Argued: October 29, 2013
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:11-cr-00131-FL-1). Louise W. Flanagan, District Judge.
Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for Appellant.
Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Judge Motz wrote the opinion, in which Judge Niemeyer joined. Judge Diaz wrote a separate opinion dissenting in part.
DIANA GRIBBON MOTZ, Circuit Judge:
Steven Robinson challenges his 140-month sentence for cocaine distribution, contending that the district court erred in assigning his drug quantity and in calculating his criminal history. For the reasons that follow, we affirm.
In 2010, police officers in Wilson, North Carolina, videotaped Robinson and two others making six crack-cocaine sales to a police informant. The Government indicted Robinson on one count of conspiring to distribute crack cocaine from 2002 to 2011, one count of aiding and abetting the distribution of crack cocaine, and six counts of distribution of crack cocaine. Robinson pled guilty to three of these counts in February 2012, but sought to proceed to trial on the remaining five counts. His two co-conspirators pled guilty the week before Robinson's scheduled trial. In light of these guilty pleas, Robinson himself pled guilty to the remaining five counts on April 30, 2012, the day on which his trial had been scheduled.
A presentence investigation report (PSR) drafted by a probation officer calculated Robinson's base offense level in light of the quantity of crack cocaine attributable to him. Although the counts to which Robinson pled guilty specify only that the crime involved " 50 grams or more" of crack cocaine, the Sentencing Guidelines require judges to consider all drug sales made by the defendant during the conspiracy -- including drug sales not covered by the counts of conviction. U.S.S.G. § 2D1.1 cmt.5.
In Robinson's case, the probation officer concluded that, between 2002 and 2011, Robinson sold far more crack cocaine than was implicated by the six sales the police captured on tape. In arriving at this conclusion, the probation officer relied on statements made to the police by Melvin Battle, who claimed to have purchased drugs from Robinson regularly from 2000 through 2008. Taking the low end of Battle's estimates, the probation officer estimated that Robinson sold Battle 1.43 kilograms of crack cocaine. This estimate, combined with the drug quantity covered by the counts of conviction, translated to a drug quantity calculation of 1.47 kilograms of crack cocaine, which produced a base offense level of 34. From this base offense level, the probation officer recommended a 3-level reduction for acceptance of responsibility, resulting in a recommended offense level of 31.
The PSR also contained a calculation of Robinson's criminal history category. The probation officer assigned Robinson one criminal history point based on a 2003 conviction for marijuana possession, and another point based on a 2009 conviction for resisting arrest and carrying a concealed weapon. The probation officer added two more points under Section 4A1.1(d) of the Sentencing Guidelines, which provides for an enhancement if the defendant committed the crime of conviction while on probation. The probation officer reasoned that Robinson had been given a one-day sentence of probation because of his 2003 marijuana conviction, and that this term coincided with the ongoing drug conspiracy. These four criminal history points produced a criminal history category of III.
Based on a criminal history category of III and an offense level of 31, the recommended Guidelines range in the PSR totaled 135-168 months imprisonment.
At sentencing, Robinson objected both to the calculation of drug quantity and the calculation of criminal history.
Robinson's challenge to his drug quantity rested on the PSR's reliance on the statement provided by Melvin Battle. Given the opportunity to address the court directly, Robinson pointed out that, before attributing 1.43 kilograms of crack to Robinson, Battle had in an earlier interview stated that Robinson sold him 6 kilograms of the drug. Robinson also argued that Battle's claim to have bought PCP cigarettes from Robinson in North Carolina from 2005 to 2008 was false because Robinson was enrolled in culinary school in Florida during most of that period. Contending that he never sold drugs to Battle, Robinson insisted that Battle was " blatantly lying" to curry favor with prosecutors.
In response, the Government conceded that Battle revised his statement to render his second drug-quantity estimate significantly lower than his first. But the Government argued that " it is not unusual for Defendants to estimate differently" when interviewed on two separate occasions.
According to the Government, Battle's second statement merely provided a more conservative and reliable estimate than the first. With respect to the PCP cigarettes Battle claimed to have bought when Robinson was in Florida, the Government emphasized that these sales did not figure into the PSR drug-quantity assignment.
The Government further defended the drug-quantity calculation by explaining that, notwithstanding the asserted deficiencies in Battle's statement, three other witnesses were prepared to state that Robinson sold them drugs during the conspiracy timeframe. Although these statements did not " make their way" to the probation office, the Government maintained that these accounts would put Robinson " in at ...