USA v. Aaron Robinson

Filing

PUBLISHED OPINION FILED. [10-41151 Affirmed ] Judge: EGJ , Judge: HRD , Judge: ECP Mandate pull date is 09/23/2011 for Appellant Aaron C. Robinson [10-41151]

Case: 10-41151

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Date Filed: 09/02/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
September 2, 2011

No. 10-41151

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
AARON C. ROBINSON,
Defendant–Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Aaron C. Robinson appeals his sentence after he pleaded guilty to one
count of using a cellular telephone to willfully threaten to unlawfully damage or
destroy a building by means of explosive, under 18 U.S.C. § 844(e). Robinson
contends that the district court erred by imposing a two-level sentencing
enhancement for using a minor “to commit the offense or assist in avoiding
detection of, or apprehension for, the offense” when Robinson used a minor to
purchase a prepaid cellular phone, with which Robinson made bomb threats the
following day.

U.S.S.G. § 3B1.4 (2009).

Despite the novel use of this

enhancement, we find no error in the district court’s application of § 3B1.4 of the
Sentencing Guidelines, and therefore we affirm.

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No. 10-41151
I. FACTUAL AND PROCEDURAL BACKGROUND
Aaron C. Robinson was scheduled to attend a child-support hearing in Port
Lavaca, Texas, on June 30, 2009. According to the factual basis supporting the
plea, he feared that because he was unable to pay $762 in child support, the
court would put him in jail. He decided that instead of attending the hearing,
he would call in a bomb threat and then drive back to Louisiana, where he was
living.
On June 29, 2009, Robinson drove with his girlfriend and children from
Louisiana to Angleton, Texas. Upon arriving, he asked his mother to take the
children to his ex-wife’s residence in Port Lavaca. Robinson also asked his thenfourteen-year-old stepsister, M.R., to purchase a prepaid cellular telephone with
money he gave her. He told M.R. that he would use the phone to call his
children and ex-wife. M.R. purchased a TracFone Wireless prepaid mobile phone
at a Walmart in Port Lavaca. Robinson then contacted M.R. and asked her to
leave the phone on the back porch of his mother’s house where he would pick it
up, which she did.
On the morning of June 30, Robinson and his girlfriend picked up the
prepaid phone and began driving back to Louisiana. Outside of Houston,
Robinson used the phone to make two bomb threats against the Calhoun County
Courthouse in Port Lavaca where his child-support hearing was scheduled to be
held. He placed one call to the Houston 911 Call Center, and the other directly
to the Calhoun County Courthouse. Based on these threats, officials closed the
courthouse for the day while a bomb-disposal unit searched the building.
Robinson threw the phone out the window as he drove back to Louisiana.
Investigators traced the bomb threats to calls made from a Tracfone
Wireless prepaid phone purchased at a Port Lavaca Walmart on June 29, 2009.
Using surveillance videos from the store, they observed a young female and male
making the purchase, and they made efforts to locate the two by contacting local
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schools and the juvenile probation department. A July 3, 2009 tip from a Crime
Stoppers hotline identified the individuals on the security tape as fourteen-yearold M.R. and seventeen-year-old J. M., both of whom lived in Angleton. The
caller also identified Robinson as the person who had called in the bomb threats.
Authorities arrested Robinson thereafter.
On April 28, 2010, the United States brought a two-count indictment
against Robinson. Both counts charged Robinson with using a cellular phone to
willfully threaten to damage or destroy a building by means of an explosive,
under 18 U.S.C. § 844(e), one count for his call to the Houston Police Department
911 Call Center, and the other count for his call to the Calhoun County
Courthouse. On August 3, 2010, Robinson entered into an agreement to plead
guilty to Count One of the Indictment. Under the agreement, the Government
recommended that the district court dismiss Count Two of the Indictment and
agreed to recommend that Robinson receive maximum credit for acceptance of
responsibility, and a sentence within the applicable guideline range.
Robinson’s Presentence Report (“PSR”) assigned a base offense level of
twelve. See U.S.S.G. § 2A6.1(a)(1). The probation officer increased his base
offense level by four levels because the offense resulted in a substantial
disruption of “public, governmental, or business functions or services.” Id.
§ 2A6.1(b)(4)(A).

He also increased Robinson’s base offense level by two

additional levels because Robinson used a minor to commit the offense or assist
in avoiding detection.

See id. § 3B1.4.

The probation officer based this

enhancement on Robinson having his minor stepsister purchase the prepaid
mobile phone that Robinson later used to make the bomb threats. After a
three-level reduction for acceptance of responsibility, see id. § 3E1.1, the PSR
recommended a total offense level of fifteen. Robinson’s total offense level,
combined with a criminal history category of VI, resulted in a sentencing
guidelines range of forty-one to fifty-one months in prison.
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Robinson objected to the PSR’s two-level enhancement for use of a minor.
He argued that he did not “intentionally and purposefully include[ ] the juvenile
in the commission of a criminal offense or in some significant way direct[ ] or
otherwise control[ ] the minor.” Robinson contended that there was no evidence
that the minor knew that the telephone was going to be used to commit a crime
and there was no evidence that he intended to use the telephone to commit a
crime at the time his stepsister purchased it.
At his sentencing hearing, Robinson renewed his objection to the § 3B1.4
enhancement. He argued that the short time span between the time his
stepsister purchased the telephone and the time he made the bomb threats was
insufficient to justify the enhancement. Robinson also asserted that this fact
pattern was distinct from scenarios in which a court typically applies the
enhancement. While noting that it was a “close call,” the district court overruled
the objection because it appeared that Robinson asked the minor to purchase the
phone so that it would not be traced to him. The district court then concluded
that a sentence within the guidelines range was appropriate and sentenced him
to forty-one months in prison and a three-year term of supervised release.
Robinson filed a timely notice of appeal.
II. STANDARD OF REVIEW
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines. United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010)
(per curiam) (citations omitted). We give “considerable deference” to the district
court’s factual findings concerning sentencing factors, and we will only reverse
for clear error. Id. (citations omitted). A factual finding is clearly erroneous only
“if, after reviewing the entire evidence, [we are] left with the definite and firm
conviction that a mistake has been committed.” Id. (quoting United States v.
Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (internal quotation marks omitted)).

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III. DISCUSSION
Robinson argues that the court erred in applying the enhancement for
several reasons. First, he claims that there is no evidence from which to infer
that he intended to make the bomb threats or use the phone to do so at the time
he asked the minor to purchase the phone. Second, he contends that there are
no cases dealing with a similar fact pattern and courts usually apply the
enhancement in situations involving transporting aliens or drugs. Third, he
argues that the enhancement was improper because using a minor to buy the
phone provided no greater advantage in avoiding detection than using an adult.
U.S.S.G. § 3B1.4 requires a two-point upward departure “[i]f the defendant
used or attempted to use a person less than eighteen years of age to commit the
offense or assist in avoiding detection of, or apprehension for, the offense.” The
commentary to the rule states that “‘[u]sed or attempted to use’ includes
directing, commanding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting.” Id. cmt. n.1. The district court noted that
there was sufficient evidence of Robinson’s intent at the time he asked M.R. to
purchase the phone. Based on this, the court found that although applying this
enhancement was a “close call,” and that Robinson could have chosen to use an
adult, he nonetheless decided to ask his minor stepsister to purchase the phone
to avoid detection. Therefore, the enhancement was proper.
Robinson first argues that there is insufficient evidence in the record that
he intended to make bomb threats or to use the phone to make bomb threats at
the time he asked his stepsister to purchase it. He claims that the only evidence
in the record concerning his intent to purchase the phone is that he intended to
use it to keep in contact with his ex-wife and children. Robinson therefore
contends that without any evidence in the record indicating when he decided to
make the bomb threats using the phone, the Government failed to show that he
had the requisite intent to use a minor to avoid detection of the crime.
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The party seeking an adjustment to the sentence level during
sentencing—here, the Government—“must establish the factual predicate
justifying the adjustment.” United States v. Alfaro, 919 F.2d 962, 965 (5th Cir.
1990) (citing United States v. Mueller, 902 F.2d 336, 347 (5th Cir. 1990)). To
meet this burden, the Government must prove “by a preponderance of the
relevant and sufficiently reliable evidence the facts necessary to support the
adjustment.” Id. (citing United States v. Mourning, 914 F.2d 699, 706 (5th Cir.
1990)). Further, “direct evidence [that] conclusively establishes” intent is not
necessary to support the enhancement because “the sentencing court is
permitted to make common-sense inferences from the circumstantial evidence.”
United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006).
Robinson mistakes the preponderance-of-evidence requirement for a
requirement that the Government prove the enhancement by direct evidence.
While the record may lack direct evidence of his intent to make the bomb threats
at the time he asked M.R. to purchase the phone, there is substantial
circumstantial evidence of Robinson’s intent. The PSR establishes that Robinson
did the following: (1) decided at some point before the child-support hearing not
to attend because he was afraid the court would jail him for failure to pay $762;
(2) directed M.R. to purchase a prepaid phone the day before he ultimately
placed the bomb threats on that phone, and gave her money to do so; (3)
contacted M.R. and asked her to leave the phone on the back porch that night;
(4) retrieved the phone and the next morning placed the two bomb threats; and
(5) disposed of the phone by throwing it out of the car window as he drove back
to Louisiana.
The district court could properly infer from these facts that Robinson had
another person purchase the phone to avoid appearing on store surveillance
videos. Further, because Robinson directed M.R. to purchase the phone only
hours before he made the threats, the timing supports an inference that he had
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the requisite intent at the time he made the request. Finally, Robinson’s
decision to purchase a prepaid phone that could not be tracked directly to him
and to dispose of that phone after the call supports the inference that he asked
M.R. to purchase the phone with the specific intent to avoid detection. These are
reasonable inferences that the district court was entitled to make based on the
circumstantial evidence in the record. Therefore, the district court did not
clearly err in finding the record sufficient to support Robinson’s intent when he
asked M.R. to purchase the phone.
Second, Robinson argues that the district court erred in applying the
enhancement because of a lack of factually similar precedent. Robinson cites to
several cases involving the use of a minor in transporting drugs or illegal aliens.
He correctly notes the general rule that has emerged from these cases: “[T]he
defendant must take some affirmative action to involve the minor in the offense
and [ ] ‘[a]bsent other evidence, the mere presence of a minor’ at the scene of a
crime ‘is insufficient to support the application of § 3B1.4.’” Mata, 624 F.3d at
176 (quoting United States v. Molina, 469 F.3d 408, 415 (5th Cir. 2006)). We
have also noted that in dealing with scenarios where the minor is merely present
during the commission of an offense, “[t]he district court should consider
additional circumstantial evidence to determine whether the defendant used the
minor to avoid detection.” Id.
While Robinson is correct that this factual scenario is distinct from those
in which § 3B1.4 is typically applied, it does not follow that its application here
is incorrect. Nothing in the text of § 3B1.4 requires the minor’s presence during
the commission of the crime; only that the defendant “used or attempted to use”
the minor to “assist in avoiding detection.” This case’s differences from drugrunning and alien-smuggling cases where the minor is merely present in a
vehicle actually strengthen the case for the enhancement. Unlike in those cases,
there is no dispute here that M.R. took an affirmative action on behalf of
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Robinson. The Government did not seek to apply the enhancement because of
the passive presence of the minor during the commission of a crime, but because
Robinson directed her to take a specific action. Because there is sufficient
evidence from which to infer that he directed her to purchase the prepaid phone
in order to avoid detection, the cases cited by Robinson are inapplicable.
Robinson’s final argument against the enhancement is also without merit.
He contends that although he asked M.R. to purchase the phone, if his motive
were merely to avoid detection he could have just as easily asked an adult to
purchase the phone. While Robinson is correct that he could have asked an
adult to purchase the phone rather than a minor, he did not. Nothing in the text
of § 3B1.4 supports the argument that the use of the minor must be tied to her
status as a minor. Although in some cases the minor might be used as a decoy
in a way that an adult could not, see Mata, 624 F.3d at 177 (upholding the
enhancement where the minor’s presence in the car was meant to “give the
appearance that the group was traveling as a family unit and to reduce the
likelihood of coming under suspicion for being engaged in criminal conduct”),
this does not a fortiori mean that the use of the minor must always be specific
to her minor status.
Here, the Government presented sufficient circumstantial evidence for the
district court to conclude that (1) Robinson intended to use the phone to make
bomb threats at the time he ordered M.R. to purchase the phone; (2) by using
M.R. to purchase a prepaid phone, he attempted to avoid detection; and (3)
M.R.’s purchase of the phone at Robinson’s direction was a sufficient “use” of a
minor to satisfy §3B1.4.
IV. CONCLUSION
Therefore, because the district court did not err in its decision to give
Robinson a two-level enhancement under §3B1.4, we affirm his sentence.
AFFIRMED.
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