United States v. Winston Tyrone Robinson , 180 F. App'x 92 ( 2006 )


Menu:
  •                                                       [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    MAY 9, 2006
    No. 05-10788                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 04-00292-CR-KOB-JEO
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    WINSTON TYRONE ROBINSON,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (May 9, 2006)
    Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
    PER CURIAM:
    In July 2004, Winston Tyrone Robinson was indicted for possession of a
    firearm by a convicted felon on October 5, 2001, in violation of 
    18 U.S.C. § 922
    (g)(1). Prior to trial, the Government moved the district court in limine to limit
    Robinson’s presentation to the jury of evidence relating to Robinson’s state of
    mind and in support of an entrapment-by-estoppel defense. At the hearing on the
    motion, the Government contended that although Robinson had received pardons
    for his previous felony convictions, the first pardon, in 1997, did not specifically
    restore his right to carry a firearm, and the second pardon, in 2003, was irrelevant
    because it came long after he committed the instant offense. After hearing what
    Robinson had to say, the court granted the Government’s motion.
    Robinson thereafter pled guilty to the charged offense under a plea
    agreement in which he waived his right to appeal his sentence (with exceptions not
    relevant here) but reserved the right to challenge the court’s decision granting the
    Government’s motion in limine. The court then sentenced Robinson to a prison
    term of 30 months. He now appeals both his conviction and sentence.
    Robinson challenges his conviction on the ground that the court abused its
    discretion when it granted the Government’s motion to exclude his presentation of
    evidence that would have shown that he had no intention to violate the law but,
    instead, tried to comply with the law by receiving a pistol permit and a pardon of
    his prior offense. We are not persuaded.
    2
    Section 922(g) states that it is unlawful for a person who has been convicted
    of a felony in any court to possess a firearm “in or affecting [interstate]
    commerce.” 
    18 U.S.C. § 922
    (g)(1). Because possession of a firearm by a
    convicted felon, under § 922(g), is a strict liability offense, the defendant's state of
    mind usually is irrelevant. United States v. Bell, 
    214 F.3d 1299
    , 1300 (11th Cir.
    2000). Nonetheless, entrapment-by-estoppel may be interposed as a defense to a
    charge of violating § 922. United States v. Funches, 
    135 F.3d 1405
    , 1407 (11th
    Cir. 1998). A defendant is excused from criminal liability under such defense
    where “a government official incorrectly informs a defendant that certain conduct
    is legal, the defendant believes the government official and is then prosecuted for
    acting in conformity with the official's advice.” United States v. Johnson, 
    139 F.3d 1359
    , 1365 (11th Cir. 1998). If this defense is asserted for the commission of a
    federal crime, the defendant must have relied upon a statement by an official or
    agent of the federal government. Funches, 
    135 F.3d at 1407
    .
    Robinson failed to establish the elements of the defense of entrapment-by-
    estoppel. Consequently, the court did not abuse its discretion in granting the
    Government’s motion in limine, and his conviction is affirmed.
    Robinson challenges his sentence on the ground that the court clearly erred
    in denying him a three-level reduction of his base offense level for acceptance of
    3
    responsibility, instead of the two-level reduction that he was granted. He presents
    this challenge despite the appeal waiver that was part of his plea agreement. We
    review an appeal-of-sentence waiver provision de novo. United States v. Weaver,
    
    275 F.3d 1320
    , 1333 n.21 (11th Cir. 2001). Sentence-appeal waivers are valid if
    they are entered into knowingly and voluntarily, with the defendant aware both that
    he had a right to appeal his sentence and that he was giving up that right. United
    States v. Bushert, 
    997 F.2d 1343
    , 1350 (11th Cir. 1993). To show that Robinson’s
    waiver was knowing and voluntary, the Government had to show either that: (1)
    the sentencing court questioned Robinson regarding the waiver during the plea
    colloquy; or (2) the record indicates that he understood the significance of the
    waiver. 
    Id. at 1351
    .
    We conclude that the waiver in this case (of the ground here asserted) is
    enforceable. We therefore do not address the question of whether the court should
    have granted the base-offense-level reduction he requested.
    Robinson’s conviction and sentence are
    AFFIRMED.
    4
    

Document Info

Docket Number: 05-10788

Citation Numbers: 180 F. App'x 92

Judges: Barkett, Black, Per Curiam, Tjoflat

Filed Date: 5/9/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023