United States v. Robinson

• Decision Date: 07 June 2018
• Docket Number: No. 17-4018,17-4018
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Oscar Curtis ROBINSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

892 F.3d 209

UNITED STATES of America, Plaintiff–Appellee,

v.Oscar Curtis ROBINSON, Defendant–Appellant.

No. 17-4018

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 7, 2018

ON BRIEF: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant Oscar Robinson appeals the above-Guidelines sentence imposed after he pleaded guilty to possession with intent to distribute fentanyl in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Robinson argues that his sentence is substantively unreasonable because the district court did not give an adequate or proper rationale. We disagree and affirm.

I.

Robinson’s conviction stems from an investigation into his drug trafficking activity. Law enforcement officers obtained a search warrant for Robinson’s Ohio apartment after observing him sell drugs outside, and after making a series of controlled buys from him. When the officers arrived to execute the warrant, Robinson fled and was chased, tackled, and subdued. Police officers then seized fentanyl, marijuana, and methamphetamine, as well as three scales, a blender, packaging materials, three cell phones, $60 in currency, and a bag of needles, from the apartment. Two women and a young child were present during the search.

In Robinson’s pre-sentence report (PSR), a probation officer calculated a total offense level of nineteen. Because Robinson’s criminal history spanned nineteen years and yielded a total score of twenty six, he was assigned to Criminal History Category VI. Robinson faced a statutory maximum of twenty years in prison, but his advisory Guidelines imprisonment range was 63–78 months.

The district court sentenced Robinson to 118 months after varying upwards from the top of his Guidelines range by forty months.¹ In doing so, the district court invoked its discretion to increase a sentence based on the 18 U.S.C. § 3553(a) sentencing factors rather than a specific Guidelines provision. See United States v. Jordan , 544 F.3d 656, 671 n.12 (6th Cir. 2008) (distinguishing a variance from a departure).

II.

Here, Robinson contends that the district court gave excessive weight to certain factors including his continued drug use and recidivism, and to the community-wide harm caused by the opioid epidemic in Ohio.²

A.

An above-Guidelines sentence is neither presumptively reasonable nor presumptively unreasonable. United States v. Robinson , 813 F.3d 251, 264 (6th Cir. 2016). We review it for abuse of discretion, "whether ... just outside, or significantly outside the Guidelines range[.]" United States v. Cunningham , 669 F.3d 723, 728 (6th Cir. 2012) (citation omitted). However, "a major departure should be supported by a more significant justification than a minor one." Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Robinson challenges the substantive reasonableness of his sentence. We consider a sentence to be substantively unreasonable where the district court "arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor." Cunningham , 669 F.3d at 733 (citation omitted). Our review of Robinson’s sentence "will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Gall , 552 U.S. at 51, 128 S.Ct. 586. But we "must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id.

B.

Robinson has struggled with substance abuse throughout his life, and challenges how the district court weighed his relapse and recidivist history. Simply stated, Robinson argues that the district court improperly punished him for being an addict. But Robinson takes a narrow view of the record. In view of "the totality of the circumstances," his sentence was substantively reasonable. See Gall , 552 U.S. at 51, 128 S.Ct. 586.

1.

First and primarily, Robinson urges that the district court’s consideration of his continued drug use and repeated community-control violations was improper given the nature of addiction and the allegedly inadequate treatment opportunities afforded him by the state of Ohio. Because the district court viewed this history as evidence of Robinson’s continued failure to conform his conduct to the law, we disagree.

At sentencing, the district court detailed Robinson’s nineteen-year criminal history that began when he was eighteen. In doing so, it underscored the serious nature of that history, referencing Robinson’s past convictions for aggravated robbery, cocaine possession and trafficking, assault, weapons possession despite a firearm disability, driving under the influence, misusing credit cards, domestic violence, and violating a temporary protection order, among others. The district court also noted that Robinson’s driver’s license had been suspended forty-four times, and he had received at least twenty-two traffic citations, further contributing to an excessive burden on law enforcement. And, by the district court’s count, Robinson had been placed on state community control eight times in two decades, and had violated community control each time.

Based on the information in Robinson’s PSR and his own experience as a former state-court judge, the district court judge expressed skepticism at defense counsel’s suggestion that Robinson had not been given any opportunity to, or had never been directed to, "engage in drug treatment when many of [his] community control sanctions were for drug-related offenses."³ In response, defense counsel conceded that Robinson had been offered some level of substance-abuse treatment in the past, but not the kind of long-term treatment he needed. The district court agreed and granted defense counsel’s request for such treatment, but reiterated its point that although Robinson was an addict, he had "had numerous, numerous chances" to modify his behavior and "failed at every, every opportunity at a community control sanction." Accordingly, the district court concluded, Robinson "ha[d] proven over many, many, many years" that he would continue to distribute opioids absent "a very long period of incarceration." For the district court, a variance was thus warranted given his failure to conform his conduct to law despite many previous opportunities and penalties.

The district court thus stressed as significant factors Robinson’s criminal and recidivist history, and the need to deter him from committing more crimes, and thus protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C). To the extent Robinson now claims that the district court ignored existing research on addiction, we note that the materials regarding addiction and relapse rates that he brings to our attention on appeal were not presented to the district court. See United States v. White , 874 F.3d 490, 495 (6th Cir. 2017) (this court reviews a case as it was presented to the district court). But even if they had been, it was not unreasonable for the district court to treat Robinson’s continued drug use (despite at least some treatment opportunities and repeated community-control sanctions) as a factor that could explain, but not outweigh, his extensive criminal history and chronic recidivism. Cf. United States v. Kruger , 613 Fed.Appx. 451, 454 (6th Cir. 2015) (a defendant’s "multiple post-release violations for continued drug use" evidence a lack of respect for the law). Robinson specifies no contrary authority.

In any event, a district court does not commit reversible error simply by "attach[ing] great weight" to a few factors. See Gall , 552 U.S. at 57, 128 S.Ct. 586. Indeed, "[n]ot all [ § 3553(a) factors] are important in every sentencing; often one or two prevail, while others pale." United States v. Bridgewater , 479 F.3d 439, 442 (6th Cir. 2007). Here, given the nature and extent of Robinson’s criminal and recidivist history in light of his relatively young age (38), the district court’s concerns were not undue; they are among the valid reasons the district court gave for imposing an upward variance. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C) (factors to consider include the defendant’s personal history and characteristics, promoting respect for the law, justly punishing the instant offense, affording adequate deterrence to criminal conduct, and protecting the public from future crimes of the defendant).

And Robinson’s contentions aside, the district court was not indifferent to the sympathetic aspects of his personal history, including his struggle with addiction, and his request for long-term treatment. Both the PSR and Robinson’s trial counsel detailed for the district court how a very young Robinson was introduced to drugs and alcohol by his parents, and subject to physical abuse by his father. Robinson himself admitted to the district court that his life "ha[d] been a real battle with drugs," but asserted that he was finally ready to conquer his substance-abuse issues. In response, the district court acknowledged Robinson’s personal history and afforded him the opportunity per § 3553(a)(2)(D) to participate in an intensive 500–hour residential drug-abuse-treatment program while incarcerated.⁴ Moreover, the district court recommended cognitive behavioral therapy

for Robinson after he is released. Thus the district court’s sentence contemplated not just punishment and community protection, but also Robinson’s need for rehabilitation. See 18 U.S.C. § 3553(a)(2)(D).

On this record, the district court did not abuse its sentencing discretion.

2.

Second and relatedly, Robinson maintains that the district court abused its discretion by considering the harm caused by the opioid epidemic in Ohio without...