Robinson v. USA

Filing 4

MEMORANDUM AND ORDER: IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Robinson has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 11/29/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DARON D. ROBINSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:16CV00226 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Daron D. Robinson, a person in federal custody. On
July 1, 2015, Robinson pled guilty before this Court to the offense of distribution of
cocaine base, three counts and, on Septemeber 29, 2015, this Court sentenced Robinson
to the Bureau of Prisons for a term of 120 months, the mandatory minimum sentence.
Robinson’s § 2255 motion is fully briefed and ripe for disposition.
I. FACTS
A. The Indictment
On April 16, 2015, a Grand Jury in the Eastern District of Missouri, Southeastern
Division, returned an Indictment against Daron D. Robinson, charging him with three
felony counts of Distribution of a Controlled Substance, in violation of Title 21, United
States Code, § 841(a)(1).1 Doc. # 1. (Case No. 1:15-cr-00057-SNLJ-1.) Robinson was
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Counts I and II provided that Robinson distributed cocaine base, or “crack” cocaine, while Count III provided that
he distributed cocaine, or “powder” cocaine. None of the three counts involved amounts sufficient to trigger to
a statutory mandatory minimum sentence.

arrested and made his Initial Appearance before United States Magistrate Judge Abbie
Crites-Leoni on May 5, 2015. The Federal Public Defender’s office was appointed to
represent Robinson, and Assistant Federal Defender Michael Skrien (“AFD Skrien”)
subsequently filed an Entry of Appearance. Doc. ## 10-11. AFD Skrien appeared
on behalf of Robinson at an arraignment on May 7, 2015, where Robinson entered a plea
of not guilty to the charges. Doc. # 13. Magistrate Judge Crites-Leoni scheduled a
hearing on pretrial motions for June 2, 2015. Doc. # 15.
B. Pretrial Motions
On June 8, 2015, AFD Skrien filed a waiver of Robinson’s right to file pretrial
motions. Doc. # 23. On June 17, 2015, Robinson appeared before Magistrate Judge
Crites-Leoni and waived his right to file pretrial motions in open court. Doc. ## 26-27.
C. Plea Agreement
On July 1, 2015, Robinson appeared with AFD Skrien and plead guilty to all three
counts in the Indictment. Doc. ## 28-29. Robinson and the government reached a plea
agreement that was reduced to writing, setting out the parties’ understandings as to the
disposition of the case. Doc. # 29 (Plea Agreement). In the agreement, the parties
acknowledged the possibility that Robinson may qualify as a Career Offender under
U.S.S.G. § 4B1.1. Pursuant to the agreement, the parties remained free to litigate whether
or not Robinson qualified as a Career Offender. Plea Agreement, p. 6. Further, Robinson
reserved the right to appeal any sentencing issues. Id. This court ordered a Presentence
Report and scheduled a sentencing hearing for September 29, 2015.
D. Presentence Investigation Report
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The United States Probation Office prepared the Presentence Report. Doc. ## 30,
32 (“PSR”). The PSR found that Robinson did indeed qualify as a Career Offender
pursuant to U.S.S.G. § 4B1.1(a). That section provides as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
The term “controlled substance offense,” in turn, is defined under the sentencing
guidelines as:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
The PSR identified two qualifying controlled substance offenses serving as
Career Offender predicates: (1) a conviction from the Circuit Court of Scott County,
Missouri, in Case No. 02CR745171-01, for two counts of sale of a controlled substance;
and (2) a conviction from the Circuit Court of Scott County, Missouri, in Case No. 07SOCR01176-01, for possession of a controlled substance with the intent to distribute. See
PSR, ¶ ¶ 28, 35, and 38. Because Robinson qualified as a Career Offender, the adjusted
offense level was determined to be 32. PSR, ¶ 28. After a three level reduction for
acceptance of responsibility, the total offense level was found to be 29. PSR, ¶ 31. The

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PSR further determined that Robinson’s criminal history category was VI. PSR, ¶ 48.2
Based on a total offense level of 29 and a criminal history category of VI, the
applicable guideline imprisonment range was determined to be 151-188 months. PSR, ¶
75.
Neither party filed objections to the PSR.
E. Sentencing Hearing
Prior to the sentencing hearing, AFD Skrien filed a sentencing memorandum on
behalf of Robinson. See Doc. # 34. In the memorandum, AFD Skrien acknowledged that
the advisory guideline imprisonment range of 151-188 months was correctly calculated.
Although there was no dispute as to the guideline range, AFD Skrien cited a number of
factors which, in his view, supported a sentence below the bottom end of the range. On
September 29, 2015, the parties appeared before this Court for a sentencing hearing.
Robinson was sentenced to concurrent terms of imprisonment of 120 months on
each of the three counts, followed by three years of supervised release. Doc. ## 36-38.
The sentence imposed by this Court was below the bottom end of the applicable guideline
range.
F. Appeal
Robinson did not appeal his conviction or sentence.
G. Petition for Post-Conviction Relief Pursuant to § 2255
On August 31, 2016, Robinson filed a motion under 28 U.S.C. § 2255, claiming
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Pursuant to U.S.S.G. Section 4B1.1(b), the criminal history category for a Career Offender is VI. Additionally,
Robinson had accumulated 18 criminal history points. Thus, Robinson’s criminal history category would have
been VI even without the Career Offender enhancement. See PSR, ¶ 48.

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that the Career Offender enhancement was improperly applied. Robinson’s claim is
without merit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim alleging ineffective assistance of counsel, the
Movant has the burden of proving his or her claims for relief by a preponderance of the
evidence. The Supreme Court of the United States set forth the standard to apply in such
cases in Strickland v. Washington, 466 U.S. 668 (1984). There, the Supreme Court held
that a Movant must plead and prove two related but independent issues. First, the
defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland, 466 U.S., at 687. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, i.e., a trial
whose result is reliable. Id.
Regarding the first prong of the Strickland test, the proper standard for attorney
performance is that of reasonably effective assistance. As the Supreme Court explained,
“[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance,
the defendant must show that counsel’s representation fell below an objective standard of
reasonableness.” Id., at 687-88. Recognizing the complexity and variety of issues that
defense counsel must confront and address in any given case, the Supreme Court refused
to adopt a standard that would implement an exhaustive set of detailed guidelines to
evaluate attorney performance.

Instead, the proper measure of attorney performance is
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simply reasonableness under prevailing professional norms. Id. The Supreme Court
instructed:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.

Strickland, 466 U.S., at 689 (citations and internal quotation marks omitted). The
Supreme Court further instructed that a reviewing court “should recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id., at 690.
The second prong of the Strickland test requires a Movant to prove that he or she
was prejudiced by counsel’s deficient performance. An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. Id., at 691. The Supreme Court
observed that “not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.” Id., at 693. Thus, it is not
enough for the defendant to show that errors had some conceivable effect on the
outcome of the proceeding. Rather, the defendant “must show that there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id., at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Ibid.
In evaluating an ineffectiveness claim, a reviewing court is not required to address
both prongs of the Strickland test if the defendant makes an insufficient showing on one.
As the Supreme Court instructed, a reviewing court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. “The object of an ineffectiveness claim
is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, … that course should be followed.”
Id., at 697. Thus, if a reviewing court determines the alleged errors would have had no
impact on the result of the proceeding, the claim of ineffectiveness must fail.
The Eighth Circuit has described the two-fold Strickland test as follows:
“[w]hether counsel’s performance was in fact deficient and, if so, whether the defendant
was prejudiced by the inadequate representation. If we can answer ‘no’ to either question,
then we need not address the other part of the test.” Fields v. United States, 201 F.3d
1025, 1027 (8th Cir. 2000).
When evaluating counsel’s performance, the court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S., at 689. Counsel’s performance is considered
objectively, and gauged “whether it was reasonable ‘under prevailing professional
norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at 1027 (quoting
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Strickland, 466 U.S., at 688). Counsel’s challenged conduct is viewed as of the time of
his representation and “we avoid making judgments based on hindsight.” Fields, 201
F.3d at 1027. Again, a reviewing court’s “scrutiny of counsel’s performance must be
highly deferential.” Strickland, 466 U.S., at 689.
Need for evidentiary hearing and burden of proof
A motion filed under 28 U.S.C. § 2255 should be denied without an evidentiary
hearing when the court records conclusively show that the movant is not entitled to relief.
The statute provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any
annexed exhibits in the prior proceedings in the case that the movant is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.

When a petition is brought under Section 2255, the petitioner bears the burden of
establishing the need for an evidentiary hearing. In determining whether petitioner is
entitled to an evidentiary hearing the court must take many of petitioner’s factual
averments as true, but the court need not give weight to conclusory allegations, selfinterest and characterizations, discredited inventions, or opprobrious epithets. United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a
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Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is
conclusively refuted as to the alleged facts by the files and the records of the case. Id., at
225-26. See also United States v. Robinson, 64 F.3d 403 (8th Cir. 1995); Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995).
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. United States v. Oldham, 787 F.2d 454, 457
(8th Cir. 1986). In exercising that discretion, the district court must determine whether
the alleged facts, if true, would entitle the movant to relief. Payne v. United States, 78
F.3d 343, 347 (8th Cir. 1996). When all the information necessary for the court to make a
decision with regard to claims raised in a 2255 motion is included in the record, there is
no need for an evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir.
1993). An evidentiary hearing is unnecessary where the files and records conclusively
show petitioner is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th
Cir. 1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
III. DISCUSSION
Introduction
In his motion under 28 U.S.C. § 2255, Robinson raises several allegations of
ineffective assistance of counsel related to his classification as a Career Offender under
U.S.S.G. § 4B1.1. Robinson’s primary complaint is that AFD Skrien rendered ineffective
assistance of counsel at his sentencing hearing by failing to object to his status as a
Career Offender. More specifically, Robinson maintains that his conviction in Case No.
02CR745171-01 from the Circuit Court of Scott County, Missouri, did not qualify as a
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“serious controlled substance offense” because it carried a maximum sentence of less
than ten (10) years imprisonment. See Motion to Vacate, p. 7-9. Robinson also
generally claims that the elements of this particular conviction did not meet the generic
definition of a “controlled substance offense” under U.S.S.G. 4B1.1. Id., at 9-10.
Robinson further complains that “the only evidence in the record establishing that his two
prior ‘controlled substance convictions’ comes from his PSR, to which he did not object.”
Id., at 10. Robinson proceeds to assert that “a court is precluded from considering the
summary of facts provided in the presentence investigation report in order to classify a
defendant as a Career Offender.” Id. Finally, Robinson claims that a jury was required
to make a finding beyond a reasonable doubt that he had been convicted of the predicate
offenses. Id., at 10-14. All of Robinson’s claims are without merit.
As discussed more fully below, Robinson did not object to the PSR’s
determination that he was a Career Offender. Accordingly, it was unnecessary for the
government to introduce documentary evidence at the sentencing hearing to establish that
he qualified as such. Nonetheless, the government has attached the relevant certified
records of Robinson’s state court convictions to its Response:
1. “Attachment A” are certified records from the Circuit Court of Scott Count
Missouri, in Case No. 02CR745171-01. These records reflect that on February
27, 2003, Robinson pleaded guilty to two counts of an Amended Information.
Counts I and II both set forth that Robinson committed the class
C felony of sale of a controlled substance, in violation of Mo. Rev. Stat. §
195.211, in that he “sold marijuana, a controlled substance,” to a confidential
informant. Both of these offenses carried a maximum penalty of seven (7)
years imprisonment. Robinson was initially placed on probation. On June 12,
2008, probation was revoked and he was sentenced to serve concurrent seven
(7) year sentences in the Missouri Department of Corrections.
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2. “Attachment B” are certified records from the Circuit Court of Scott County,
Missouri, in Case No. 07SO-CR01176-01. These records reflect that on June
12, 2008, Robinson pleaded guilty to Count II of an Information which set
forth that he committed the class B felony of possession of a controlled
substance with intent to distribute, in violation of Mo. Rev. Stat. § 195.211.
The charging document states that Robinson “with the intent to distribute,
possessed over 5 grams of marijuana, a controlled substance, knowing of its
presence and nature.” This offense carried a maximum penalty of fifteen (15)
years imprisonment. Robinson was sentenced to serve ten (10) years in the
Missouri Department of Corrections.

A review of these records conclusively establishes that Robinson was properly
classified as a Career Offender. AFD Skrien was not ineffective in failing to object to
this classification.
Robinson was properly classified as a Career Offender
A. There is no requirement under the sentencing guidelines that a “controlled
substance offense” must carry a maximum sentence of ten (10) years or more

Robinson contends that his conviction in Case No. 02CR745171-01 (Attachment
A) does not qualify as a Career Offender predicate because the maximum penalty for that
offense was seven (7) years imprisonment. Robinson is confusing the requirements of
Career Offender predicates under the sentencing guidelines with the requirements of
Armed Career Criminal Act (ACCA) predicates under 18 U.S.C. § 924(e). Although
these two provisions have some similarities, there are important and critical differences
between them. Indeed, the sentencing guidelines expressly caution that there are
important distinctions between the two. See U.S.S.G. § 4B1.4, cmt. n. 1. See also United
States v. Bynum, 669 F.3d 880, 886 (8th Cir. 2012) (recognizing that the sentencing
guidelines expressly caution that the ACCA’s definition of “serious drug offense” is not
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identical to the definition of “controlled substance offense” for Career Offender
purposes under § 4B1.2).
One significant difference – and the one relevant here – is that an ACCA predicate
drug conviction must be for an offense having a potential maximum punishment of at
least ten years. However, there is no such requirement to qualify as a Career Offender
under the sentencing guidelines.
The Career Offender guidelines are found at U.S.S.G. § 4B1.1(a). That section
provides as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
The term “controlled substance offense,” in turn, is defined under the sentencing
guidelines as:
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b) (emphasis added).
The Armed Career Criminal Act, on the other hand, provides more stringent
requirements. 18 U.S.C. § 924(e)(1) mandates that a person convicted of violating 18
U.S.C. § 922(g)(1) (felon in possession of a firearm) is subject to an enhanced sentence –
including a mandatory minimum sentence of fifteen years imprisonment - if such person
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has three or more convictions for either “violent felonies” or “serious drug offenses.” A
“serious drug offense” is defined, in relevant part, as a conviction “for which a maximum
term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §
924(e)(2)(A)(ii).
Robinson is quite correct that his conviction in Case No. 02CR745171-01 would
not qualify as a predicate “serious drug offense” under the ACCA. That particular
provision, however, was simply not implicated in his case. Rather, Robinson was
classified as a Career Offender under the sentencing guidelines. Again, a “controlled
substance offense” pursuant to U.S.S.G. § 4B1.2(b) includes offenses “punishable by
imprisonment for a term exceeding one year ….” (emphasis added). Robinson’s
conviction was punishable by up to seven (7) years. AFD Skrien did not render
ineffective assistance of counsel by failing to object on this issue.
B. Robinson’s convictions for violating Mo. Rev. Stat. § 195.211 categorically
qualified as “controlled substance offenses” under the sentencing guidelines
Robinson’s convictions at issue were for violations of Mo. Rev. Stat. § 195.211.
That statute provides:
[i]t is unlawful for any person to distribute, deliver, manufacture, produce, or
attempt to distribute, deliver, manufacture or produce a controlled substance or to
possess with intent to distribute, deliver, manufacture, or produce a controlled
substance.
Mo. Rev. Stat. § 195.211.1.33

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A violation of this statute is generally a class B felony punishable by up to fifteen (15) years
imprisonment. Mo. Rev. Stat. § 195.211.3. However, if the offense involves the distribution of
not more than five grams of marijuana, it is considered a class C felony punishable by up to seven
(7) years imprisonment. Mo. Rev. Stat. § 195.211.4.

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This definition is consistent with the definition of a “controlled substance offense”
under the sentencing guidelines, which includes:
an offense … that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). There can be no dispute that a conviction for violating Mo. Rev.
Stat. § 195.211 categorically qualifies as a “controlled substance offenses” as that term is
defined in the sentencing guidelines. See, e.g., United States v. Twiggs, 678 F.3d 671
(8th Cir. 2012) (conviction for “possession with intent to distribute” pursuant to Mo. Rev.
Stat. § 195.211 qualifies as a “controlled substance offense” under the sentencing
guidelines); United States v. Brown, 408 F.3d 1016, 1018 (8th Cir. 2005) (finding that
violations of Mo. Rev. Stat. § 195.211 qualified as a “serious drug offenses” for purposes
of ACCA).
C. The government was under no obligation to submit conviction records in the
absence of an objection to the PSR
Robinson further complains that “the only evidence in the record establishing that
his two prior ‘controlled substance convictions’ comes from his PSR, to which he did not
object.” Motion to Vacate, at p. 10. Robinson proceeds to assert that “a court is precluded
from considering the summary of facts provided in the presentence investigation report in
order to classify a defendant as a Career Offender.” Id. Robinson is correct that facts
contained in a PSR would be insufficient, standing alone, to establish that prior
convictions qualified as Career Offender predicates. But, as Robinson concedes, he failed
to object to the PSR. Because there were no objections to Robinson’s classification as a
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Career Offender, it was unnecessary for the government to introduce certified conviction
documents into the record at the sentencing hearing. See, e.g., United States v. Sykes,
809 F.3d 435, 438 (8th Cir. 2016); United States v. Stymiest, 581 F.3d 759, 768 (8th Cir.
2009) (government need not introduce documentary evidence at sentencing hearing if
defendant fails to object to factual statements in PSR establishing predicate convictions).
To the extent Robinson is now alleging that AFD Skrien was ineffective in failing
to object to the PSR, the government, as noted, has attached the relevant records from the
Circuit Court of Scott County to its response. These records clearly demonstrate that
Robinson qualified as a Career Offender. Any objections made by AFD Skrien would
certainly have been meritless.
D. Evidence of prior convictions are not required to be submitted to a jury
Finally, Robinson contends that a jury was required to make a finding beyond a
reasonable doubt that he had been convicted of the Career Offender predicate offenses. It
is well-settled, however, that evidence of prior convictions need not be determined by a
jury. See, e.g., Descamps v. United States, 133 S.Ct. 2276, 2288 (2013) (“other than the
fact of a prior conviction, any fact that increases the penalty for a crime … must be
submitted to a jury, and proved beyond a reasonable doubt.”) (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000)); See also United States v. Thornton, 766 F.3d 875, 879
(8th Cir. 2014) (recognizing that enhancements based on the fact of a prior conviction are
an exception to the general rule that facts increasing the prescribed range of penalties
must be presented to a jury).
CONCLUSION
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The records and files in this case conclusively establish that Robinson is not
entitled to relief. Therefore, Robinson’s Motion will be denied without an evidentiary
hearing.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Robinson has not made a substantial showing of the denial of a
federal constitutional right.
Dated this 29th day of November, 2016.

______________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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