Filed: Feb. 02, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4332 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NOEL ROBINSON, a/k/a Bongo, a/k/a Mr. B, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:10-cr-00043-HMH-2) Submitted: January 20, 2012 Decided: February 2, 2012 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4332 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NOEL ROBINSON, a/k/a Bongo, a/k/a Mr. B, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:10-cr-00043-HMH-2) Submitted: January 20, 2012 Decided: February 2, 2012 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOEL ROBINSON, a/k/a Bongo, a/k/a Mr. B,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:10-cr-00043-HMH-2)
Submitted: January 20, 2012 Decided: February 2, 2012
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Hannah Rogers Metcalfe, HANNAH ROGERS METCALFE, P.A.,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noel Robinson pled guilty to conspiracy to distribute
methamphetamine, cocaine, and cocaine base, in violation of 21
U.S.C.A. §§ 841(a)(1), (b)(1)(A), 846 (West 1999 & Supp. 2011).
The district court imposed a sentence of 139 months’
imprisonment, and Robinson timely appealed. On appeal, counsel
for Robinson filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal but questioning whether the district court abused its
discretion in finding a factual basis to support Robinson’s
plea, whether Robinson’s sentence was appropriate, and whether
Robinson’s trial counsel was ineffective. Robinson was informed
of his right to file a pro se supplemental brief but has not
done so.
We directed supplemental briefing on the adequacy of
the district court’s explanation of sentence, and whether any
error in that explanation was harmless. In his supplemental
brief, Robinson asserts that the district court failed to
adequately explain its denial of his request for a downward
departure or variance and failed to state its reasons for the
sentence imposed. The Government asserts that the district
court did not err in its explanation, and that, if we conclude
the court erred, the error was harmless. For the reasons that
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follow, we affirm Robinson’s conviction, but vacate his sentence
and remand for resentencing.
Because Robinson did not move to withdraw his guilty
plea, we review the Fed. R. Crim. P. 11 hearing for plain error.
United States v. Martinez, 277 F.3d 517 (4th Cir. 2002). To
establish plain error, Robinson “must show: (1) an error was
made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg,
564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record leads us to
conclude that the district court substantially complied with the
mandates of Rule 11 in accepting Robinson’s guilty plea and that
any omissions did not affect Robinson’s substantial rights. The
record confirms that the plea was supported by a factual basis
and that Robinson voluntarily and knowingly entered a plea of
guilty.
Turning to Robinson’s sentence, this court reviews for
reasonableness, applying the abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
requires consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn,
592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the defendant’s advisory
Guidelines range, this court examines whether the court
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the
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arguments presented by the parties, and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575-76; United
States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). If the
sentence is free of significant procedural error, this court
will then review the substantive reasonableness of the sentence.
Lynn, 592 F.3d at 575; United States v. Pauley,
511 F.3d 468,
473 (4th Cir. 2007).
We conclude that the district court committed
procedural error in failing to sufficiently explain Robinson’s
sentence. Before sentencing, Robinson moved for a downward
departure or variance to a sentence of 120 months, arguing that
his criminal history was overstated and citing his lack of
active involvement in the conspiracy. The district court denied
the motion without explanation. In imposing a 139-month
sentence, the district court merely stated that a Guidelines
sentence “is appropriate in this case.”
Because Robinson’s trial counsel argued at sentencing
for a lesser sentence of 120 months, this issue is preserved on
appeal. Lynn, 592 F.3d at 578; see also United States v.
Boulware,
604 F.3d 832, 838 (2010). Review in this court is
therefore under the harmless error standard.
Boulware, 604 F.3d
at 838; see also
Lynn, 592 F.3d at 581 (“we review the district
court’s sentencing procedure for abuse of discretion, and must
reverse if we find error, unless we can conclude that the error
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was harmless”). The Government has the burden of proving that
the district court’s error in this regard was harmless. Lynn,
592 F.3d at 585.
We conclude that the Government has failed to show
that the sentencing error was harmless. It is not clear whether
the district court’s explicit consideration of Robinson’s
arguments would have affected his sentence, nor is the record
sufficient to permit effective appellate review. We therefore
vacate Robinson’s sentence and remand for resentencing.
Robinson’s counsel also suggests in the Anders brief
that trial counsel may have been ineffective. Claims of
ineffective assistance of counsel are not cognizable on direct
appeal unless the record conclusively establishes that counsel
provided ineffective assistance. United States v. Baldovinos,
434 F.3d 233, 239 (4th Cir. 2006); see also United States v.
King,
119 F.3d 290, 295 (4th Cir. 1997). The record here does
not conclusively establish ineffectiveness.
Accordingly, we affirm Robinson’s conviction, vacate
his sentence, and remand for resentencing. In accordance with
Anders, we have reviewed the entire record in this case and
found no other meritorious issues. This court requires that
counsel inform Robinson in writing of his right to petition the
Supreme Court of the United States for further review. If
Robinson requests that a petition be filed, but counsel believes
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that such petition would be frivolous, counsel may move this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Robinson.
We 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 IN PART,
VACATED IN PART,
AND REMANDED
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