USA v. Randall Roebuck, Jr.

Filing

Opinion issued by court as to Appellant Randall Roebuck, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-15775

Date Filed: 04/25/2013

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15775
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D.C. Docket No. 4:11-cr-00020-RH-WCS-1
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
versus

RANDALL ROEBUCK, JR.,
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Defendant-Appellant.

________________________
Appeal from the United States District Court
for the Northern District of Florida
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(April 25, 2013)
Before MARTIN and ANDERSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:

*

Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.

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Randall Roebuck, Jr., appeals his 235-month sentence, at the low end of the
applicable guideline range, imposed after a jury found him guilty of one count of
possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). On appeal, Roebuck argues that the district court erred by
including four criminal history points on the basis of two prior convictions that he
claims the government failed to prove. Roebuck challenges the prior convictions
described in Paragraphs 31 and 33 of the presentence investigation report (“PSI”).
Roebuck contends that, as the government failed to present any evidence at
sentencing establishing the convictions that he disputed, the court should not have
included the four points when it calculated his criminal history score.
Accordingly, Roebuck argues that his sentence within the court’s guideline range
was procedurally unreasonable. After thorough review of the record, and with the
benefit of oral argument, we affirm Roebuck’s sentence.
I.
We review the application of the Sentencing Guidelines de novo and the
district court’s findings of fact for clear error. United States v. Ellisor, 522 F.3d
1255, 1273 n.25 (11th Cir. 2008). We review the procedural reasonableness of a
sentence, including whether the guideline range was properly calculated, for an
abuse of discretion. United States v. Register, 678 F.3d 1262, 1266 (11th Cir.
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2012). We may affirm on any ground supported by the record. Bircoll v. MiamiDade Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the guideline range, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to explain adequately the chosen sentence. Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). The party
challenging the sentence has the burden of establishing that the sentence was
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Once a defendant objects to a fact contained in the PSI at sentencing, the
government bears the burden of proving that disputed fact by a preponderance of
the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005);
see also United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009) (“It is by
now abundantly clear that once a defendant objects to a fact contained in the PSI,
the government bears the burden of proving that disputed fact by a preponderance
of the evidence.”). The preponderance of evidence is a “relaxed evidentiary
standard, however, it does not grant the court a license to sentence a defendant in
the absence of sufficient evidence when that defendant has properly objected to a
factual conclusion.” Rodriguez, 398 F.3d at 1296.
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II.
At the initial sentencing, Roebuck’s counsel indicated to the district court
that he had reviewed the judgments and indictments and that “everything I looked
at showed that the [PSI] is correct” and that, “notwithstanding Mr. Roebuck’s
memory,” the issue had “been thoroughly checked out as far as I can tell.” Doc.
47 at 4, 8-9. Afterwards, Roebuck addressed the district court and personally
challenged the PSI’s description of his criminal history. Roebuck challenged his
convictions as set forth in Paragraphs 25-26 and 28-29 of the PSI, as well as his
convictions described in Paragraphs 31 (two counts of resisting an officer without
violence) and 33 (trespass of a conveyance). As relevant to the instant appeal,
Roebuck argued that he was actually found not guilty of the charges in Paragraphs
31 and 33. Defense counsel specifically responded to the district court’s questions
regarding the convictions in Paragraphs 31 and 33, stating, with regard to the
conviction in Paragraph 33, that “I reviewed the judgment and sentence in that
particular case” and “[i]t reflects that Mr. Roebuck went to trial and was found
guilty.” Id. at 5. With regard to the convictions in Paragraph 31, and in response
to a specific question from the court, defense counsel responded that he had
reviewed the state documents underlying the conviction and that they showed that
Roebuck had been convicted of the specific offenses. Id. at 6. The district court
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also spoke with the probation officer in court, who answered “yes” when asked
whether the records that she had in court appeared “normal on their face.” Id. at
10. Although the defense attorney had candidly acknowledged that the PSI
accurately reflected the prior convictions as revealed in the underlying state court
documents, Roebuck himself had lodged two objections: first, that some of his
earlier convictions were convictions under the Youthful Offender Act; and second,
that his personal recollection of events was inconsistent with the facts as revealed
in the underlying state court documents and reflected in turn in the PSI. Only the
latter objection is relevant to the two prior convictions challenged on appeal–i.e.,
those referred to in Paragraphs 31 and 33 of the PSI. The district court, while
noting that the convictions in the PSI were “probably” correct, continued the
sentencing proceedings for the next week.
The record reveals that the district court continued sentencing until the next
week for two reasons: primarily to confirm the district court’s tentative thoughts
that Roebuck’s assertions–that several of his prior convictions were pursuant to
the Youth Offender Act–did not affect the Guideline calculation, but also to allow
counsel to talk to the attorneys handling the prior proceedings to demonstrate any
error in the underlying state courts documents. At the continued sentencing the
following week, the district court resolved both matters which had prompted the
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continuance of the original sentencing. The district court verified that neither
party had talked to attorneys who handled the prior proceedings, and that neither
party had found any evidence to impeach the accuracy of the copies of the
underlying state court convictions. Doc. 48 at 20. Thus, after resolving the
Youthful Offender Act issue,1 the district court found–with respect to the prior
convictions challenged now on appeal, i.e., those referred to in Paragraphs 31 and
33 of the PSI–that the copies of the underlying state court documents which the
parties had in hand accurately reflected the fact of those prior convictions, and
thus that the PSI was accurate in this regard. The district court held: “The last
time there were some questions raised about the other convictions [in Paragraphs
31 and 33]. But, again, the documentation is what was relied upon in the
presentence report, and there’s been no evidence suggesting that it’s not an
accurate description of what actually happened in state court.” Doc. 48 at 16. The
addition of the prior convictions from Paragraphs 31 and 33 resulted in four
criminal history points being added to Roebuck’s sentencing guideline range.
III.
The district court did not err by including the four contested criminal history
points because the government met its burden of proving the fact of conviction by
1

As noted above, the Youthful Offender Act is not relevant to this appeal.
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a preponderance of the evidence.2 The only relevant objection asserted by
Roebuck was that the PSI and the underlying state court documents did not
accurately reflect his actual convictions. Roebuck never asserted that the PSI did
not accurately reflect the copies of the underlying state court convictions. It was
undisputed at sentencing that the PSI accurately reflected what the copies of the
underlying state court convictions said. Defense counsel affirmatively and
repeatedly represented that he had personally reviewed those copies and that the
PSI accurately reflected their content. Doc. 47 at 6 (with respect to the prior
conviction in Paragraph 31); Doc. 47 at 5 (with respect to the prior conviction in
Paragraph 33). The probation officer corroborated same. Doc. 47 at 10. The
probation officer had those copies there in the courtroom at the time. Doc. 47 at 6.
This was never challenged by Roebuck personally.
In United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999), the
district court relied on an on-the-record colloquy with a substitute probation
officer who was reporting on the findings of the absent probation officer who
verified the prior convictions and prepared the PSI. The substitute officer was
speaking based on notes left by the absent probation officer. Although this Court
noted that “the best approach would always be to produce a certified copy of the
2

For the same reason, Roebuck’s sentence is not procedurally unreasonable.
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conviction,” we held that this is not necessarily required when the evidence “taken
together” is “sufficiently reliable to support the court’s finding.” See id. We held
that “the sources the district court relied upon—the PSI, the on-the-record
statements of a probation officer, and the notes of another probation
officer—when taken together, were sufficiently reliable to support the court’s
finding.” Id.
We emphasize that when a defendant disputes a fact at sentencing, the
government must establish that fact by a preponderance of the evidence.
Rodriguez, 398 F.3d at 1296. Here, the above mentioned evidence, including
defense counsel’s statements that the PSI was accurate, the fact that the probation
officer had access to these conviction records in court and stated that they
appeared normal on their face, and the fact these conviction records indicated that
Roebuck had been convicted of these offenses, is “sufficiently reliable” to support
the court’s finding that Roebuck had been convicted of these crimes. See Wilson,
183 F.3d at 1301. Both the defense counsel and the probation officer—acting in
their capacities as officers of the court—represented to the court that they had
reviewed the relevant documentation and that it supported the information
contained in the PSI. It was undisputed that the underlying state court documents
reflected that Roebuck had been convicted of these crimes, and Roebuck did not
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object to this fact. Moreover, the district court made a specific finding that the PSI
accurately reflected the underlying convictions. Accordingly, the government met
its burden of establishing that Roebuck was convicted of these past crimes by a
preponderance of the evidence.
IV.
For the foregoing reasons, we affirm Roebuck’s sentence.
AFFIRMED.

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