claim was raised in a
collateral attack.
We therefore affirm the order of the district court. Robinson's
motion to amend is denied. We dispense with oral argument because
the facts and legal contentions are adequately presented in the mate-
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
rial before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
3