     Case: 11-30950     Document: 00511936534         Page: 1     Date Filed: 07/27/2012




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

                                                                            FILED
                                                                            July 27, 2012
                                     No. 11-30950
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTWAIN ROBINSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CR-145-1


Before PRADO, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Antwain Robinson was convicted by a jury of one count of possession with
intent to distribute 50 grams or more of a substance containing crack cocaine.
The district court imposed a sentence of 360 months in prison, within the
applicable guidelines range. On appeal, Robinson asserts that his sentence is
procedurally unreasonable because the district court erroneously believed that
the Sentencing Guidelines were mandatory and because the district court clearly
erred in assessing Robinson’s criminal history category. We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30950    Document: 00511936534       Page: 2   Date Filed: 07/27/2012

                                   No. 11-30950

      Because Robinson did not object to the procedural unreasonableness of his
sentence in the district court, we review for plain error only. See United States
v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To establish such an error,
Robinson must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but shall do
so only if it “seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Id.
      A district court commits procedural error by treating the Guidelines as
mandatory rather than advisory and by relying on clearly erroneous facts. Gall
v. United States, 552 U.S. 38, 51 (2007). Although the district court stated it
lacked a “choice” in sentencing Robinson in light of the Guidelines range, when
read in context, the statement indicated the court’s belief that a Guidelines
sentence was appropriate in light of the drug quantity involved and Robinson’s
criminal history rather than an assertion that the Guidelines were mandatory.
      Additionally, Robinson has not shown that the district court relied on
erroneous facts regarding his criminal history; he instead is challenging the
court’s conclusion that the criminal history was “shocking” or “extensive.” Under
the circumstances, Robinson has not established a clear or obvious error that
affects his substantial rights. See Puckett, 556 U.S. at 135.
      The judgment of the district court is AFFIRMED.




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