Filed: Aug. 08, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4911 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JACKIE EUGENE ROBINSON, a/k/a June Bug, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cr-00462-RBH-4) Submitted: July 31, 2013 Decided: August 8, 2013 Before AGEE, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Henry M. Anderson, J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4911 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JACKIE EUGENE ROBINSON, a/k/a June Bug, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cr-00462-RBH-4) Submitted: July 31, 2013 Decided: August 8, 2013 Before AGEE, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Henry M. Anderson, Jr..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4911
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACKIE EUGENE ROBINSON, a/k/a June Bug,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00462-RBH-4)
Submitted: July 31, 2013 Decided: August 8, 2013
Before AGEE, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry M. Anderson, Jr., ANDERSON LAW FIRM, PA, Florence, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jackie Eugene Robinson pled guilty, pursuant to a plea
agreement, to conspiracy to possess with intent to distribute
and distribute five kilograms or more of cocaine and fifty grams
or more of cocaine base, in violation of 21 U.S.C. § 846 (2006).
After granting the Government’s motion for a downward departure
based on Robinson’s substantial assistance and Robinson’s motion
for a downward variance, the court sentenced Robinson to 120
months’ imprisonment. See U.S. Sentencing Guidelines Manual
§ 5K1.1 (2010). Robinson subsequently filed a 28 U.S.C.A.
§ 2255 (West Supp. 2013) motion, arguing that he should receive
the benefit of the Fair Sentencing Act of 2010 (“FSA”), Pub. L.
No. 111-220, 124 Stat. 2372. The Government agreed, and the
court ordered that Robinson be resentenced.
Prior to Robinson’s resentencing, the Government filed
a motion to reduce sentence under Fed. R. Crim. P. 35(b) for
substantial assistance that Robinson provided after his original
sentencing. At resentencing, the court granted the Government’s
motion for a downward departure and considered the assistance
Robinson had provided the Government both before and after his
original sentencing. The court also granted Robinson’s motion
for a downward departure or variance. The court ultimately
sentenced Robinson to 100 months’ imprisonment. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
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U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether Robinson’s sentence is
reasonable. Robinson has filed a pro se supplemental brief,
raising additional challenges to his sentence.
We review Robinson’s sentence for reasonableness under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 41 (2007). A sentence is procedurally
reasonable if the district court properly calculates the
defendant’s advisory Guidelines range, gives the parties an
opportunity to argue for an appropriate sentence, considers the
18 U.S.C. § 3553(a) (2006) factors, does not rely on clearly
erroneous facts, and explains sufficiently the selected
sentence. Id. at 49-51. Our review of the record reveals that
Robinson’s sentence is procedurally reasonable.
Finding no procedural error, we next consider the
substantive reasonableness of Robinson’s sentence, “tak[ing]
into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. at 51.
Because Robinson’s sentence is below the properly calculated
Guidelines range, we apply a presumption on appeal that the
sentence is substantively reasonable. United States v. Susi,
674 F.3d 278, 289 (4th Cir. 2002). This presumption may only be
rebutted if Robinson shows “that the sentence is unreasonable
when measured against the § 3553(a) factors.” United States v.
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Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted).
Comparing his original sentence with his new sentence,
Robinson argues that he is entitled to a greater sentence
reduction. We conclude, however, that the district court was
not required to grant the same downward variance at resentencing
as it did at Robinson’s original sentencing. See United
States v. Muhammed, 478 F.3d 247, 250 (4th Cir. 2007) (holding
that, when original sentence is vacated in its entirety, “prior
sentencing proceedings [are] nullified,” and district court
conducts resentencing de novo). Moreover, we conclude that
Robinson’s sentence was reasonable in light of the § 3553(a)
factors, as it is clear that the court considered the special
circumstances of Robinson’s case and carefully balanced
Robinson’s substantial assistance with the seriousness of his
crime.
Robinson also suggests that counsel rendered
ineffective assistance by failing to advocate for a greater
sentence reduction in light of the additional substantial
assistance outlined in the Government’s Rule 35(b) motion.
Claims of ineffective assistance of counsel “are generally not
cognizable on direct appeal . . . unless it conclusively appears
from the record that defense counsel did not provide effective
representation.” United States v. Benton, 523 F.3d 424, 435
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(4th Cir. 2008) (internal quotation marks omitted). The record
here does not clearly demonstrate that counsel failed to
effectively advocate for a sentence reduction based on the
substantial assistance Robinson provided to the Government both
before and after his original sentencing. Because the face of
the record does not unambiguously demonstrate that counsel was
ineffective, this claim is not cognizable on direct appeal.
Finally, Robinson suggests that the district court
created an unwarranted sentencing disparity between his co-
defendant and him by failing to reduce Robinson’s sentence both
under the FSA and pursuant to the Rule 35(b) motion. Robinson’s
argument is without merit: the district court did in fact reduce
Robinson’s sentence both under the FSA and pursuant to the
substantial assistance outlined in the Rule 35(b) motion.
Moreover, as we have repeatedly stated, the sentencing factor
addressing sentencing disparities, 18 U.S.C. § 3553(a)(6), is
aimed primarily at eliminating national sentencing inequity, not
differences between the sentences of co-defendants. United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also
United States v. Simmons,
501 F.3d 620, 623-24 (6th Cir. 2007)
(collecting cases).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
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requires that counsel inform Robinson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Robinson requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in 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 this court and argument would not aid the decisional
process.
AFFIRMED
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