U.S.A. v. Robinson IV

• Decision Date: 03 May 2001
• Docket Number: No. 99-4071,99-4071
• Citation: 250 F.3d 527
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES R. ROBINSON IV, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 527

250 F.3d 527 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES R. ROBINSON IV, Defendant-Appellant.

No. 99-4071

In the United States Court of Appeals For the Seventh Circuit

Submitted January 26, 2001

DECIDED May 3, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 97 CR 30025--Richard Mills, Judge.

On Remand From The United States Supreme Court

Before BAUER, RIPPLE, and EVANS, Circuit Judges.

On Remand From The United States Supreme Court.

EVANS, Circuit Judge.

On direct appeal, we affirmed Charles Robinson's cocaine convictions but vacated his sentences, reasoning that the police reports relied on by the ditrict court to calculate the vast majority of his relevant conduct lacked sufficient indicia of reliability. See United States v. Robinson, 164 F.3d 1068, 1071 (7th Cir. 1999). After the district court resentenced Robinson, we rejected Robinson's new appeal and affirmed the amended judgment in an unpublished order. See United States v. Robinson, No. 99-4071, 2000 WL 689182 (7th Cir. 2000). Subsequently, the Supreme Court granted Robinson's petition for certiorari, vacated our judgment, and returned the case to us for further consideration in light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). See Robinson v. United States, 121 S. Ct. 559 (2000). Both Robinson and the United States have submitted statements pursuant to Circuit Rule 54 indicating their position as to the action we should take on remand.

Because Robinson did not raise an Apprendi claim either time that he was sentenced, our review is only for plain error. United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000). This means we must determine (1) whether there was error at all, (2) if so, whether it was plain, (3) whether the error affected Robinson's substantial rights, and (4) whether it seriously affected the fairness, integrity, or public reputation of the proceedings. Johnson v. United States, 520 U.S. 461, 466-67 (1997). As with most unpreserved Apprendi claims presented to this court, Robinson fails to establish the fourth prong of the plain-error test. For the sake of completeness, however, we will briefly address the other prongs of the test.

In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S. Ct. at 2362-63. The implication of Apprendi for defendants charged with drug offenses under 21 U.S.C. sec. 841(a) is that they may not be subjected to a statutorily enhanced sentence based on drug type and quantity, as provided in sec. 841(b), without those elements being charged in the indictment and proven beyond a reasonable doubt. Nance, 236 F.3d at 824 (collecting cases). However, when a defendant's sentence does not exceed 20 years imprisonment--the maximum under sec. 841(b) for possessing/distributing the smallest amount of cocaine--Apprendi is irrelevant. Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000); accord United States v. Jones, 245 F.3d 645, 648-49(7th Cir.2001); United States v. Huerta, 239 F.3d 865, 876 (7th Cir. 2001).

In this case Robinson was convicted of (1) possession of both powder and crack cocaine with intent to distribute, (2) distribution of crack, and (3) possession of crack with intent to distribute. The district court sentenced him to consecutive prison terms of 40, 20, and 40 years, respectively. The distribution sentence does not exceed 20 years, so it drops from the analysis. Talbott, 226 F.3d at 869. And since both of the remaining counts alleged explicitly that Robinson possessed quantities of crack greater than five grams, the indictment satisfies the requirement that the type and quantity of drugs necessary to trigger a statutory enhancement--in this case 40 years pursuant to 21 U.S.C. sec. 841(b) (1)(B)(iii)--be charged in the indictment. But, because the issue of drug quantity was not submitted to the jury, the district court erred when it sentenced Robinson to 40 years on each of the possession convictions. Nance, 236 F.3d at 825. Moreover, Apprendi makes it apparent that these errors were plain. United States v. Patterson, 241 F.3d 912, 913 (7th Cir. 2001); United States v. Jackson, 236 F.3d 886, 888 (7th Cir. 2001). Also, because the errors increased Robinson's sentences by 20 years, there is no question that the errors affected his substantial rights. See United States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001) (7-year increase affects defendant's substantial rights); Nance, 236 F.3d at 826 (22-month increase). So Robinson's case easily meets the first three prongs of the plain-error test.

To be entitled to a new sentencing hearing, however, Robinson must also establish that the sentencing errors seriously affected the fairness, integrity, or public reputation of the judicial proceedings. When applying this test to Apprendi cases, we ask whether "it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Nance, 236 F.3d at 825 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). In practical terms, we analyze whether there was overwhelming evidence that with respect to each 40-year count Robinson possessed more than five grams of crack. See Patterson, 241 F.3d at 914; Mietus, 237 F.3d at 875; Jackson, 236 F.3d at 888. In this case the police arrested Robinson twice, each time recovering quantities of crack that exceeded five grams. These arrests underlie the two 40- year sentences. As we will explain, as to each 40-year count, the government's evidence of drug quantity was overwhelming.

Regarding the first arrest, Officers Jerry Castles and Jeremy Woolridge testified that they separately responded to a call relaying a Steak 'N Shake security guard's report of a man at the drive-thru with an open bottle of beerbetween his legs as he sat in his car. Castles identified Robinson as the driver and arrested him. Robinson's car was searched, and Castles testified that in addition to drug paraphernalia, he uncovered an off-white chunky substance. Woolridge testified that he assisted in the search and discovered a plastic baggy containing a white powdery chunky substance. Castles then drove Robinson to the police station. After he was processed, Officer Joseph Pisarek transported Robinson to the county jail. Pisarek testified that when they arrived at the jail he searched Robinson and discovered a small, white, rock-like substance. The next morning, Officer Michael Pennington searched Robinson's impounded car. Pennington testified that his search uncovered a brown pill bottle containing what appeared to be crack.

State forensic scientist Michael Cravens testified that these seized items were 2/10 of a gram of crack, 4/10 of a gram of crack, 27.6 grams of cocaine, and 16.2 grams of crack. Robinson did not contest on cross-examination the recovery, nature, or quantity of these seized items, nor did he submit any evidence of his own disputing these facts. Rather, his trial strategy was to argue that he possessed the drugs for personal consumption, not distribution. The jury obviously rejected this defense.

Regarding the second arrest, Officer Dennis Baird testified that he responded to a Super 8 motel manager's report of suspected drug activity in a hotel room. Baird...