UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RASHAD RAE ROBINSON, Defendant-Appellant.
No. 19-2441
United States Court of Appeals For the Seventh Circuit
Decided July 7, 2020
ARGUED FEBRUARY 26, 2020
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division.
No. 3:16-cr-00040-RLY-CMM-1 — Richard L. Young, Judge.
Before ROVNER, WOOD and BARRETT, Circuit Judges.
I.
The dominos began to fall around Robinson after one of his customers, Joshua Jacobs, sold methamphetamine to a confidential source. Following his arrest, Jacobs stated that he purchased the methamphetamine from Robinson, and had done so ten to twelve times, totaling approximately
The government filed the following indictment:
Beginning on or about January 1, 2016, and continuing up to and through July, 2016, in the Southern District of Indiana, Evansville Division, and elsewhere, RASHAD RAE ROBINSON, JOSHUA JACOBS, TANNER MCCOY, and BRANDI NICHOLE ADDISON, defendants, did knowingly conspire together and with diverse other persons, known and unknown to the Grand Jury, to possess with the intent to distribute and to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, a Schedule II Non-Narcotic Controlled Substance, in violation of
Title 21, United States Code, Sections 841(a)(1) ,841(b)(1)(A) and846 .
(R. 12).
Robinson pled guilty to this indictment at a plea hearing. This ought to end the story. In this appeal, however, Robinson argues that despite the clear language in the indictment above, he did not plead guilty to an offense punishable under
A. The plea phase
Leading up to the change of plea hearing, Robinson filed a Petition to Enter a Plea of Guilty, affirming that he had “read and discussed the Indictment with my attorney and believe and feel that I understand every accusation made against me.” (R. 127 at 2). He also stated, “I wish to plead ‘Guilty,’ and respectfully request the Court to accept my plea as follows: ‘Guilty’ as charged to Count One of the Indictment filed against me.” Id. at 4. (underlining in original). Count one of the indictment, of course, described a conspiracy involving 500 grams or more of methamphetamine under
In exchange for the plea, the government agreed not to seek an increased sentence based on his prior felony convictions pursuant to
Once all of the parties were standing before the district court, the colloquy before the judge reflected the agreement that Robinson would plead guilty to a conspiracy involving 500 grams or more of methamphetamine:
THE COURT: The grand jury charges beginning on or about January 1, 2016, and continuing up to and through July 2016, Southern District of Indiana, Evansville Division and elsewhere, Rashad Rae Robinson, Joshua Jacobs, Tanner McCoy, and Nichole Brandi Addison [sic], defendants, did knowingly conspire together with diverse other persons known and unknown to the grand jury, to possess with the intent to distribute and distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, a Schedule II nonnarcotic controlled substance, all in violation of
21 U.S. Code Section[s] 841 and846 .Mr. Robinson, do you understand the nature of that allegation?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that true?
THE DEFENDANT: Yes, Your Honor.
Id. at 14 (emphasis ours). In short, Robinson admitted at the plea hearing that he participated in a conspiracy involving 500 grams or more of methamphetamine.
B. The sentencing phase
In the sentencing phase, Robinson made several more implicit and explicit admissions to the drug amount. In his written objections to the presentence investigation report (PSR), Robinson disagreed with the characterization of his role as a “leader,” and to the calculation of his criminal history points. (R. 136, 138).3 Thus, despite understanding that he could object to information in the PSR with which he disagreed, Robinson made no objections to the drug quantity amount or to the fact that he believed he had been convicted under the wrong subsection of
The sentencing proceedings continued in a manner consistent with the pre-hearing filings. At the very start of the sentencing hearing, the judge explained that Robinson was before the court for a crime involving 500 grams or more of methamphetamine. The district court judge stated: “My record reflects on February 28, 2019, [the] Court found an independent factual basis for the defendant‘s plea to conspiracy to possess with the intent to distribute and distribute 500 grams or more of methamphetamine, a violation of
As the sentencing hearing continued, the district court judge also asked both parties if they had had the opportunity to review the information in the PSR, and then stated, “I note no objections from the government. There are apparently two objections from the defendant. But other than the objections that were filed, objection No. 1 and objection No. 2, Mr. Robinson, is the information contained in the presentence report true and accurate?” (R. 158 at 3). The defendant himself answered, “Yes, your honor.” Id. at 4. When Robinson affirmed that all of the information in the PSR was “true and accurate,” this included a description of the charged crime—conspiracy to distribute 500 grams or more of methamphetamine. Id. At 3-4. Based on
To sum up, Robinson affirmatively agreed to or acquiesced to the amount of drugs involved in the conspiracy repeatedly throughout the plea and sentencing phases. All of the multiple admissions of drug quantity therefore belie Robinson‘s claim that he did not plead guilty to a conspiracy involving 500 grams or more of methamphetamine. Nevertheless, Robinson argues that he entered a plea to conspiracy to distribute methamphetamine without admitting to any quantity, and that therefore, “[a]t worst, this admission may have been sufficient ... for the district court to sentence Robinson under
Given the myriad admissions and acquiescence we have recited above, one might wonder on what basis Robinson asserts that he did not admit to a crime involving 500 grams or more of methamphetamine under
II.
A. Robinson‘s arguments
1. Pinkerton liability
We begin with Robinson‘s argument that he should only be sentenced based on the quantity of methamphetamine he delivered (or considered delivering) to Joshua Jacobs. As Robinson rightly points out, “[o]ther than the fact of a prior conviction, any fact that increases the penalty
We can dispose of this first argument quickly with the Pinkerton theory of liability. “[I]n a drug conspiracy, each conspirator is responsible not only for drug quantities directly attributable to him but also for amounts involved in transactions by co-conspirators that were reasonably foreseeable to him.” United States v. Jones, 900 F.3d 440, 446 (7th Cir. 2018) (citing Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)). And there is no doubt that Robinson pled guilty to a conspiracy, and that he agreed that the conspiracy involved 500 grams or more of methamphetamine. In addition to the transcript cites above, Robinson admitted to all of the acts necessary for a conspiracy:
THE COURT: Conspiracy exists when you agree with one or more other individuals to commit an illegal act. The crime‘s actually committed when the agreement is made. It doesn‘t necessarily have to be that the goals and objectives of the conspiracy are actually successful. Do you understand this?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did you agree with anyone in this indictment to commit an illegal act?
THE DEFENDANT: Yes, Your Honor.
***
THE COURT: And what illegal act did you agree to do with him?
THE DEFENDANT: To deal methamphetamine.
(R. 161 at 8-9).
Robinson claims that the district court received “conflicting ‘admissions‘” from him concerning drug quantity. Robinson‘s Reply Brief at 11. We see no conflict. Robinson admitted to a conspiracy involving 500 grams or more of methamphetamine. His only objection was to how much he personally distributed—a number that is not relevant in sentencing under a Pinkerton theory of liability where every co-conspirator is responsible not only for drug quantities directly attributable to him, but also for amounts involved in transactions by co-conspirators that were reasonably foreseeable to him. Jones, 900 F.3d at 446.
Robinson points to two episodes in the testimony where he objected to the drug amount, but both are objections to the amount attributable to him personally, not to the amount attributable to the conspiracy. During the course of the plea colloquy, the district court set forth the evidence at trial that would support a verdict of guilty,
2. The final plea statement
The second reason Robinson contends that he did not admit to a conspiracy under
THE COURT: As to the charge contained in the indictment, conspiracy to distribute methamphetamine, a violation of
21 U.S. Code Section 846 , how do you plead, guilty or not guilty?THE DEFENDANT: Guilty.
(R. 161 at 25). The statute the judge cited,
B. Waiver or forfeiture
All of this is but another way of saying that Robinson waived any argument as to drug quantity. An “admission[] resolve[s] all important matters against” a defendant, and “removes all contest from the case.” Warneke, 310 F.3d at 550. When a defendant intentionally relinquishes a
Although a guilty plea admits only the essential elements of the offense, United States v. White, 883 F.3d 983, 989-90 (7th Cir. 2018), “[a] defendant, of course, may admit far more than the elements of a charged crime by stipulating to facts in a plea agreement, by agreeing with the government‘s factual basis, or even by answering the judge‘s questions during the plea colloquy.” United States v. Paulette, 858 F.3d 1055, 1060 (7th Cir. 2017). Therefore, when a defendant stipulates to conduct in a plea agreement, in a presentence report, and at his sentencing hearing, he waives any claim that he did not engage in that conduct. United States v. Young, 908 F.3d 241, 247 (7th Cir. 2018); White, 883 F.3d at 990 (“A defendant may admit more than just the essential elements of an offense by stipulating to facts in a plea agreement or by agreeing with the government‘s factual basis.“); United States v. Newman, 148 F.3d 871, 876 (7th Cir. 1998) (although defendant objected at sentencing to conduct described in the presentence report and the resulting loss calculation, “by stipulating to the conduct listed in [his] plea agreement, [the defendant] conclusively admitted those facts and waived any subsequent challenge to them.“).
Here, Robinson did just that. He admitted to his participation in the conspiracy involving 500 grams or more of methamphetamine by stipulating to the facts in the plea agreement, by agreeing with the government‘s factual basis, by stipulating to conduct in the PSR, and by answering the judge‘s questions during the plea colloquy. At every step of the way the district court asked Robinson if he agreed with the facts as set forth in the indictment and the PSR, and every step of the way he agreed. His only disagreement was about his individual participation—facts that were not legally relevant to a determination of drug quantity in a conspiracy.
Robinson urges us not to look at the plea agreement and colloquy, however, arguing that he is not appealing an error that occurred at the plea hearing, but rather at sentencing. See Robinson‘s Reply Brief at 1-2. He argues this because, of course, he does not wish to rewind his plea and risk a worse outcome after a trial. After all, all of his co-conspirators pled guilty and would be called to testify. Moreover, in exchange for his guilty plea, the government had agreed not to request a sentence increase based on prior felony convictions. Following a guilty verdict, the prior felony convictions would dictate a fifteen-year mandatory minimum.
Robinson describes the error below as follows: “the district court procedurally and plainly erred by beginning the sentencing procedure with the incorrect advisory Guidelines range because he pleaded guilty to an offense punishable under
But even if we looked only at alleged errors that occurred at sentencing, it was also clear, at the time of sentencing, that Robinson knew he was being sentenced for a crime involving 500 grams or more of methamphetamine under
“Although a lawyer‘s statement that a defendant has no objection to the PSR does not automatically constitute a waiver,” we consider it in light of the surrounding circumstances and the record as a whole to determine whether counsel and the defendant made a knowing and intentional decision. Garcia, 580 F.3d 542 (emphasis in original). In this case, part of the surrounding circumstances would entail looking at the sheer number of times and the multiple proceedings in which Robinson and his counsel acquiesced or expressly agreed to the statement that he participated in a conspiracy involving 500 grams or more of methamphetamine—in plea agreements signed by the defendant, in court during the plea hearing, in objections to the PSR, and during the sentencing hearing. In addition to the explicit waivers in sentencing, Robinson also did not object when the court stated that the “[c]onspiracy was responsible for at least 1.5 but less than 4.5 kilograms of methamphetamine ice.” (R. 158 at 7). He did not object when the judge announced the sentence associated with this amount of methamphetamine. (R. 158 at 8, 15); and he did not object when the court ended the hearing by saying the “[c]ourt now enters judgment of conviction on Count 1, conspiracy to possess with the intent to distribute and distribute 500 grams or more of methamphetamine.” Id. at 57-58.
In looking at the circumstances as a whole, we also consider whether the lack of an objection could have been tactical or strategic. United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). There is no “rigid rule for finding waiver in acquiescence.” United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010); and it is one that often requires
The government argues that Robinson‘s choice not to object below was tactical. As the government posits, had he objected at the hearing or at the sentencing, the district court would have held proceedings to set aside the guilty plea, and would have set the matter for trial. And because all of the other co-conspirators had pled guilty and would be available to testify against Robinson, the odds of his acquittal were slim. Furthermore, he would have lost the three point reduction in his sentence for acceptance of responsibility and exposed himself to a much higher sentence with his previous felony convictions back on the table. Given the circumstances as a whole—the number of times Robinson agreed to the facts, the multiple proceedings in which he did so, and the fact that there was a reasonable strategic reason for acquiescing, we find that Robinson waived his argument that he did not plead guilty to a conspiracy involving 500 grams or more of methamphetamine.
Although we construe waiver principles liberally in favor of the defendant, United States v. Dridi, 952 F.3d 893, 898 (7th Cir. 2020), we have time and again found waiver in just this circumstance—where a defendant or his counsel either concurs with the facts found in a pre-sentence report, or expressly declines to make an objection to those facts at sentencing, or both. United States v. Cooper, 243 F.3d 411, 416 (2001). See also, United States v. Flores, 929 F.3d 443, 449 (7th Cir.), cert. denied, 140 S. Ct. 504 (2019) (finding waiver where the defendant chose to raise certain sentencing objections, but not others); United States v. Armour, 804 F.3d 859, 865 (7th Cir. 2015) (finding waiver where the defendant stated that he had reviewed his violation memorandum with his lawyer, objected to two limited parts of it, but not any others, and where the court assumed that his silence as to others was part of a tactical strategy); United States v. Scott, 657 F.3d 639, 640 (7th Cir. 2011) (finding waiver where the defendant stipulated in his written plea agreement to the facts, and concurred at sentencing that the adjustment based on those facts applied); United States v. Rodgers, 610 F.3d 975, 979 (7th Cir. 2010) (finding waiver where the defendant filed no objections to the factual findings in the PSR and when asked in court if he had any further objection expressly stated that he did not); United States v. Adcock, 534 F.3d 635, 641 (7th Cir. 2008) (finding waiver where counsel affirmatively stated that he has no objection to the loss calculation in the PSR); Brodie, 507 F.3d at 531 (finding it to be the “the paragon of intentional relinquishment,” where a defendant had access to his PSR, objected to certain parts, but then stated that he had no further objections to the remainder); United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002) (where the defendant and his lawyer informed the judge that, with the exception of certain identified issues, they had no problems with the conclusions of the presentence report, that representation waived any other theories related to the sentence); United States v. Siegler, 272 F.3d 975, 978 (7th Cir. 2001) (A defendant
Even if Robinson did not knowingly and intentionally waive any objection to the drug quantity necessary for a conviction under
The judgment of the district court is therefore AFFIRMED.