12 F.3d 1110 (9th Cir. 1993), 92-10408, U.S. v. Robinson

• Date: 18 November 1993
• Citation: 12 F.3d 1110
• Docket Number: 92-10408.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin L. ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1110

12 F.3d 1110 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Calvin L. ROBINSON, Defendant-Appellant.

No. 92-10408.

United States Court of Appeals, Ninth Circuit

November 18, 1993

Submitted August 24, 1993. ^[*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Northern District of California, No. CR-88-0336-JPV; J.P. Vukasian, Jr., District Judge, Presiding.

N.D.Cal. [APPEAL AFTER REMAND FROM 913 F.2D 712].

AFFIRMED.

Before: GOODWIN, SNEED, and NOONAN, Circuit Judges.

MEMORANDUM ^[**]

Calvin L. Robinson was convicted of various drug offenses following a jury trial at which he elected to proceed pro se. We affirmed this conviction in 913 F.2d 721 (9th Cir.1990), cert. denied, 498 U.S. 1104 (1991), but remanded to the district court for resentencing with court-appointed counsel present. Robinson now appeals his sentence. We affirm.

Robinson's conviction arose from his attempt to import forty-three tons of hashish and thirteen tons of marijuana into this country by sea. ¹ As part of this smuggling operation, he modified a sea-going barge so that it could carry hashish and marijuana in secret compartments. With the help of a crew of various family members, including his son, stepson and nephews, he captained this barge by tugboat into San Francisco Bay. The cargo of marijuana and hashish found aboard his barge had an estimated wholesale value in excess of $54,000,000.00. Because of the quantity of contraband involved, Robinson's role as the managing person in the conspiracy, and Robinson's extensive criminal record, the District Court sentenced him to life in prison and a fine of $4,000,000. We find this sentence satisfies both relevant guidelines and the controlling statutes and was within the trial court's discretion.

I. Upward Adjustment for Being a Leader of a Criminal Enterprise Consisting of Five or More Participants

Robinson first contends that he should not have received an upward adjustment of four levels under Section 3B1.1(a) of the Sentencing Guidelines for being an "organizer or leader of a criminal activity that involved five or more participants." He claims the court erred in finding he was the leader of five or more participants in a criminal activity because the four family members who worked aboard the vessel were acquitted in separate trials. ²

We find there was no error in awarding this four-level adjustment. In this circuit, a defendant can be found to have been a leader of a criminal enterprise including five or more participants even if the alleged participants were not themselves convicted. See U.S.S.G. § 3B1.1, Application Note 1 (providing that a "participant" is a "person who is criminally responsible for the commission of the offense, but need not have been convicted"); United States v. Helmy, 951 F.2d 988, 997 n. 7 (9th Cir.1991), cert. denied 504 U.S. 945, 112 S.Ct. 2287 (1992). The government bears the burden of proving facts sufficient to support an upward adjustment by a preponderance of the evidence. United States v. Restrepo, 946 F.2d 654 (9th Cir.1990) cert. denied 112 S.Ct. 1564 (1992) (holding this standard satisfies due process); United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990) (same).

In Robinson's case, the trial court had before it evidence of participation by numerous persons, including the family members who made up the crew of the tug and barge. While a jury found a reasonable doubt existed as to the crew's knowledge of Robinson's smuggling operation, the court could nonetheless have found that the government established their guilt under a preponderance standard. Physical evidence linked the crew members to the contraband; they were likely present when it was loaded into the barge's secret compartments.

In addition, there was evidence that other persons had helped prepare the barge and its hidden compartments. Other family members helped Robinson purchase and conceal the barge and tugboat, and someone helped him load some 56 tons of contraband at sea. Robinson's two sisters made numerous deposits totalling over a million dollars to Robinson's account and pled guilty to money laundering charges arising out of these transactions. Finally, there was evidence that Robinson had previously imported an additional 30 tons of contraband but escaped prosecution. Taken together, this evidence of the size and scope of Robinson's enterprise was more than adequate to support the four-level upward departure.

II. Criminal History

Robinson also objects to the District Court's use of his criminal history in sentencing. He asserts constitutional defects in some of his prior sentences and argues that the government failed to produce sufficient evidence that he served time for other convictions within fifteen years of the instant offense. However, once the government proves the fact of a prior conviction, the court may consider such conviction in sentencing unless the defendant proves by a preponderance of the evidence that his conviction was constitutionally invalid. United States v. Newman, 912 F.2d 1119, 1122 (9th Cir.1990) (interpreting U.S.S.G. § 4A1.2, Application Note 6). The defendant has not met this burden.

For example, with regard to his earlier conviction for receiving stolen property, Robinson claims (1) that there was insufficient evidence to show he was serving a sentence for that offense within the previous fifteen years and (2) that his attorney had a conflict of interest rendering his assistance ineffective. Yet, the government presented certified prison records showing Robinson was released from prison less than fifteen years before the instant offense. Robinson did not object to these records when they were submitted and has not produced any evidence to refute them. Nothing in the record suggests that they are inaccurate. Similarly, in response to Robinson's ineffective assistance claim, the government produced a sworn affidavit from his former attorney denying any such conflict existed. The attorney denied ever representing or speaking to the person in question. While Robinson claims this person told him of the conflict, he has failed to produce an affidavit or any evidence supporting this claim. The district court correctly considered this conviction. See United States v. McDougherty, 920 F.2d 569, 575 (9th Cir.1990) (finding that the demands of due process were met where the government established the defendant's prior convictions by submitting copies of his conviction records and the defendant did not contest the fact of conviction).

Robinson also claims that the sentencing judge in two 1976 counterfeiting convictions failed to advise him of his rights in accordance with Boykin v. Alabama, 395 U.S. 238 (1969) and Fed.R.Crim.P. 11. According to Robinson, the United States District judge who took his guilty plea did not question him, and he did not personally enter his plea or waive his rights. Since the reporter's notes for both alleged pleas are unavailable, he claims that the record is "silent" as to the constitutionality of his plea and that this court must reverse under Boykin, 395 U.S. at 243 (the court...