U.S. v. Robinson, 97-30025.

• Decision Date: 07 December 1999
• Docket Number: No. 97-30025.,97-30025.
• Citation: 76 F.Supp.2d 941
• Parties: UNITED STATES of America, Plaintiff, v. Charles R. ROBINSON, IV, Defendant.
• Court: U.S. District Court — Central District of Illinois

76 F.Supp.2d 941

UNITED STATES of America, Plaintiff, v. Charles R. ROBINSON, IV, Defendant.

No. 97-30025.

United States District Court, C.D. Illinois, Springfield Division.

December 7, 1999.

Gregory M. Gilmore, Springfield, IL, for plaintiff.

Howard W. Feldman, Jon Gray Noll, Springfield, IL, for defendant.

OPINION

RICHARD MILLS, District Judge.

Although a sentence of 100 years is very high, it is the sentence which Robinson, through his criminal activity, has earned.

It is the sentence for which the Sentencing Guidelines provide.

And, it is the sentence which this Court must reimpose.

I. PRELIMINARY ISSUES

This matter is before the Court following Charles R. Robinson, IV's, re-sentencing hearing. Before the Court could re-sentence Robinson, however, it had to resolve a few preliminary matters.

First, prior to the hearing, Robinson's counsel moved to withdraw his representation of Robinson. In his motion, Robinson's counsel represented that Robinson had asked him to file a motion to withdraw his representation based upon their inability to communicate and the current lack of trust between the two.

However, at the hearing, Robinson's counsel moved to withdraw his motion to withdraw his representation. Robinson's counsel informed the Court that Robinson's differences with him had been resolved and that Robinson wanted him to remain as his counsel during the re-sentencing hearing. Upon direct inquiry from the Court, Robinson confirmed that he wanted his current counsel to continue to represent him and his interests at the re-sentencing hearing. Accordingly, the Court allowed Robinson's counsel's motion to withdraw his motion to withdraw his representation of Robinson.

Second, on October 28, 1999, the Court received a courtesy copy of a pleading entitled "Petition for Extraordinary Writ" which Robinson, acting pro se, filed with the United States Supreme Court. In essence, Robinson asked the Supreme Court to issue a writ of mandamus instructing this Court to recuse itself and to transfer his re-sentencing hearing to another district judge. Robinson has previously filed motions with this Court asking it to recuse itself, and the Court has denied those requests because the Court is not actually biased against him and because the Court's impartiality cannot reasonably be questioned in this matter. 28 U.S.C. § 144 & § 455(a). Robinson has also previously asked the United States Court of Appeals for the Seventh Circuit to issue a writ of mandamus disqualifying this Court from conducting his re-sentencing hearing, but the Seventh Circuit has denied his request. Because the Court has not received any instruction from a higher court to the contrary, the Court proceeded with Robinson's re-sentencing hearing.

Third, both Robinson, acting pro se, and his attorney, acting on his behalf, asked the Court to revisit all of the issues surrounding his original sentence. Specifically, Robinson and his counsel asked the Court to find that he does not qualify as a career criminal, that he should not receive a two level enhancement for possessing a firearm in relation to his drug dealing, that he should not receive a four level enhancement for being an organizer/leader, and that the Court should sentence him for possessing and distributing powder cocaine rather than crack cocaine. Robinson argued that this Court has the authority to reconsider all of these issues on remand because the reversal of his sentence un-bundled his sentencing package, allowing the Court to consider these issues anew.

The Court disagrees. Contrary to Robinson's assertions, the Seventh Circuit's remand to this Court was limited to the issue of relevant conduct. Robinson relies upon the view of the majority of the circuits which hold that unless the remand specifically limits a district court's inquiry, the district court can review sentencing matters de novo. United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996); United States v. Sanchez Solis, 882 F.2d 693, 699 (2nd Cir.1989); United States v. Campbell, 168 F.3d 263, 265-66 (6th Cir. 1999).

However, the Seventh Circuit has adopted the minority view.¹ In this circuit,

the scope of the remand is determined not by formula, but by inference from the opinion as a whole. If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error. A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.

United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996), citing United States v. Polland, 56 F.3d 776, 779 (7th Cir.1995). The Seventh Circuit has adopted this position because, in its view, a de novo review at re-sentencing gives the defendant an unwarranted second bite at the apple, is prohibited by the law of the case doctrine, is implied by the limited nature of every remand, avoids multiple appeals, and avoids unnecessarily prolonging a case. Id. The Seventh Circuit's view is, of course, binding upon this Court.

In deciding Robinson's appeal, the Seventh Circuit opined that "even viewed deferentially, ... the Loonsfoot statements fail to establish the kind of `indicia of reliability' upon which a sentencing judge could comfortably rely. For that reason, we think a new and more critical look at Robinson's relevant conduct is required." United States v. Robinson, 164 F.3d 1068, 1071 (7th Cir.1999)(emphasis added). As such, the Court finds that its inquiry at re-sentencing is limited to a reconsideration of Robinson's relevant conduct, i.e., the drug amounts for which he should be held accountable. All other issues raised by Robinson in his pro se commentary and by his counsel are outside the scope of the Seventh Circuit's remand, and therefore, this Court lacks the authority to consider them.

Furthermore, the law of the case doctrine prohibits this Court from reconsidering issues other than Robinson's relevant conduct at his re-sentencing hearing. This Court considered and rejected most of Robinson's objections at his initial sentencing hearing. In addition, the Seventh Circuit opined that the issues raised on appeal by Robinson other than his relevant conduct issue were meritless: "[h]aving reviewed the record, we conclude that ... the sentencing judge did not err in invoking the gun or role-in-the-offense enhancements. Finally, the testimony at trial clearly established that Robinson distributed crack, not some less devastating species of cocaine." Robinson, 164 F.3d at 1071 n. 1.

Accordingly, based upon the Seventh Circuit's finding that Robinson's claims are meritless, the law of the case doctrine prohibits this Court from revisiting Robinson's renewed objections to the Presentence Investigation Report ("PSR").² See Polland, 56 F.3d at 779 n. 1 (holding that "[w]e held, however, that of his many contentions, only some merited discussion. Though unstated, logic compels that our statement had but one conclusion: the other arguments were meritless. Similar language has been considered to constitute a decision on the merits for purposes of the law of the case doctrine."); see also United States v. Minicone, 26 F.3d 297, 299-300 (2nd Cir.1994)(holding that the appellate court's statement that "[w]e hold that [defendant's] claims, including, among others, that he was a minor or minimal participant in the crimes charged, are without merit," without further discussion, precluded the district court from revisiting those issues).

Fourth, prior to the start of the re-sentencing hearing, Robinson asked the Court to prohibit the Government's witnesses from testifying. Robinson argued that the Seventh Circuit had anticipated that the Court would hear testimony from Gina Loonsfoot and from her alone. Robinson asserted that the Government was attempting to establish the drug amounts in the PSR through "backdoor" witnesses not previously considered or relied upon by the United States Probation Office in compiling the PSR. Accordingly, Robinson asked the Court to exclude all witnesses other that Loonsfoot from testifying at the re-sentencing hearing.

However, the Court believes that the Seventh Circuit contemplated that, on remand, the Government may call witnesses other than Loonsfoot in order to support the PSR's findings. See Robinson, 164 F.3d at 1070 (noting that "[w]hile it's not required that a judge hear personally from witnesses under oath at a sentencing hearing about drug quantities, we think it's not a terribly bad idea to do so when the witness is going to provide the basis for, as here, 97 percent of a defendant's relevant conduct.")(emphasis added). The Government represented to the Court that although it attempted to locate Loonsfoot in order to have her testify at the hearing, it was unsuccessful. The Court finds nothing improper about having Robinson's girlfriend³ and his drug suppliers⁴ testify at the hearing in order to establish the amount of drugs for which he should be held accountable, and thus, his motion to excluded all witnesses other than Loonsfoot was denied.

II. RELEVANT CONDUCT

Therefore, the only issue for the Court to resolve on remand was the drug amounts for which Robinson should be held accountable based upon his convictions and his relevant conduct. U.S.S.G. § 1B1.3. As the Seventh Circuit noted, however, the best that Robinson could hope for is to receive a base offense level of 34, with a final adjusted offense level of 42. Robinson, 164 F.3d at 1071. In order to receive a base offense level of 34, the Court would have to find that Robinson dealt with less than 500 grams of crack. If the Court were to make such a finding, then Robinson's sentencing guideline range would be 360 months to...