U.S. v. Robinson

• Decision Date: 05 July 1991
• Docket Number: Nos. 90-3302,90-3324,s. 90-3302
• Citation: 935 F.2d 201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paula Lynn ROBINSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pete ROBINSON, a/k/a Jerry, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 201

935 F.2d 201

UNITED STATES of America, Plaintiff-Appellee, v. Paula Lynn ROBINSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Pete ROBINSON, a/k/a Jerry, Defendant-Appellant.

Nos. 90-3302, 90-3324.

United States Court of Appeals Eleventh Circuit.

July 5, 1991.

A. Russell Smith, Jacksonville, Fla., for Paula Lynn Robinson.

Daniel A. Smith, Jacksonville, Fla., for Pete Robinson.

Michelle McCain Heldmyer, Asst. U.S. Atty., Jacksonville, Fla., for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before ANDERSON and DUBINA, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

DUBINA, Circuit Judge:

Appellants, Paula Lynn Robinson and Pete Robinson, appeal separately their sentences imposed by the United States District Court for the Middle District of Florida for their involvement in a drug conspiracy. ¹

I. BACKGROUND FACTS

Paula Lynn Robinson (Paula Robinson), Pete Robinson, and sixteen codefendants were involved in a large-scale crack cocaine distribution ring in Jacksonville, Florida, between 1986 and 1989. The crack cocaine distribution ring was operated from a business known as the ABC Junkyard, which was owned by the Robinson family. Customers would drive to the front of the business and one of the many sellers would approach the window of the automobile and sell the passenger crack cocaine. Three to five kilograms of crack cocaine were distributed each week from the ABC Junkyard.

Members of the narcotics section of the Jacksonville Sheriff's Office made numerous arrests for individual crack cocaine sales during the period of the conspiracy. Eventually, an undercover police officer gained the confidence of the organization and was able to make in excess of 30 purchases of crack cocaine from the junkyard area, including a purchase of 4.9 grams of cocaine from Paula Robinson.

II. PROCEDURAL HISTORY

A twenty-eight count indictment was returned against the Robinsons and other individuals for their participation in the crack cocaine distribution ring. Paula Robinson filed a plea agreement and pled guilty to a lesser included offense which charged her with distribution of crack cocaine on one occasion. The Presentence Investigation Report (PSI) represented that Paula Robinson's total offense level was 34 and her criminal history category II, which resulted in a sentence range of 168 to 210 months imprisonment under the United States Sentencing Guidelines (U.S.S.G.). Paula filed written objections to the PSI regarding the base offense level calculations. She argued that there was no evidence that she enlisted the aid of coconspirators to sell cocaine or that she was involved in more than one sale. She claimed that she was not part of an overall conspiracy; however, the government presented evidence at the sentencing hearing that showed Paula Robinson belonged to a conspiracy that distributed thousands of grams of crack cocaine per week. The court adopted the factual findings in the PSI and sentenced Paula Robinson to 189 months imprisonment with three years supervised release and a $50.00 special assessment.

Pete Robinson also filed a plea agreement and pled guilty to count eight of the indictment which charged him with distribution of a cocaine base. The PSI represented that Pete Robinson's total offense level was 34 and his criminal history category VI, which resulted in a sentence range of 262 to 327 months imprisonment under the U.S.S.G. Since Pete Robinson pled guilty to a twenty-year drug offense, the guidelines sentence was calculated to be twenty years. Pete Robinson filed written objections to the PSI claiming that he should have been classified as a career offender as set forth in U.S.S.G. Sec. 4B1.1. The district court disagreed with Pete Robinson and sentenced him to 18 years imprisonment, with three years supervised release and a $50.00 special assessment.

III. DISCUSSION

Paula Robinson raises two issues on appeal: (1) whether an ex post facto application of U.S.S.G. Sec. 1B1.3 occurred when the district court calculated her base offense level; and (2) whether the district court erred in finding an aggregate amount of cocaine base in excess of 500 grams. Pete Robinson's sole issue on appeal is whether the district court erred in its calculation of his criminal history category.

This court's review of the Robinsons' sentences is governed by 18 U.S.C. Sec. 3742(d). The application of the law to sentencing issues is subject to de novo review. United States v. Chotas, 913 F.2d 897 (11th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991).

A. Ex post facto application

Paula Robinson contends that the district court applied U.S.S.G. Sec. 1B1.3 to the calculation of her base offense level as it existed at the time of the sentencing, not at the time of the commission of the offense, and that this constituted an ex post facto application of the guidelines. At the time of the commission of the offense, Sec. 1B1.3, Application Note 1 (1988), provided:

Conduct "for which the defendant is otherwise accountable," as used in subsection (a)(1), includes conduct that the defendant counselled, commanded, induced, procured, or willfully caused. If the conviction is for conspiracy, it includes conduct in furtherance of the conspiracy that was known to or was reasonably foreseeable by the defendant.

On November 1, 1989, the relevant portion of Sec. 1B1.3, Application Note 1, was amended to provide:

In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant "would otherwise be accountable" also includes conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonably foreseeable to the defendant.

Thus, under the 1989 amendment, a defendant could be held accountable for the quantities of cocaine sold by codefendants whether or not he or she had pled guilty to a conspiracy charge. Paula Robinson admits that 18 U.S.C. Sec. 3553(a)(4) states that the court should consider the Guidelines policy statements that are in effect on the date of sentencing; however, she claims that since this amendment increases her sentence calculation, it is an ex post facto application of the sentencing guidelines and thus a constitutional violation. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

As stated in Miller, the critical elements that must be present for a law to fall within the ex post facto prohibition are "first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the offender affected by it.' " 482 U.S. at 430, 107 S.Ct. at 2451 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). Paula Robinson claims that both elements are met in this case because the application of the November 1, 1989 amendment results in a base offense level of 36 as opposed to the pre-amendment provisions which would result in a base offense level of 24. The ensuing detriment is to raise her sentencing range from 46 to 57 months to the range within which she was sentenced--168 to 210 months.

There is no question that the January 15, 1988 amendment to Sec. 1B1.3 applies to Paula Robinson's conviction because her offense was committed in July 1989. Furthermore, the commentary that accompanied Sec. 1B1.3 in 1988 provided:

[C]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range. The range of information that may be considered at sentencing is broader than the range of information upon which the applicable sentencing range is determined.

U.S.S.G. Sec. 1B1.3 comment. (backg'd). The Sentencing Commission specifically addresses drug cases and states that "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." U.S.S.G. Sec. 1B1.3 comment. (backg'd). It is evident from the commentary to Sec. 1B1.3 that the Sentencing Guidelines, at the time of Paula Robinson's offense, intended for relevant conduct used in determining the base offense level of the individual defendant to include all acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.

The government contends that the November 1, 1989 amendment was intended as a clarification of the January 15, 1988 amendment. Section Sec. 1B1.3 was further clarified by the Sentencing Commission to specifically include in its relevant conduct considerations "conduct for which the defendant 'would be otherwise accountable,' ... whether or not charged as a conspiracy." U.S.S.G. Sec. 1B1.3, Application Note 1 (Nov. 1989). The clear intent of the Sentencing Commission was not to make any substantive changes, but rather, to express its constant intent throughout the application of Sec. 1B1.3; i.e., to ensure that all relevant conduct be considered upon sentencing of all defendants pursuant to the U.S.S.G. Since the change in the November 1, 1989 amendment was not...