Decided: February 21, 2014
The Fourth Circuit affirmed Steven Robinson’s 140-month sentence for cocaine distribution, finding that the district court committed no error in following the sentencing guidelines relating to the drug quantity assigned and in calculating his criminal history.
In 2010, police videotaped Robinson and others selling crack cocaine to a police informant. Robinson was indicted of conspiring to distribute crack cocaine from 2002 to 2011, aiding and abetting the distribution of crack cocaine, and distribution of crack cocaine. After both of his co-conspirators pled guilty, Robinson finally pled guilty to the charges on the day of his trial. At sentencing, Robinson objected to the court’s calculation of the quantity of drugs attributable to him and his criminal history.
At sentencing, Robinson first objected to the district court’s reliance on the pre-sentence report (“PSR”) drafted by a probation officer attributing “50 grams or more” of crack cocaine to Robinson. Although Robinson was captured on tape selling far less than 50 grams, the probation officer concluded that between 2002 and 2011, Robinson sold far more crack cocaine than what was caught on tape. The probation officer largely relied on the testimony of a police informant who claimed to have purchased drugs regularly from Robinson between 2000 and 2008 in amounts totaling more than a kilogram. Robinson challenged the credulity of the police informant largely because the informant first claimed to have bough 6 kilograms of the drug before revising his estimate to 1.4 kilograms. Furthermore, Robinson claims that he could not have sold the informant drugs between 2005 and 2008 because he was away at culinary school during the period. The government defended the “50 grams or more” quantity of crack cocaine, claiming that its informant simply revised the amount of drugs purchased to an amount that was more conservative and reliable than the first estimate. Moreover, the government claimed that there was ample evidence that Robinson sold drugs to other witnesses in amounts exceeding 50 grams without resorting to the drugs sold from the 2005 to 2008 period when Robinson claims to have been away at culinary school. The district court gave Robinson two options: start the pre-sentence report process over again, realizing that Robinson may potentially receive a worse sentence, or go forward with the evidence as presented. Robinson chose not to restart the process and opted to move forward with the information in the record. Robinson appealed the district court’s sentence based on its calculation of the amount of drugs.
On appeal, the Fourth Circuit upheld the district court’s calculation of drugs attributable to Robinson. The court reasoned that Robinson “made the conscious choice at sentencing to proceed on the basis of the information contained the PSR,” waving his right to appeal the district court’s reliance on the information. The district court clearly provided Robinson with the choice of either: postponing sentencing until the parties could collect more evidence as to the proper drug quantity, or proceeding based on the evidence before the court. Robinson stated that he “would rather go ahead and do it now.” Moreover, even when the district court gave him the opportunity again, Robinson maintained that he wished to proceed. Thus, the court believed that Robinson consciously and with a full appreciation of the consequences, chose to waive his right to challenge the information contained in the PSR.
Robinson also objected to the PSR’s assignment of criminal history points on the basis of his one-day probation for a 2003 marijuana conviction. Robinson claimed that the PSR wrongly concluded that Robinson violated his probation on that day by selling drugs because he spent his entire day traveling home from Maryland, and thus, could not have sold drugs on that day. The district court rejected Robinson’s argument and adjusted Robinson’s range upward accordingly from 121-151 months to 135-168 months. The court ultimately imposed a sentence of 140 months, which fell “well within” both ranges. On appeal, the Fourth Circuit upheld the enhancement, holding that even if he did not sell crack cocaine during the 24 hours of probation, the sentencing enhancement was still proper because “even a short period of probation imposed during an ongoing conspiracy triggers an enhancement.” Thus, because the conspiracy conviction included the day of probation in 2003, the sentencing enhancement was proper.
– Wesley B. Lambert