US v. Darian Robinson

Filing 920090706

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4699 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARIAN KENDELL ROBINSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00032-LHT-DLH-4) Submitted: June 17, 2009 Decided: July 6, 2009 Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Eric A. Bach, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a plea agreement, Darian Kendell Robinson pled guilty to conspiracy to possess with intent to distribute fifty grams or more of cocaine base ("crack"), in violation of 21 U.S.C. 846 (2006). as a career offender to The district court sentenced Robinson 276 months' imprisonment. Robinson timely appealed. Robinson's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), challenging the adequacy of the Fed. R. Crim. P. 11 hearing and questioning Robinson's meritorious supplemental sentence, grounds brief, but for concluding that there filed and a were pro no se appeal. his Robinson challenging conviction sentence. Finding no meritorious grounds for appeal, we affirm. Counsel first raises as a potential issue the adequacy of the Rule 11 plea colloquy. Our careful review of the record convinces us that the district court substantially complied with the mandates of Rule 11 in accepting Robinson's guilty plea. The court ensured that Robinson entered his plea knowingly and voluntarily and that the plea was supported by an individual factual basis. United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Next, counsel asserts that the district court engaged in impermissible double counting by using a prior conviction 2 both to raise the statutory minimum sentence from ten years' imprisonment to twenty years' imprisonment pursuant to 21 U.S.C.A. 841(b) (West 1999 & Supp. 2009), and 21 U.S.C. 851 (2006), and to classify Robinson as a career offender. that Robinson is not entitled to relief on this claim. We find United States v. Quiroga, 554 F.3d 1150, 1158 (8th Cir.), cert. denied, 129 S. Ct. 2175 (2009). Counsel erred in relying of also on questions Robinson's that whether 1990 the district court for felony convictions as a purposes offender (2006), determining U.S. Robinson qualified career under and Sentencing the Guidelines court Manual 4B1.1(a) an adequate whether district provided explanation for the sentence imposed. Under USSG 4A1.1(e)(1), any sentence exceeding one year and one month that resulted in the defendant being incarcerated for a period of time within fifteen years of the commencement of the instant offense may be properly offender. at which considered in designating a defendant as a career "Commencement of the instant offense" means the point the defendant first engaged in conduct that would qualify as "relevant conduct." USSG 4A1.2 cmt. n.8. We find that the district court properly considered the 1990 convictions in determining that Robinson was a career offender because Robinson was released from incarceration for those offenses less than fifteen years before he committed the instant offense. 3 Turning sentence, to the district a court's explanation within the of its Robinson received sentence properly calculated guidelines range, a sentence that is entitled to an appellate presumption of reasonableness. Rita v. United States, The record Robinson 551 U.S. 338, __, 127 S. Ct. 2456, 2459 (2007). reveals no nonspeculative basis for concluding that would have received a different sentence had the court engaged in a more thorough explanation at sentencing. v. White, 405 F.3d 208, 223-24 (4th Cir. 2005). In accordance with Anders, we have reviewed the record for any we meritorious affirm that the issues for appeal court's his and have found This none. court of his Cf. United States Thus, district inform judgment. in requires counsel client, writing, right to petition the Supreme Court of the United States for further filed, review. but If the client requests such for a that a petition would be be counsel then believes may that move petition to frivolous, counsel leave withdraw from representation. was served on Counsel's motion must state that a copy thereof the client. We dispense with oral argument because the facts and legal contentions are adequately presented We have reviewed the claims in Robinson's pro supplemental brief and conclude that they are without merit. se 4 in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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