United States v. Robinson , 337 F. App'x 360 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4699
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIAN KENDELL ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00032-LHT-DLH-4)
Submitted: June 17, 2009 Decided: July 6, 2009
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Darian Kendell Robinson
pled guilty to conspiracy to possess with intent to distribute
fifty grams or more of cocaine base (“crack”), in violation of
21 U.S.C. § 846 (2006). The district court sentenced Robinson
as a career offender to 276 months’ imprisonment. Robinson
timely appealed.
Robinson’s attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), challenging the
adequacy of the Fed. R. Crim. P. 11 hearing and questioning
Robinson’s sentence, but concluding that there were no
meritorious grounds for appeal. Robinson filed a pro se
supplemental brief, challenging his conviction and sentence.
Finding no meritorious grounds for appeal, we affirm.
Counsel first raises as a potential issue the adequacy
of the Rule 11 plea colloquy. Our careful review of the record
convinces us that the district court substantially complied with
the mandates of Rule 11 in accepting Robinson’s guilty plea.
The court ensured that Robinson entered his plea knowingly and
voluntarily and that the plea was supported by an individual
factual basis. United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991).
Next, counsel asserts that the district court engaged
in impermissible double counting by using a prior conviction
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both to raise the statutory minimum sentence from ten years’
imprisonment to twenty years’ imprisonment pursuant to 21
U.S.C.A. § 841(b) (West 1999 & Supp. 2009), and 21 U.S.C. § 851(2006), and to classify Robinson as a career offender. We find
that Robinson is not entitled to relief on this claim. United
States v. Quiroga, 554 F.3d 1150, 1158 (8th Cir.), cert. denied,
129 S. Ct. 2175 (2009).
Counsel also questions whether the district court
erred in relying on Robinson’s 1990 felony convictions for
purposes of determining that Robinson qualified as a career
offender under U.S. Sentencing Guidelines Manual § 4B1.1(a)
(2006), and whether the district court provided an adequate
explanation for the sentence imposed. Under USSG § 4A1.1(e)(1),
any sentence exceeding one year and one month that resulted in
the defendant being incarcerated for a period of time within
fifteen years of the commencement of the instant offense may be
properly considered in designating a defendant as a career
offender. “Commencement of the instant offense” means the point
at which the defendant first engaged in conduct that would
qualify as “relevant conduct.” USSG § 4A1.2 cmt. n.8. We find
that the district court properly considered the 1990 convictions
in determining that Robinson was a career offender because
Robinson was released from incarceration for those offenses less
than fifteen years before he committed the instant offense.
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Turning to the district court’s explanation of its
sentence, Robinson received a sentence within the properly
calculated guidelines range, a sentence that is entitled to an
appellate presumption of reasonableness. Rita v. United States,
551 U.S. 338, __, 127 S. Ct. 2456, 2459 (2007). The record
reveals no nonspeculative basis for concluding that Robinson
would have received a different sentence had the court engaged
in a more thorough explanation at sentencing. Cf. United States
v. White, 405 F.3d 208, 223-24 (4th Cir. 2005).
In accordance with Anders, we have reviewed the record
for any meritorious issues for appeal and have found none. ∗
Thus, we affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument
because the facts and legal contentions are adequately presented
∗
We have reviewed the claims in Robinson’s pro se
supplemental brief and conclude that they are without merit.
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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