United States v. Robinson , 181 F. App'x 379 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-04-
219)
Submitted: May 8, 2006 Decided: May 18, 2006
Before WILKINS, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James Wyda, Federal Public Defender, Lisa C. Phelan, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, James T. Wallner, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
During a search incident to the arrest of defendant Jesse
Robinson on an outstanding state-law warrant, Baltimore police
officers found a 9mm Jennings handgun tucked into his waistband.
A jury subsequently found Robinson guilty of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). The district court determined that Robinson’s criminal
history qualified him for sentencing under the Armed Career
Criminal Act (ACCA), id. § 924(e) (2000 & Supp. II 2002), and
sentenced him to a term of 235 months. Robinson appeals,
challenging his conviction and sentence. For the following
reasons, we affirm the conviction but vacate the sentence and
remand for resentencing.
I.
Robinson attacks his conviction on three separate grounds, all
of which we find to be without merit. First, he challenges the
district court’s refusal to grant him a continuance to file a
proper pre-trial motion pursuant to Franks v. Delaware, 438 U.S.
154, 171 (1978). See United States v. Jeffus, 22 F.3d 554, 559
(4th Cir. 1994) (reviewing refusal to continue a Franks motion for
abuse of discretion). Franks permits a defendant to make an offer
of proof, typically through “[a]ffidavits or sworn or otherwise
reliable statements of witnesses,” that he is entitled to an
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evidentiary hearing to challenge the validity of a warrant.
Franks, 438 U.S. at 171. Here, despite having weeks to secure an
affidavit, Robinson simply showed up at court with his witnesses,
presenting only an attorney proffer in support of his contention
that an evidentiary hearing was warranted. Under these
circumstances, the district court did not abuse its discretion in
denying Robinson’s request for a continuance to prepare the
required affidavit.
Second, Robinson contends that the government’s rebuttal
argument at the close of trial amounted to improper prosecutorial
“vouching.” “Vouching generally occurs when the prosecutor’s
actions are such that a jury could reasonably believe that the
prosecutor was indicating a personal belief in the credibility of
[a] witness.” United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.
1993). Robinson suggests that the prosecutor impermissibly vouched
for the testimony of police officers when he argued that accepting
the defense’s theory of the case would require the jury to find
that the officers had lied on the stand and that such a finding
would be unreasonable and insulting.
There was no improper vouching here because these comments
were “not an expression of personal opinion by the prosecutor;
rather, [they were] a permissible rebuttal to a defense argument,”
as defense counsel had just finished arguing to the jury that the
officers shaped their testimony to secure a conviction. United
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States v. Morsley, 64 F.3d 907, 912 (4th Cir. 1995); see also
United States v. Scott, 267 F.3d 729, 740-41 (7th Cir. 2001) (no
error to rebut defense suggestion that prosecution witnesses lied).
Moreover, even if vouching did take place, reversal is warranted
only if the improper statements “so infect[ed] the trial with
unfairness as to make the resulting conviction a denial of due
process.” United States v. Collins, 401 F.3d 212, 217 (4th Cir.
2005) (internal quotation marks omitted). We cannot conclude that
this was the case here.
Third, Robinson contests the sufficiency of the evidence
against him, arguing that the government failed to establish a
continuous chain of custody for the weapon introduced into evidence
as the one he possessed at the time of his arrest. “[C]hain of
custody is not an iron-clad requirement,” and a “missing link” in
the chain is not fatal “so long as there is sufficient proof that
the evidence is what it purports to be and has not been altered in
any material respect.” United States v. Ricco, 52 F.3d 58, 61-62
(4th Cir. 1995) (internal quotation marks omitted). Considering
the evidence -- including unequivocal direct testimony from the
arresting officer -- in the light most favorable to the government,
we find ample reason why the jury could conclude that the gun
introduced into evidence was indeed the same one recovered from
Robinson. See United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996) (en banc).
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II.
With respect to his sentencing, Robinson presents two further
arguments for our review. First, he claims that it was error under
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005), for the district court to find him
eligible for sentencing under ACCA based on predicate convictions
that had neither been found by a jury nor admitted by him. But
even after Blakely and Booker, “the Supreme Court continues to hold
that the Sixth Amendment (as well as due process) does not demand
that the mere fact of a prior conviction used as a basis for a
sentencing enhancement be pleaded in an indictment and submitted to
a jury for proof beyond a reasonable doubt.” United States v.
Cheek, 415 F.3d 349, 352 (4th Cir. 2005); see also Booker, 543 U.S.
at 244 (only facts “other than a prior conviction” must be admitted
or proven to jury).
Second, Robinson claims -- and the government concedes -- that
we must remand for resentencing because the district court treated
the Guidelines as mandatory in deciding on his sentence. We have
referred to this as “statutory Booker error,” and because Robinson
raised a proper objection below, we review for harmless error.
United States v. Rodriguez, 433 F.3d 411, 414 & n.6, 416 (4th Cir.
2006). We find no indication in the record that the error was
harmless, and thus agree with the parties that a remand is
necessary. See id. at 416.
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III.
We therefore affirm Robinson’s conviction, but vacate his
sentence and remand for resentencing in accordance with Booker.
Although the sentencing Guidelines are no longer mandatory, Booker
makes clear that a sentencing court “must consult [the] Guidelines
and take them into account when sentencing” a defendant. 543 U.S.
at 264. On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The court
should consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2005), and then impose a
sentence. See Hughes, 401 F.3d at 546. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C.A. § 3553(c)(2). See
Hughes, 401 F.3d at 546. The sentence must be “within the
statutorily prescribed range” and “reasonable.” Id. at 547.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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