                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0537n.06
                            Filed: August 1, 2006

                                            No. 03-5852

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
MARC ANTONIO ROBINSON,                            )    WESTERN DISTRICT OF KENTUCKY
                                                  )
       Defendant-Appellant.                       )



       Before: GILMAN and COOK, Circuit Judges; DOWD, District Judge.*


       COOK, Circuit Judge. A one-count indictment charged Marc Robinson with being a felon

in possession of a firearm, see 18 U.S.C. § 922(g), and a jury convicted him after a trial in which he

stipulated to his convicted-felon status. Robinson maintains that after his trial he discovered that

the predicate felony cited in the indictment was in fact a misdemeanor. On appeal, he argues that

the lack of a predicate felony renders him “actually innocent” of the felon-in-possession charge. He

asks this court to set aside his stipulation and reverse his conviction. He also raises a Booker

challenge. Because the record does not demonstrate that Robinson’s stipulation worked a manifest

injustice, we affirm his conviction, but we vacate his sentence and remand for resentencing in light

of Booker.



       *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 03-5852
USA v. Robinson


                                                  I


       As Kentucky police officers attempted to stop the car that Robinson was driving, they

observed someone throw a gun from the passenger-side window. The officers arrested Robinson,

and a grand jury indicted him for knowingly possessing a firearm after “having been previously

convicted in Milwaukee County Circuit Court, Milwaukee, Wisconsin, . . . of the crime of

endangering safety, a felony offense.” Robinson pleaded not guilty and elected to represent himself.

At trial, Robinson stipulated to having been convicted of a felony and repeatedly admitted to his

status as a convicted felon. He advanced the theory that the gun belonged to his passenger rather

than to him.


       Robinson claims that, shortly after the jury convicted him, he discovered that the felony

named in the indictment—endangering safety—was actually a misdemeanor but was erroneously

entered as a felony by the state court fourteen years earlier. He brought a “Motion to Dismiss,”

which the district court treated as a motion for a new trial and denied. The court sentenced him to

120 months of imprisonment and three years of supervised release. Robinson appeals, arguing that

his conviction should be reversed and that, in any event, he should be resentenced in light of Booker.


                                                  II


                                     A. Robinson’s Stipulation




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No. 03-5852
USA v. Robinson


       Robinson asks this court to relieve him from the effects of his stipulation. He does not

dispute that he has multiple felony convictions, but argues that the indictment in this case relied

upon only the Milwaukee County conviction. According to Robinson, the Milwaukee County

Circuit Court’s judgment mistakenly listed the conviction as a felony and, in September 2003 (after

sentencing in this case), the state court recognized its error and issued an amended judgment altering

his conviction. The new judgment reflects a conviction for the misdemeanor of reckless use of a

weapon. This amended judgment, Robinson contends, requires us to set aside his stipulation

because it eliminates his predicate felony conviction and renders him “actually innocent” of the

felon-in-possession offense.


       “[S]tipulations entered into freely and fairly are not to be set aside except to avoid manifest

injustice.” Fairway Constr. Co. v. Allstate Modernization, Inc., 495 F.2d 1077, 1079 (6th Cir.

1974); see also Estate of Quirk v. Comm’r, 928 F.2d 751, 759 (6th Cir. 1991) (“[W]hen a party

wants to waive an argument or issue that might otherwise be litigated, the waiver can be

accomplished by a stipulation . . . . [I]f parties could challenge their prior stipulations at will,

stipulations would lose much of their purpose.”).


        Even if Robinson is correct that the Milwaukee court amended its judgment after his

conviction and sentence in this case, we perceive no manifest injustice in holding Robinson to his

stipulation. We have consistently held that “[t]he defendant’s status on the date of the offense

controls whether the felon in possession laws have been violated.” United States v. Olender, 338



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No. 03-5852
USA v. Robinson


F.3d 629, 636 (6th Cir. 2003) (emphasis added) (holding that the district court did not abuse its

discretion in denying appellant’s motion for a new trial on felon-in-possession charge where, after

the federal trial, the state court ruled that the predicate conviction had been erroneously entered as

a felony instead of a misdemeanor and amended its judgment accordingly). We have held in similar

circumstances that “any ruling which [the defendant] managed to obtain in state court subsequent

to his commission of, and federal conviction for, the offense of felon in possession of ammunition,

is irrelevant.” Id. at 631; see also United States v. Settle, 394 F.3d 422, 430-31 (6th Cir.), vacated,

125 S. Ct. 2560, reinstated in relevant part, 414 F.3d 629 (6th Cir. 2005) (affirming denial of post-

guilty-plea motion to dismiss indictment where state court entered nunc pro tunc order declaring

predicate felony void ab initio because of defendant’s juvenile status at time of conviction). Thus

Robinson’s stipulation worked no manifest injustice, particularly in light of his multiple felony

convictions.


                                        B. Sentencing Error


       Robinson also challenges his sentence as imposed under a mandatory-Guidelines regime.

The Government concedes that Robinson must be resentenced in light of United States v. Booker,

543 U.S. 220 (2005). We agree, and we vacate Robinson’s sentence and remand for resentencing.


       We are, however, unpersuaded by Robinson’s argument that Booker prohibits the sentencing

judge from applying Guidelines enhancements based on judge-found facts. Because the Guidelines

are no longer mandatory, the district court may, in calculating the Guidelines-recommended

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No. 03-5852
USA v. Robinson


sentencing range, apply enhancements based on facts not found by a jury beyond a reasonable doubt

or admitted by the defendant. United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (“Booker

did not eliminate judicial fact-finding. Instead, the remedial majority gave district courts the option

. . . to sentence a defendant outside the . . . Guideline range. District courts . . . must, therefore,

calculate the Guideline range as they would have done prior to Booker, but then sentence defendants

by taking into account all of the relevant factors of 18 U.S.C. § 3553, as well as the Guidelines

range.”).


                                  C. Robinson’s Other Challenges


        Robinson advances several additional challenges pro se. First, he contends that the district

court lacked subject matter jurisdiction over his trial because he did not commit the felony charged

in the indictment. But, even if Robinson were correct that he did not commit the felony charged,

he points to nothing that would deprive the district court of jurisdiction to hear his case. His

argument is “really a dispute concerning whether the government proved all of the elements

necessary to sustain a conviction under 922(g).” Settle, 394 F.3d at 431; see United States v.

Wallace, 280 F.3d 781, 784 (7th Cir. 2002).


        Robinson next complains that the Government unconstitutionally exercised its peremptory

challenges. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (“[T]he Equal Protection Clause forbids

the prosecutor to challenge potential jurors solely on account of their race.”); United States v. Angel,

355 F.3d 462, 471 (6th Cir. 2004) (applying Batson under Fifth Amendment’s Due Process Clause).

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No. 03-5852
USA v. Robinson


Robinson objected to the racial composition of the jury pool, but lodged no Batson challenge when

the Government exercised a peremptory challenge to strike the only African American member of

the jury pool. The Government was never given the opportunity to state its race-neutral justification

and the district court never ruled on the Due Process issue. Consequently, we decline to consider

Robinson’s argument. See United States v. Humphrey, 287 F.3d 422, 438-39 (6th Cir. 2002)

(declining to consider Batson challenge not raised below), overruled on other grounds by United

States v. Leachman, 309 F.3d 377, 383 (6th Cir. 2002).


        Robinson also asserts that the government knowingly presented perjured testimony.

Robinson neglected to raise this claim below, and we review only for plain error. See United States

v. Blood, 435 F.3d 612, 627 (6th Cir. 2006). Because Robinson fails to show that the prosecutor

knew of any alleged perjury, we find no plain error. See United States v. Pierce, 62 F.3d 818, 834

(6th Cir. 1995) (“To prevail on a claim that the government presented perjured testimony, [a

defendant] must show ‘(1) that the statements were actually false; (2) the statements made were

material; and (3) [the] prosecution knew they were false.’” (citation omitted) (second alteration in

original)).


        Finally, Robinson argues that the district court improperly considered the Milwaukee County

conviction in calculating his sentence. Given our decision to remand the case for resentencing based

on Booker, we find it unnecessary to address this argument.




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No. 03-5852
USA v. Robinson


                                               III


       We affirm Robinson’s conviction, but vacate his sentence and remand for Robinson to be

resentenced in accordance with the principles established in Booker.




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