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United States v. Robinson

United States Court of Appeals, Seventh Circuit

November 7, 2019

United States of America, Plaintiff-Appellee,
v.
Arthur L. Robinson, Defendant-Appellant.

          Argued October 2, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:17-CR-30041-DRH-1 - David R. Herndon, Judge.

          Before Bauer, Ripple, and Hamilton, Circuit Judges.

          PER CURIAM.

         Arthur Robinson pleaded guilty to unlawfully possessing a firearm. At his sentencing hearing, the district court considered and rejected defense counsel's argument that the Sentencing Guidelines calculation double counted Mr. Robinson's past convictions. Mr. Robinson raised the argument again when he had the opportunity to speak. He also attempted to mitigate his conduct by explaining the circumstances surrounding his arrest. The court rejected Mr. Robinson's arguments as frivolous and then revoked the three-point reduction for acceptance of responsibility that it had granted him earlier. Because the district court clearly erred in concluding that Mr. Robinson did not accept responsibility, we vacate the judgment and remand for resentencing.

         I.

         BACKGROUND

         In September 2016, a police officer observed a parked vehicle, with its motor running, blocking the flow of traffic in East St. Louis, Illinois. The officer approached the vehicle and observed Mr. Robinson sleeping in the driver's seat; in his lap was a handgun with an extended magazine. The officer removed the handgun and secured it in his patrol car. He then woke Mr. Robinson and asked for his driver's license. Mr. Robinson gave his license to the officer and told him that he was a convicted felon. The officer placed him under arrest.[1] Mr. Robinson was charged with unlawfully possessing a firearm, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and he pleaded guilty without the benefit of a plea agreement.

         Before sentencing, a probation officer calculated the range of imprisonment under the Sentencing Guidelines. Because Mr. Robinson was an armed career criminal under 18 U.S.C. § 924(e), the appropriate offense level was "the greatest of" either the calculation under U.S.S.G § 2K2.l(a)(1) or § 4Bl.4(b)(3)(B). See U.S.S.G. § 4Bl.4(b). Each of these calculations took into account Mr. Robinson's prior felony convictions. The probation officer deemed the offense level of 33 under § 4B1.4(b)(3)(B) to be the correct selection among the two, because it was higher than the level of 26 under § 2K2.1(a)(1). The officer then subtracted 3 points for acceptance of responsibility (for a total offense level of 30) because Mr. Robinson had clearly demonstrated acceptance of responsibility for the offense and assisted authorities by timely notifying them of his intention to plead guilty. See U.S.S.G. §3E1.1. Although the offense level, combined with Mr. Robinson's criminal history category of IV, yielded a sentencing range of 135 to 168 months' imprisonment, the statutory minimum was 180 months. See § 922(g)(1); § 924(e)(1). The probation officer recommended a term of 180 months' imprisonment to be followed by 2 years of supervised release.

         At the sentencing hearing, the district court heard argument on Mr. Robinson's objection that the probation officer's guidelines calculation improperly double counted his past convictions. Counsel argued that Mr. Robinson's prior felony convictions could not be used to support the calculation of his base offense level under both U.S.S.G. § 2K2.1(a)(1) and § 4B1.4(b)(3)(B). The Government maintained that the probation officer properly calculated the offense levels and urged the court to adopt that calculation.

         Agreeing with the Government, the district court adopted the probation officer's guidelines calculation. The court also accepted the probation officer's recommendation to reduce the total offense level by 2 points because Mr. Robinson had accepted responsibility and then granted the Government's motion to subtract another point for a total of 3 points. The Government requested a sentence of 180 months' imprisonment, the statutory minimum.

         Mr. Robinson then spoke on his own behalf. First, he reiterated his counsel's argument that the probation officer had double counted his past convictions and contended that he should not qualify for an armed career criminal enhancement. He explained his interpretation of the Sentencing Guidelines and cited case law to support his contention that two, not three, felony convictions could be used against him.

         Next, Mr. Robinson made arguments in mitigation: his previous convictions for selling drugs arose from events that happened about twenty years ago, and he was a changed man; he was steadily employed; and he had dedicated himself to his family and his church. Finally, Mr. Robinson described how he came to possess the gun on the day he was arrested. He explained that after he got off work, he pulled into a nightclub parking lot where people were gathered. He offered a young man a ride home; the man got into the car, but then got out to talk to someone, leaving a gun "laying on the seat."[2] Mr. Robinson stated that he was

... fi[xing] to turn around [and] bring the gun back to him but I did not want to get into whatever he [was] fi[xing] to do. So, Your Honor, I took [the] full charge, accept responsibility for this charge, Your Honor, so I decided to keep it. I couldn't give it back to the public or the community or give it back to him ... .[3]

         The court began its response, "So, now that the defendant is finished yelling at me ... ."[4] The court then concluded that Mr. Robinson had tried to "reargue his guideline calculation ... despite the fact that his lawyer did a good job ... ."[5]Quoting commentary in the Guidelines, the court noted that, although the defendant could have "remain[ed] silent," a defendant who "frivolously contests[, ] relevant conduct that the [c]ourt determines to be true has acted in a manner inconsistent with ... acceptance of responsibility."[6] The court concluded that Mr. Robinson had not "falsely denie[d]" relevant conduct, but nonetheless it found "[o]n the basis of the defendant's statement... that his efforts at a sort of motion to reconsider ... [were] frivolous ... and as a result... the defendant does not qualify for acceptance of responsibility."[7]The court raised the total offense level to 33, which, combined with Mr. ...


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