United States v. Robinson

• Decision Date: 21 February 2014
• Docket Number: No. 12–4639.,12–4639.
• Citation: 744 F.3d 293
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Steven Larue ROBINSON, Defendant–Appellant.

744 F.3d 293

UNITED STATES of America, Plaintiff–Appellee,

v.Steven Larue ROBINSON, Defendant–Appellant.

No. 12–4639.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 29, 2013.

Decided: Feb. 21, 2014.

ARGUED:Seth Allen Neyhart, Stark Law Group, PLLC, Chapel Hill, North Carolina, for Appellant. Joshua L. Rogers, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER joined. Judge DIAZ wrote a separate opinion dissenting in part.

DIANA GRIBBON MOTZ, Circuit Judge:

Steven Robinson challenges his 140–month sentence for cocaine distribution, contending that the district court erred in assigning his drug quantity and in calculating his criminal history. For the reasons that follow, we affirm.

I.

A.

In 2010, police officers in Wilson, North Carolina, videotaped Robinson and two others making six crack-cocaine sales to a police informant. The Government indicted Robinson on one count of conspiring to distribute crack cocaine from 2002 to 2011, one count of aiding and abetting the distribution of crack cocaine, and six counts of distribution of crack cocaine. Robinson pled guilty to three of these counts in February 2012, but sought to proceed to trial on the remaining five counts. His two co-conspirators pled guilty the week before Robinson's scheduled trial. In light of these guilty pleas, Robinson himself pled guilty to the remaining five counts on April 30, 2012, the day on which his trial had been scheduled.

B.

A presentence investigation report (PSR) drafted by a probation officer calculated Robinson's base offense level in light of the quantity of crack cocaine attributable to him. Although the counts to which Robinson pled guilty specify only that the crime involved “50 grams or more” of crack cocaine, the Sentencing Guidelines require judges to consider all drug sales made by the defendant during the conspiracy—including drug sales not covered by the counts of conviction. U.S.S.G. § 2D1.1 cmt.5.

In Robinson's case, the probation officer concluded that, between 2002 and 2011, Robinson sold far more crack cocaine than was implicated by the six sales the police captured on tape. In arriving at this conclusion, the probation officer relied on statements made to the police by Melvin Battle, who claimed to have purchased drugs from Robinson regularly from 2000 through 2008. Taking the low end of Battle's estimates, the probation officer estimated that Robinson sold Battle 1.43 kilograms of crack cocaine. This estimate, combined with the drug quantity covered by the counts of conviction, translated to a drug quantity calculation of 1.47 kilograms of crack cocaine, which produced a base offense level of 34. From this base offense level, the probation officer recommended a 3–level reduction for acceptance of responsibility, resulting in a recommended offense level of 31.

The PSR also contained a calculation of Robinson's criminal history category. The probation officer assigned Robinson one criminal history point based on a 2003 conviction for marijuana possession, and another point based on a 2009 conviction for resisting arrest and carrying a concealed weapon. The probation officer added two more points under Section 4A1.1(d) of the Sentencing Guidelines, which provides for an enhancement if the defendant committed the crime of conviction while on probation. The probation officer reasoned that Robinson had been given a one-day sentence of probation because of his 2003 marijuana conviction, and that this term coincided with the ongoing drug conspiracy. These four criminal history points produced a criminal history category of III.

Based on a criminal history category of III and an offense level of 31, the recommended Guidelines range in the PSR totaled 135–168 months imprisonment.

C.

At sentencing, Robinson objected both to the calculation of drug quantity and the calculation of criminal history.

i.

Robinson's challenge to his drug quantity rested on the PSR's reliance on the statement provided by Melvin Battle. Given the opportunity to address the court directly, Robinson pointed out that, before attributing 1.43 kilograms of crack to Robinson, Battle had in an earlier interview stated that Robinson sold him 6 kilograms of the drug. Robinson also argued that Battle's claim to have bought PCP cigarettes from Robinson in North Carolina from 2005 to 2008 was false because Robinson was enrolled in culinary school in Florida during most of that period. Contending that he never sold drugs to Battle, Robinson insisted that Battle was “blatantly lying” to curry favor with prosecutors.

In response, the Government conceded that Battle revised his statement to render his second drug-quantity estimate significantly lower than his first. But the Government argued that “it is not unusual for Defendants to estimate differently” when interviewed on two separate occasions. According to the Government, Battle's second statement merely provided a more conservative and reliable estimate than the first. With respect to the PCP cigarettes Battle claimed to have bought when Robinson was in Florida, the Government emphasized that these sales did not figure into the PSR drug-quantity assignment.

The Government further defended the drug-quantity calculation by explaining that, notwithstanding the asserted deficiencies in Battle's statement, three other witnesses were prepared to state that Robinson sold them drugs during the conspiracy timeframe. Although these statements did not “make their way” to the probation office, the Government maintained that these accounts would put Robinson “in at least the position he's in with Mr. Battle's statement, if not in a worse position.”

Upon consideration of the parties' arguments, the district court presented Robinson with a choice:

We'll do it one of two ways. We're going to go forward today with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence. Or I'll unwind the whole thing. I'll start the PSR process all over. If there are statements that didn't, for whatever reason, make it to the Probation Office, [I'll] start again. And, whatever happens, happens. And then, you'll have a chance to object.... That's the only way I see—those are the only two choices.

Robinson responded by reiterating that Battle's statement was not credible. But, after the court again asked him whether he would prefer to proceed on the basis of Battle's statement or delay sentencing for three months to allow the parties ample time to obtain more information, Robinson responded that “I would rather go ahead and do it now, Your Honor.”

The Government further explained the basis of the drug quantity calculation set forth in the PSR and why this calculation would have been higher if the PSR had included statements of other witnesses. Robinson then addressed the court, contending that he “wasn't an everyday drug dealer” and that any witnesses saying to the contrary were lying. After the court reviewed the counts to which Robinson pled guilty, it concluded that, with respect to the relevant conduct informing his drug quantity calculation, Robinson “really ha[d] gotten a break [because of] the way the Probation Office calculated the amount of crack cocaine.” The court stated that it “had heard enough to conclude that the calculations in the [PSR were] credible and reliable,” and that they could be used in calculating Robinson's offense level, but it again reiterated that it was willing to “open this all back up” if Robinson were so inclined. Robinson did not take the court up on its offer.

ii.

Robinson also objected to the PSR's assignment of two criminal history points on the basis of his sentence of one day probation for the 2003 marijuana conviction. He argued that he had spent the entire day of probation en route from the Maryland courthouse, and so could not have sold drugs on that day. The court rejected this argument and imposed a two-point adjustment, concluding that the Sentencing Guidelines required this result. This adjustment increased Robinson's guidelines range from 121–151 months to 135–168 months. The court sentenced Robinson to 140 months imprisonment—a sentence the court noted was “well within” both ranges.

Robinson appeals, asserting that the district court procedurally erred in calculatinghis drug quantity and criminal history.¹

II.

With respect to drug quantity, Robinson contends that the district court committed plain error by relying on Battle's statement in the PSR. Robinson, however, has waived this contention. When he made the conscious choice at sentencing to proceed on the basis of the information contained in the PSR, including Battle's statement, Robinson waived his right to appeal the district court's reliance on that information.

A “waiver is the intentional relinquishment or abandonment of a known right.” Wood v. Milyard, –––U.S. ––––, 132 S.Ct. 1826, 1835, 182 L.Ed.2d 733 (2012) (quotation marks omitted). Waiver is to be distinguished from “forfeiture,” which is “the failure to make the timely assertion of a right.” Kontrick v. Ryan, 540 U.S. 443, 458, n. 13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Courts may review a forfeited claim for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).² But when a claim is waived, it is not reviewable on appeal, even for plain error. Id. Rather, a valid waiver means that there was “no error at all.” United States v. Keeter, 130 F.3d 297, 300 (7th Cir.1997). The case at hand is one of waiver, not forfeiture. “A party who identifies an issue, and then explicitly withdraws it, has waived the issue.” United States...