October 2, 2019
from the United States District Court for the Southern
District of Illinois. No. 3:17-CR-30041-DRH-1 - David R.
Bauer, Ripple, and Hamilton, Circuit Judges.
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.
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. 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.
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.
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.
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.
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.
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." 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 ... .
court began its response, "So, now that the defendant is
finished yelling at me ... ." The court then concluded
that Mr. Robinson had tried to "reargue his guideline
calculation ... despite the fact that his lawyer did a good
job ... ."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." 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."The court raised the total offense level to
33, which, combined with Mr. ...