United States v. Robinson , 264 F. App'x 332 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4638
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOSE DEMOND ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:03-cr-00616-HMH)
Submitted: January 18, 2008 Decided: February 14, 2008
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South Carolina,
for Appellant. Reginald I. Lloyd, United States Attorney, Isaac
Louis Johnson, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We previously affirmed the convictions of Carlose Demond
Robinson on various narcotics and firearms charges. However, we
vacated Robinson’s 960-month sentence and remanded for
resentencing. United States v. Robinson, 221 Fed. Appx. 236, 2007
WL 869159 (4th Cir. 2007) (unpublished). At resentencing, the
district court again imposed a 960-month sentence. Robinson now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), alleging that the district court
should have imposed a variance sentence but stating that there are
no meritorious issues for appeal. Robinson has filed a pro se
supplemental brief raising additional issues. Finding no
reversible error, we affirm.
In his earlier appeal, Robinson claimed that his sentence
violated the Sixth Amendment because it was improperly enhanced
under U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.4 (2003). We
rejected this claim, finding it foreclosed by Shepard v. United
States, 544 U.S. 13, 20 (2005). We agreed, however, that the
district court violated United States v. Booker, 543 U.S. 220(2005), by treating the sentencing guidelines as mandatory.
Because the district court did not indicate how it would have
sentenced Robinson under an advisory guidelines scheme, we vacated
the sentence and remanded for resentencing.
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At resentencing, the district court clearly treated the
guidelines as advisory. The court also considered the factors set
forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Robinson
moved for a variance, contending that a seventy-year sentence would
be appropriate in light of his age and the § 3553(a) factors. The
district court denied the motion, finding that a sentence within
the advisory guideline range of 960 months to life was appropriate.
The court then sentenced Robinson to 960 months in prison.
In his pro se brief, Robinson asserts that he was wrongly
convicted. He also contests the enhancement of his sentence under
USSG §§ 4B1.1, 4B1.4 and the calculation of the amount of drugs
for which he was responsible. Consideration of these arguments is
prohibited by the mandate rule, which “forecloses relitigation of
issues expressly or impliedly decided by the appellate court” as
well as “issues decided by the district court but foregone on
appeal.” See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
In the Anders brief, counsel contends that the district
court erred when it denied the motion to impose a variance
sentence. We review a post-Booker sentence to determine if it is
“within the statutorily prescribed range and reasonable.” United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). “[A]
sentence within the properly calculated Guidelines range . . . is
presumptively reasonable.” United States v. Green, 436 F.3d 449,
455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
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Here, Robinson’s sentence falls within the applicable
statutory range and the correctly calculated advisory guideline
range and is presumptively reasonable. We conclude that Robinson
failed to rebut this presumption by showing that his sentence is
unreasonable when measured against the § 3553(a) factors. See
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
The district court accordingly did not err when it denied the
motion for a variance.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. 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, counsel
may move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served on
the client. We deny the motion for substitution of counsel and
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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