                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2006

USA v. Robinson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1625




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                         No. 05-1625


                           UNITED STATES OF AMERICA

                                             v.

                               HERBERT ROBINSON,
                                  a/k/a PAC MAN

                                                  Appellant


                     On Appeal the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. Crim. No. 95-cr-00252)
                    The Honorable Juan R. Sanchez, District Judge


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2006

    Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,* District Judge

                               (Filed:    March 16, 2006)



                                         OPINION


ALDISERT, Circuit Judge.



*
 The Honorable Joseph H. Rodriguez, Senior District Judge, United States District Court
for the District of New Jersey, sitting by designation.
       Herbert Robinson (a/k/a “Pac Man”) appeals his five-year sentence that was

imposed upon revocation of his supervised release pursuant to 18 U.S.C. § 3583(e). On

appeal, Robinson argues that the District Court, in sentencing him, committed plain error

because it did not adequately consider and analyze those factors listed at 18 U.S.C. §

3553(a) and the policy statements found in Chapter 7 of the Sentencing Guidelines. He

also argues that his sentence, which is to run consecutive to the four- to 12-year state

sentence he is currently serving, is unreasonable. See United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005) (establishing reasonableness review for sentences). Because

Robinson argues that his sentence was “imposed in violation of law” we have jurisdiction

to review the sentence imposed pursuant to 18 U.S.C. § 3742(a)(1). We will affirm.

                                              I.

       The parties are familiar with the facts and proceedings in the District Court, so we

will only briefly revisit them here. On October 16, 2005, Robinson pled guilty in the

District Court for the Eastern District of Pennsylvania to six counts of a superceding

indictment charging him with conspiring to distribute cocaine base in violation of 21

U.S.C. § 846 and other related offenses. Robinson’s original Guidelines sentence was

calculated to be between 384 and 465 months, but a downward departure was granted

because he pled guilty to the charged offenses and agreed to cooperate with the

government. Accordingly, on May 22, 1996, following the grant of downward departure,


                                              2
the Court sentenced Robinson to 90 months imprisonment and eight years of supervised

release. He began serving his supervised release on September 18, 2002.

       In June 2003, the Court modified Robinson’s sentence and required his supervised

release to then include a six-month term of home confinement with electronic monitoring.

This modification was imposed because, in violation of the terms of his release, Robinson

had illegally obtained a New Jersey driver’s license and then lied to his probation officer

when initially questioned about it.

       In December 2003, his period of supervised release was again modified by the

Court to include a seven-month term at a community treatment center. This modification

was prompted by Robinson being unaccounted for during a three-hour period of his home

confinement and again lying to his probation officer when initially questioned about his

activities.

       On March 4, 2004, the incident spurring the recent revocation of Robinson’s term

of supervised release occurred. On that date, Robinson was arrested while possessing

28.9 grams of crack cocaine and $4,917. He was also operating a 2000 Lexus. He was

charged with: resisting arrest; flight to avoid prosecution; unlawful use of a

communication facility; possession of a controlled substance; and manufacture, delivery

and possession of a controlled substance with intent to deliver. Robinson was later

convicted of these offenses in Pennsylvania state court and was sentenced to four to

twelve years in prison. This incident constituted a Grade A violation of his supervised



                                              3
release.1

       On February 17, 2005, a revocation hearing was held to consider Robinson’s

violation of the terms of his supervised release. At the hearing, Robinson admitted to the

violations. Then, although acknowledging that the Court was not bound by the

recommended sentencing range outlined in Chapter 7 of the Guidelines, he argued for a

sentence of between 24 and 30 months, calculated pursuant to U.S.S.G. § 7B1.4, to run

concurrently with the state sentence he was serving.2 He also argued that the five-year

consecutive sentence recommended by the government was “too much” and that,

pursuant to 18 U.S.C. § 3553(a), this sentence was “certainly more than necessary” to

accomplish the enumerated statutory factors. No other legal arguments were raised by

Robinson.

       On February 18, 2005, after giving consideration to the parties’ arguments, the

Court revoked Robinson’s supervised release and sentenced him to 60 months


1
   Robinson’s 2004 state conviction is a Grade A violation of the terms of his supervised
release because it is “conduct constituting . . . a federal, state, or local offense punishable
by a term of imprisonment exceeding one year that . . . is a controlled substance offense . .
..” U.S.S.G. § 7B1.1(a)(1). Not to be confused with a class A felony, which is a
classification of the underlying crime for which the defendant was sentence to supervised
release, a Grade A violation is relevant under U.S.S.G. § 7B1.4 in determining the
recommended sentencing range for a defendant who has violated the terms of his
supervised release.
2
  Pursuant to U.S.S.G. § 7B1.4, the recommended range of punishment for Robinson’s
Grade A violation of the terms of his supervised release was 24 to 30 months. Per §
7B1.4, this sentencing range was calculated using a criminal history category of I, which
was the category applicable to Robinson at the time he was originally sentenced to his
term of supervision in 1996.

                                              4
imprisonment to run consecutively to his four- to 12-year state sentence. This five-year

sentence was the maximum allowed under 18 U.S.C. § 3583(e)(3) for a violation of the

terms of supervised release.3 This appeal followed.

                                               II.

       Because, at sentencing, Robinson neither challenged the adequacy of the District

Court’s analysis of the relevant sentencing factors of U.S.S.G. § 7B1.4 or 18 U.S.C. §

3553(a), nor objected that the sentence was unreasonable, we will review these

contentions for plain error. See United States v. Couch, 291 F.3d 251, 252-253 (3d Cir.

2002). Under this standard “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s]

substantial rights.’” United States v. Olano, 507 U.S. 725, 731-732 (1993). “The

deviation from a legal rule is ‘error,’ and an error is ‘plain’ if it is ‘clear’ or ‘obvious.’”

United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998) (quoting Olano, 507 U.S. at

732-734). An error affects substantial rights if it is prejudicial, i.e., “affected the outcome



3
  Upon finding that Robinson violated a condition of his supervised release, the Court,
after considering the factors set forth in §§ 3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7), was
permitted to revoke his term of supervised release and require him to serve in prison “all
or part of the term of supervised release authorized by statute for the offense that resulted
in such term of supervised release.” 18 U.S.C. § 3583(e)(3). Five years, however, was
the maximum prison term that the Court could impose upon Robinson because it is
undisputed that his original 1995 offense was a class A felony. Id. (“A defendant whose
term is revoked under this paragraph may not be required to serve on any such revocation
more than 5 years in prison if the offense that resulted in the term of supervised release is
a class A felony . . ..”). In pronouncing sentence under this statutory mandate, the Court
was to look to the advisory provisions of U.S.S.G. § 7B1.4 for guidance, but it was not
bound to impose a sentence within the recommended Guidelines range. See United States
v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997) (per curiam).

                                                5
of the district court proceedings.” Id. at 251 (quoting Olano, 507 U.S. at 734).

Ultimately, we review a sentencing decision for reasonableness. Booker, 125 S. Ct. at

767.

                                            III.

       Robinson contends that because the Court did not engage in a proper “analogic

reasoning or ratcheting process” to determine the degree of departure that should be taken

from the sentencing range recommended at U.S.S.G. § 7B1.4, it was therefore error for

the Court to impose the maximum sentence allowed by statute. He then argues that

because the record is devoid of such an analysis, the pronounced sentence is

unreasonable. We disagree. First, the provisions in Chapter 7 of the Sentencing

Guidelines are advisory, and we have never required absolute obeisance to their strictures.

Second, the factors listed at § 3553(a) are to be considered by sentencing courts, nothing

more. Finally, in light of Robinson’s criminal history and the severity of his 2004

offense, the statutory maximum five-year consecutive sentence is a reasonable

punishment.

       Even before the Supreme Court made the Sentencing Guidelines advisory, See

Booker, 125 S. Ct. at 764-765, this Court had held that the sentencing ranges set forth at

U.S.S.G. § 7B1.4 are merely advisory. See Schwegel, 126 F.3d at 552. In fact, the

provisions of Chapter 7 of the Sentencing Guidelines are no more than policy statements.

U.S.S.G., Ch. 7, Part A(1); United States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991).

In Blackston, this Court stated that the Chapter 7 policy statements are “merely advisory”

                                             6
and that “[c]onsistent with the ‘advisory’ nature of the Chapter 7 policy statements, the

district court, in sentencing a defendant whose supervised release has been revoked, is

required only to ‘consider . . . any pertinent policy statement issued by the Sentencing

Commission . . . that is in effect on the date the defendant is sentenced.’” Blackston, 940

F.2d at 893 (quoting 18 U.S.C. § 3553(a)(5)) (emphasis in original).

       In addition to mandating consideration of the ranges set forth at U.S.S.G. § 7B1.4,

Congress also directed sentencing courts to “consider” several of the factors listed at §

3553(a) in setting sentence for a violation of supervised release. 18 U.S.C. § 3583(e).

These additional factors to be considered include:

       (1) the nature and circumstances of the offense; (2) the history and
       characteristics of the defendant; (3) the need to afford adequate deterrence to
       criminal conduct; (4) the need to protect the public from further crimes of the
       defendant; and (5) the need to provide the defendant with appropriate
       treatment.

Blackston, 940 F.2d at 893 (quoting 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D) &

(a)(4)–(7)).

       In Blackston, this Court discussed how a sentencing court must treat § 7B1.4 and §

3553(a):

       When working with policy statements (as opposed to guidelines), the district
       court is not required, in considering revocation of supervised release, to justify
       its decision to impose a sentence outside of the prescribed range (in this case
       two years) by finding an aggravating factor that warrants an upward departure
       under 18 U.S.C. § 3553(b). In fact, there is no requirement that the district
       court make specific findings with respect to each of the section 3553(a) factors
       that it considered. See United States v. Graves, 914 F.2d 159, 160 (8th Cir.
       1990). At the time of sentencing, the district court simply must state on the
       record its general reasons under section 3553(a) for rejecting the Chapter 7

                                               7
       policy statements and for imposing a more stringent sentence. See 18 U.S.C.
       § 3553(c); see also United States v. Lockhard, 910 F.2d 542, 546 (9th Cir.
       1990).

940 F.2d 877, 893-894 (emphasis added). In a recent post-Booker opinion, this Court

reiterated that § 3553(a) does not require that findings be made on each factor. United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Rather, the record must show that the

court meaningfully considered those factors and that it addressed any argument raised by

a party that has “recognized legal merit.” Id. at 329. Accordingly, unlike the more

elaborate analytic process we require of sentencing courts when deciding on a degree of

upward departure for the initial sentencing of those who have violated a federal criminal

statute, see United States v. Kikumura, 918 F.2d 1084, 1110-1120 (3d Cir. 1990), we

require nothing more than a meaningful consideration of the Chapter 7 policy statements

and the factors listed at § 3553(a) when a court is imposing sentence upon a defendant

who has violated the terms of his supervised release.4


4
  Robinson argues that when deviating from the recommended Chapter 7 sentence, a
sentencing court must follow the strictures we laid down in Kikumura. Therein, we stated
that in order to determine the appropriate degree of upward departure warranted by a
defendant, a court must analogize the defendant’s conduct to various Guidelines
provisions similarly punishing such conduct and then use the sentence those guidelines
would recommend to guide the calculation of departure. Kikumura, 918 F.2d at 1112-
1113. Kikumura, however, did not deal with Chapter 7 of the Guidelines. Rather, we
were concerned with regulating the methodology behind upward sentencing departures so
we could ensure that Congress’ goal for the Guidelines, the elimination of sentencing
disparity, would be met. Id. at 1110. Just one year after Kikumura was decided, this
Court issued Blackston, and nowhere in Blackston did we state that we require sentencing
courts imposing sentence upon those who have violated the terms of their supervised
release to engage in the Kikumura methodology. Rather, we emphasized time and again
that Chapter 7, as an advisory statement of sentencing policy, was different from the other

                                             8
                                             IV.

       In the instant case, the sentencing court was cognizant of its statutory obligation to

consider the Chapter 7 policy statements and the factors listed at § 3553(a). The record

also indicates that it duly considered the ranges set forth at § 7B1.4 and the factors of §

3553(a):

       THE COURT: I find that you have committed a grade A violation with your
       guilty plea to possessing a controlled substance with intent to deliver for which
       you were sentenced to serve a period of incarceration of not less than four
       years to not more than twelve years in a state correctional facility. I have also
       considered the guidelines revocation table which suggests a sentence of 24 to
       30 months imprisonment for a grade A violation in your criminal history
       category of Roman numeral I.

               I do note but do not adopt your attorney’s argument that the guidelines
       revocation table already incorporates punishment for the seriousness of your
       conduct. I have also considered Section 3583 of the code which allows me to
       impose a sentence of five years imprisonment since the conduct which resulted
       in the supervised release was a class A felony.

              I am charged under the guidelines to impose a sentence sufficient but
       not greater than necessary to reflect upon the seriousness of the offense, to
       promote respect for the law, and to provide just punishment for the offense, to
       afford adequate deterrence to criminal conduct, to protect the public from
       further crimes by you, and to provide you with the needed educational or
       vocational training, medical care, all the correctional treatment in the most
       effective manner.

(Sentencing Transcript, app. at 48.)

       The record also shows that the Court was genuinely concerned with the application


chapters of the Guidelines which were at issue in Kikumura. See Blackston, 940 F.2d at
893. Accordingly, because Robinson’s case involves a different section of the
Guidelines, Chapter 7, we do not require the same level of analysis when departing from
the Guidelines’ recommended sentence.

                                              9
of those factors to Robinson’s case:

       THE COURT: You are pointing me to 3553(a) and arguing that the sentence
       to be imposed should be sufficient but not greater than necessary to
       accomplish the goals as stated in the sentencing goals, promote respect for the
       law and rehabilitation needs of the defendant. . . . The record here however
       shows no respect for the law and no regard for or not amenability [sic] to
       rehabilitation given the two modifications and opportunity that he was given.
       . . . I mean, the record is not an impressive one, and on the contrary, it says that
       he has no respect or regard for the law, lies every time he gets in trouble,
       doesn’t comply with conditions. So how would you argue to me that under that
       section, the five years may not be sufficiently necessary to accomplish those
       goals?

(Sentencing Transcript, app. at 31.)

       Notwithstanding the calls for leniency, however, the Court could not escape

Robinson’s recidivistic history, and so found that a third chance was not in order:

       THE COURT: Okay. Let me basically tell Mr. Robinson that you stand here
       before me as a young man who has had three opportunities to take control of
       your life. In the first instance, you had a lenient sentence, home confinement
       after you broke two of the conditions of supervised release and break the law
       in obtaining a New Jersey’s driver’s license, and three was placed at a
       residence in a halfway house, and nevertheless, you disregarded the terms of
       home confinement.

              Each time the Government gave you an opportunity to straighten up
       your life, you squandered that opportunity. You, Mr. Robinson, threw away
       basically each opportunity and you are in front of me here through nobody’s
       fault but your own.

              I have carefully considered your plea for time with your daughters and
       your regret at your current situation. The time for remorse, however, was 1996
       or 2003 or 2004. I think now is a bit late.

(Sentencing Transcript, app. at 46-47.)

       Accordingly, after considering all the relevant factors surrounding Robinson’s


                                               10
sentencing,5 the Court found that leniency was not merited in Robinson’s case and

pronounced the statutory maximum five-year consecutive sentence in lieu of the 24- to

30-month sentence recommended by the Guidelines. The Court couched this harsh

sentence in the following reasons: “To reflect the seriousness of [Robinson’s] offense, to

deter criminal conduct, to protect the public, and to give [him] ample time to take

advantage of the prison rehabilitative programs.” (Sentencing Transcript, app. at 48.)

       The record thus indicates that the District Court demonstrated meaningful

consideration of the policy statements of Chapter 7 and the factors of § 3553(a).

Accordingly, we do not agree with Robinson’s contention that the Court failed to

adequately consider the advisory policy factors of Chapter 7 and the factors listed in §

3553(a). Moreover, we also conclude that the sentence is reasonable, both in its length

and nature and by virtue of the process by which it was imposed. We therefore conclude

that the District Court did not plainly err in imposing sentence.

                                             V.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. We will affirm the sentence of the District Court.

_____________________


5
  We also note that, recognizing the gravity of the instant sentencing proceeding, Judge
Sanchez specifically stated that he did not believe it fair for him to make such a decision
in a mere 15-minute recess. (Sentencing Transcript, app. at 41-42.) Following oral
argument on Robinson’s sentencing, Judge Sanchez then requested that the parties return
the next day so that he could consider Robinson’s case at greater length before imposing
sentence. Id.

                                             11
