US v. Darian Robinson

Filing 920090706

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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