UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES SCOTT ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-02-80-H)
Submitted: September 22, 2006 Decided: November 1, 2006
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Ayers, II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North
Carolina, for Appellant. Frank DeArmon Whitney, United States
Attorney, Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Scott Robinson was convicted of three counts of
conspiracy, in violation of 18 U.S.C.A. § 371 (West 2000); three
counts of armed bank robbery, aiding and abetting, in violation of
18 U.S.C.A. § 2113(a) (West 2000); six counts of brandishing a
firearm during a crime of violence, in violation of 18 U.S.C.A. §
924(c) (West 2000); five counts of interfering with commerce by
robbery, aiding and abetting, in violation of 18 U.S.C.A. § 1951
(West 2000); and two counts of discharging a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c) (West 2000). At the initial sentencing hearing, the
district court granted Robinson’s request for a downward departure
for diminished capacity over the Government’s objection and
sentenced Robinson to a total of 384 months’ imprisonment and five
years’ supervised release.
Robinson appealed his convictions and sentence; the
Government cross-appealed, contending the district court erred in
granting the downward departure. We affirmed Robinson’s
convictions but reversed his sentence and remanded to the district
court for resentencing. See United States v. Robinson, 404 F.3d
850, 862 (4th Cir.) (holding that United States v. Booker, 543 U.S.
220 (2005), “did nothing to alter the rule that judges cannot
depart below a statutorily provided minimum sentence” except upon
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the Government’s motion on the basis of substantial assistance)
cert. denied, 126 S. Ct. 288 (2005).1
At the second sentencing hearing, the district court
imposed a term of 193 years and three months’ imprisonment.
Robinson again appealed. His counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending there exist
no meritorious issues for appeal but asserting that the sentence
imposed by the district court on remand violates the Eighth
Amendment’s prohibition against cruel and unusual punishment.
Although notified of his right to submit a pro se supplemental
brief, Robinson has not done so.
We previously reversed Robinson’s sentence because it was
below the statutory minimum, and remanded for resentencing in
conformity with that opinion. See Robinson, 404 F.3d at 863. The
district court resentenced Robinson in accordance with the mandate
rule. “[I]n the absence of exceptional circumstances, . . . [the
mandate rule] compels compliance on remand with the dictates of a
1
The sentence from which the district court departed “was
calculated as follows: 84 months for the first [18 U.S.C.] § 924(c)
[(2000)] conviction, 300 months consecutive for the seven
additional § 924(c) convictions, and 135 months for the armed
robbery counts.” Robinson, 404 F.3d at 862. After granting
Robinson a downward departure for diminished capacity, the district
court sentenced Robinson to 384 months’ imprisonment, “running only
the first § 924(c) conviction and one additional § 924(c)
conviction consecutively.” Id. This sentence violated the
applicable statute, which “provides, in relevant part, that ‘no
term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed
on the person.’” Id. (quoting 18 U.S.C. § 924(c)(1)(D)(ii) (2000)).
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superior court and forecloses relitigation of issues expressly or
impliedly decided by the appellate court.” United States v. Bell,
5 F.3d 64, 66 (4th Cir. 1993) (citation and internal quotation
marks omitted). Furthermore, we noted that while the sentence
Robinson faced on remand “may seem manifestly unjust given
Robinson’s age and well-documented intellectual limitations, it is
the result mandated by Congress.” Robinson, 404 F.3d at 862.
Although “[s]evere, mandatory penalties” such as those imposed on
Robinson “may be cruel, . . . they are not unusual in the
constitutional sense.” Harmelin v. Michigan, 501 U.S. 957, 994
(1991).2
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court 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
2
Moreover, “proportionality review is not available for any
sentence less than life imprisonment without the possibility of
parole.” United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th
Cir. 2001).
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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