United States v. Robinson , 178 F. App'x 408 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2006
Charles R. Fulbruge III
Clerk
No. 04-50501
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN DORAL ROBINSON,
also known as KD Robinson,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-38-1
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Kevin Doral Robinson.
United States v. Robinson, 115 F. App’x 246 (5th Cir. 2004),
cert. granted, vacated and remanded, 125 S. Ct. 1946 (2005). The
Supreme Court vacated and remanded for further consideration in
light of United States v. Booker, 543 U.S. 220 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
*
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this opinion should not be published and is not precedent except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.
No. 04-50501
-2-
Robinson argues that in light of Booker, his sentence must
be vacated because it was based on judicial fact-findings made in
violation of the Sixth Amendment. He specifically challenges the
constitutionality of the district court’s drug quantity
calculation and the enhancement to his sentence for possession of
a firearm. Robinson asserts that the record reflects that the
district court would “likely” impose a lesser sentence if his
case was remanded.
As an initial matter, because the Government has not invoked
the waiver provisions in the plea agreement, this appeal of
Robinson’s sentence is not precluded. See United States v.
Story, 439 F.3d 226, 230-31 (5th Cir. 2006). Robinson concedes
that he did not raise a constitutional challenge to his sentence
before the district court and that review is for plain error.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). The district court did commit
Booker error because Robinson’s sentence was enhanced based on
the district court’s findings as to the drug quantity calculation
and the firearm enhancement. See Booker, 543 U.S. at 244.
However, Robinson fails to meet his burden of showing that the
error affected his substantial rights. See Mares, 402 F.3d at
521. There is nothing in the record indicating that the district
court would have imposed a lower sentence under an advisory
guidelines scheme. See id.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
No. 04-50501
-3-
reinstate our judgment affirming Robinson’s conviction and
sentence.
AFFIRMED.