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 2014-08

United States v. Kenneth Robinson , 580 F. App'x 239 ( 2014 )


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  •                              UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH ROBINSON, a/k/a Bear,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:11-cr-00521-JFM-1)
Submitted:   July 29, 2014                 Decided:   August 4, 2014
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven H. Levin, LEVIN & CURLETT LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Brooke E.
Carey, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Robinson was convicted by a jury of possessing
with intent to distribute 280 grams or more of cocaine base,
    21 U.S.C. § 841
    (a)(1) (2012).              Robinson now claims error in the
district       court’s    in   limine    determination       that,     should     he
testify, his prior conviction for conspiracy to commit murder
would likely be admissible to impeach his credibility.                   Robinson
argues that, in light of the district court’s application of the
wrong balancing test, he was unconstitutionally forced to choose
between exercising his right to testify and receiving a fair
trial.   We affirm.
First,       because     Robinson    declined    to      testify,     we
conclude that he has forfeited the issues he raises on appeal.
See Luce v. United States,
    469 U.S. 38
    , 41-43 (1984); United
States v. Lamarr,
    75 F.3d 964
    , 970-71 (4th Cir. 1996).                   Lest the
exception swallow the rule, we must reject Robinson’s attempt to
evade    his    forfeiture     by    asserting     an   infringement      of     his
constitutional rights.             See United States v. Gunter,
    551 F.3d 472
    , 483-84 (6th Cir. 2009); United States v. Schrader,
    10 F.3d 1345
     (8th Cir. 1993).          Moreover, were we to consider Robinson’s
claim of evidentiary error on its face, our review would be
hampered by the same hurdles the Supreme Court identified in
Luce.      Luce,
    469 U.S. at 41-42
    .              Finally, the record belies
Robinson’s       suggestion    that     the     district    court     rendered    a
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definitive,   and     thus    reviewable,      decision      on     his    murder
conviction’s admissibility.
Accordingly,      we   affirm   Robinson’s       conviction.        We
dispense   with     oral   argument    because       the    facts    and    legal
contentions   are   adequately     presented    in    the   materials       before
this court and argument would not aid the decisional process.
AFFIRMED
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