USA v. Robinson

Filing 920060403

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 02-20615 _____________________ UNITED STATES OF AMERICA, Plaintiff - Appellee versus ANTHONY ROBINSON, also known as Tony Marcel Robinson, Defendant - Appellant. _________________________________________________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-286-1 _________________________________________________________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, Chief Judge, JOLLY and PRADO, Circuit Judges. PER CURIAM:1 This sentence. court affirmed Anthony Robinson's conviction and The April 3, 2006 Charles R. Fulbruge III Clerk

United States v. Ingram, 96 Fed. Appx. 946 (2004).

Supreme Court vacated and remanded for further consideration in the light of United States v. Booker, 125 S.Ct. 738 (2005). v. United States, 125 S. Ct. 1093 (2005). received Booker. supplemental letter briefs Robinson

We requested and the impact of

addressing

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Robinson was convicted of marijuana offenses and conspiracy to launder money. drugs involved His sentence was enhanced based on the quantity of in the offenses, his leadership role in the

conspiracy, and obstruction of justice. Robinson filed written objections to the PSR, contending that his base offense level had been based on drug amounts that had not been proven beyond a reasonable doubt. enhancements for his leadership role He also objected to the and for obstruction of

justice, on the ground that there was insufficient evidence to support those enhancements. In addition, he objected that the

statutes of conviction, 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B), are unconstitutional as a result of Apprendi v. New Jersey, 530 U.S. 466 (2000). At the sentencing hearing, Robinson's counsel stated, in response to the court's comment about consideration of evidence as to an acquitted count: I want to be clear for the record, Your Honor. I think we stated this in our brief. I expect that the Supreme Court, given certain things that were said in some of the various Apprendi opinions, may change that. I want to be clear that we're asking for it to apply reasonable doubt standard with respect to any quantity issues. I know what the law in the Fifth Circuit is right now. We are hoping that will change at some point. Robinson's counsel also objected to the enhancements for leadership role and obstruction of justice, and argued that the Government had the burden of proving the applicability of those enhancements 2

beyond a reasonable doubt rather than by a preponderance of the evidence. The district court found that the enhancements for leadership role and obstruction of justice applied, but lowered the drug quantity determined by the PSR. Pursuant to Robinson's request,

the district court found that Robinson's leadership role had been established beyond a reasonable doubt. The district court

determined the guideline imprisonment range to be 235 to 293 months, and sentenced Robinson to 235 months in prison, commenting that "I do think this is a very stiff range." In his supplemental brief, Robinson argues that the district court erred when it applied the Sentencing Guidelines as mandatory rather than advisory and sentenced Robinson above the sentencing range supported by the jury verdict and Robinson's criminal

history.

He contends that he properly preserved this issue by the sufficiency of the evidence supporting the

challenging

enhancements, and by arguing that the enhancements had to be proved beyond a reasonable doubt. Robinson also contends that the

district court plainly erred by failing to consider the factors set forth in 18 U.S.C. § 3553(a). The Government counters that Robinson's objections in the district court are insufficient to preserve a Booker claim, because although Robinson objected that the statutes of conviction are unconstitutional after Apprendi because drug type and quantity are elements of the offense, he did not object that the Guidelines are 3

unconstitutional under Apprendi's reasoning or that the Sixth Amendment and/or Apprendi require that enhancements for drug

quantity, leadership role, and obstruction of justice be proved to a jury. Furthermore, the Government asserts that although Robinson objected to the standard of proof at sentencing regarding drug quantity and the leadership role enhancement, he wanted the court -- not the jury -- to determine those increases beyond a reasonable doubt rather than by a preponderance of the evidence. To preserve Booker error, a defendant need not mention the Sixth Amendment, Apprendi, or Blakely v. Washington, 542 U.S. 296 (2004). However, the defendant must "adequately apprise[] the United States

court that he was raising a constitutional error." v. Olis, 429 F.3d 540, 544 (5th Cir. 2005).

The argument must be

couched in terms that the facts used to enhance the sentence were not proved to a jury beyond a reasonable doubt. Under our

precedent, Robinson's objections, although less than pellucid, adequately apprised the district court that he was raising a constitutional error under Apprendi. See United States v. Akpan,

407 F.3d 360, 376, 377 (5th Cir. 2005) (objection to calculation of range of financial loss on ground that figure had not been proven at trial, and objection that district court should confine its determination of loss to amount alleged in indictment "adequately apprised the district court that [defendant] was raising a Sixth Amendment objection to the loss calculation because the government did not prove to the jury beyond a reasonable doubt that the loss 4

was between five to ten million dollars"); see also United States v. Olis, 429 F.3d 540, 544 (5th Cir. 2005) (defendant preserved Booker error when objecting to district court's loss calculation by alerting "the court to cases that acknowledged the potential for a constitutional violation when sentencing facts are not found by at least clear and convincing evidence"); United States v. Pineiro, 410 F.3d 282, 283-85 (5th Cir. 2005) (defendant's Apprendi-based objection to PSR's drug-quantity calculations was sufficient to preserve his Booker claim). When, as here, a defendant preserves Booker error, "we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure." United States v. Mares, 402 F.3d 511, 520 n.9 (5th

Cir.), cert. denied, 126 S.Ct. 43 (2005). The Government bears the "burden of demonstrating beyond error a of that the error doubt was that harmless the by

demonstrating constitutional

reasonable which

federal did not

[Robinson]

complains

contribute to the sentence that he received." Pennell, 407 F.3d 360, 377 (5th Cir. 2005).

United States v.

The Government argues

that any error is harmless, because the sentence that Robinson received is reasonable. The Government has not met its burden of

proof -- it has not pointed to any evidence in the record or statements by the district court that would prove beyond a

reasonable doubt that the district court would have imposed the same sentence had it acted under an advisory Guidelines regime. 5

For the foregoing reasons, we VACATE Robinson's sentence and REMAND the case to the district court for resentencing. VACATED and REMANDED.

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