United States v. Steven Robinson, 2014 U.S. App. LEXIS 3277

Background

In 2010 police videotaped Robinson making six crack-cocaine sales; he pleaded guilty to multiple counts in 2012 covering those sales and a conspiracy from 2002–2011.
The PSR attributed additional crack-cocaine sales to Robinson based on statements by Melvin Battle and (unsubmitted) statements from other witnesses, yielding a total drug quantity of ~1.47 kg and a base offense level of 34 (reduced to 31 for acceptance).
Robinson objected at sentencing to the PSR drug-quantity attribution (challenging Battle’s credibility) and to two criminal-history calculations: (1) treating a 2003 marijuana conviction as a prior sentence rather than relevant conduct, and (2) a two-point enhancement under U.S.S.G. §4A1.1(d) because part of the conspiracy occurred while he was on probation.
The district court gave Robinson a choice: proceed with sentencing that day on the PSR evidence (with the court applying the preponderance standard) or continue the case to allow supplementation of the record; Robinson chose to proceed.
The court accepted the PSR drug-quantity findings, applied the two-point probation enhancement, and sentenced Robinson to 140 months (within the Guidelines ranges both with and without the enhancement).
On appeal Robinson argued procedural error in both the drug-quantity determination and criminal-history calculation; the Fourth Circuit majority affirmed, finding waiver on the drug-quantity challenge and rejecting both criminal-history arguments.

Issues

Issue	Plaintiff's Argument (Robinson)	Defendant's Argument (Gov't)	Held
Whether Robinson may challenge PSR drug-quantity after electing to proceed at sentencing	Robinson argued Battle’s statements were unreliable and the PSR’s attribution lacked adequate evidence	Government argued Battle’s later (lower) estimate was the conservative, reliable one and proffered other corroborating witnesses	Waiver: Robinson knowingly chose to proceed on the PSR record, so he waived appellate challenge to the drug-quantity finding
Whether the 2003 marijuana conviction is "relevant conduct" (and thus not a prior sentence)	Robinson argued the 2003 conviction occurred during conspiracy timeframe and should be treated as relevant conduct, not a prior sentence	Government and court treated the 2003 possession conviction as a separate prior sentence distinct from the crack-distribution conspiracy	Affirmed: district court’s factual determination that the 2003 possession conviction was not relevant conduct was not clearly erroneous
Whether a two-point §4A1.1(d) enhancement applies because part of the conspiracy coincided with probation	Robinson argued he could not have committed conspiracy acts during his one-day probation (he was in transit) so enhancement is improper	Government relied on §4A1.1(d) plain text: any part of the instant offense during probation triggers enhancement; if harsh, court may depart downward	Affirmed: enhancement proper — probation day fell within conspiracy timeframe and triggers the two-point adjustment; district court could depart if warranted
Whether Robinson’s within-Guidelines sentence was substantively unreasonable	Robinson cited military service, mental health, work history for leniency	Government maintained sentence within Guidelines and reasonable	Denied as meritless; court affirmed the sentence as within applicable Guidelines ranges

Key Cases Cited

Olano v. United States, 507 U.S. 725 (plain-error review framework)
Keeter v. United States, 130 F.3d 297 (7th Cir. 1997) (waiver by choosing to proceed)
Rodriguez v. United States, 311 F.3d 435 (1st Cir. 2002) (withdrawing objection constitutes waiver)
Solomon v. United States, 274 F.3d 825 (4th Cir. 2001) (PSR calculations standing alone are not a finding of fact)
Milam v. United States, 443 F.3d 382 (4th Cir. 2006) (government must prove drug quantity by preponderance)
Kimberlin v. United States, 18 F.3d 1156 (4th Cir. 1994) (apply enhancement then depart downward if enhancement is unduly harsh)
Hernandez v. United States, 541 F.3d 422 (1st Cir. 2008) (short probation overlapping conspiracy supports §4A1.1(d) enhancement)