United States v. Robinson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4080

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC EUGENE ROBINSON,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00065-1)

Submitted: May 20, 2009 Decided: June 12, 2009

Before MOTZ, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Godwin Oyewole, Washington, D.C., for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Pursuant to a written plea agreement, Eric Eugene

Robinson pled guilty to possession with intent to distribute

cocaine base, 21 U.S.C. § 841(a)(1) (2006), and was sentenced to

151 months in prison. He now appeals, claiming that he was

wrongly sentenced as a career offender and that the sentence is

unreasonable. We affirm.

As part of his plea agreement, Robinson waived:

[his] right to seek appellate review of the
reasonableness of any sentence imposed by the District
Court, so long as that sentence falls within the range
established by the United States Sentencing
Guidelines. This waiver, however, does not prevent
[Robinson] from arguing for a sentence above or below
the guideline range at or before the sentencing
hearing, nor does it prevent [Robinson] from seeking
appellate review of the District Court’s calculation
of the guideline range, if an objection is properly
preserved.

At the plea colloquy, Robinson acknowledged that he had signed

the agreement with a full understanding of its terms. The

district court summarized the waiver and asked Robinson if he

understood it. Robinson replied that he did. The district

court accepted Robinson’s guilty plea upon the determination

that the plea was voluntarily and knowingly made with a full

understanding of its consequences.

Our review of the record convinces us that Robinson’s

plea was both knowing and voluntary and that Robinson understood

the full significance of the waiver of his appellate rights.

2
Further, his claim that his sentence is unreasonable falls

within the scope of that waiver. Accordingly, Robinson waived

his right to challenge the reasonableness of his sentence in

this appeal. See United States v. Blick, 408 F.3d 162, 168-69

(4th Cir. 2005); see also United States v. Johnson, 410 F.3d

137, 151 (4th Cir. 2005).

Robinson properly preserved his claim that a prior

conviction for assault should not qualify as a predicate felony

for career offender purposes, and his waiver does not foreclose

our consideration of this claim. However, we conclude that the

claim lacks merit.

The relevant guideline provides:

A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the
defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of
violence or a controlled substance offense.

U.S. Sentencing Guidelines Manual § 4B1.1(a) (2006). The first

two criteria are clearly satisfied. Further, Robinson does not

dispute that a 1988 robbery conviction was a qualifying

predicate felony.

He argues, instead, that his 2000 conviction for

second degree assault should not have been treated as the other

predicate felony because of disputed versions of that crime.

3
However, Robinson’s attorney conceded at sentencing that

“striking another individual with a knife in your hand”

technically qualified. We conclude that the conviction was

properly treated as a “crime of violence” because it is a felony

that “has as an element the use, attempted use, or threatened

use of physical force against the person of another.” See USSG

§ 4B1.2(a)(1).

We therefore affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

4