United States Court of Appeals
For the First Circuit
No. 05-1547
UNITED STATES,
Appellee,
v.
ANTHONY WAYNE ROBINSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jeffrey Silverstein on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
December 23, 2005
STAHL, Senior Circuit Judge. Anthony Robinson pled
guilty to a charge under the Violence Against Women Act, 18 U.S.C.
§ 2262, for the interstate violation of a protective order. The
district court concluded that the federal Sentencing Guidelines
recommended application of the maximum sentence authorized by the
statute, a term of 5 years, and sentenced Robinson accordingly.
Robinson now contests the court's application of a sentencing
enhancement for prior threatening and abusive behavior and
challenges the court’s failure to reduce his sentence for
acceptance of responsibility. Finding that the sentence imposed
was reasonable, we reject Robinson's challenges.
I. Background
Until 2004, Anthony Robinson lived in the state of
Washington. In 2003, he began a short prison term for assaulting
his wife, Rebecca. Upon his release in 2004, a protective order
issued by the state court in Washington came into effect. The
order barred Robinson from having any contact with his wife.
In the summer of 2004, Robinson fled Washington and
headed for Maine with his wife and two children in tow. In June,
a man identifying himself as Rebecca's father called the county
sheriff's office in Hancock County, Maine, to inform that office
that he had reason to believe that Robinson and his wife had
settled in the county after leaving the state of Washington. Soon
afterwards, the Washington Department of Human Services contacted
-2-
its Maine counterpart to ask it to locate the Robinsons' children
and investigate their well-being. The Maine agency in turn
supplied the sheriff's department with information that enabled the
investigating detective from that office to locate the Robinson
family. Robinson and his wife were found living together at a
campground and working at a local cannery. Robinson was arrested
and charged with violating the federal statute that prohibits the
interstate violation of a protective order, 18 U.S.C. § 2262.
Robinson pled guilty to the charge without a plea
agreement. The court explained to Robinson that it was not bound
by the government's sentencing recommendations and that if it
departed from those recommendations, Robinson would not be entitled
to revoke his guilty plea. Robinson acknowledged that he
understood these conditions, and the court accepted the guilty
plea. The U.S. Probation Office prepared and submitted to the
parties a proposed presentence investigation report that concluded
that the applicable Guidelines sentencing range was 46 to 57
months. After Robinson objected to some portions of the report,
the Probation Office submitted to the court a final, revised report
that recommended a sentence of between 37 and 46 months.
The court, sentencing Robinson in April 2005, after the
Supreme Court decided United States v. Booker, 125 S. Ct. 738
(2005), appropriately understood the Guidelines to be merely
advisory but nevertheless an important consideration in sentencing,
-3-
and applied the Guidelines to Robinson's case to determine an
appropriate sentence. Having done so, the court found the
applicable range to be substantially higher than the range
suggested by the final presentence report.
The Guidelines, the court noted, supply a base offense
level of 18 for violations of § 2262. See USSG § 2A6.1. Robinson
requested that the court reduce his sentence under USSG § 3E1.1
because he had accepted responsibility for his conduct, but the
court determined that he did not merit such a reduction. The court
applied a two-level enhancement to the offense level under USSG §
2A6.2(b)(1)(D) because the crime involved a pattern of activity
involving the same victim.
In his sentencing order, the district judge noted that
the burden of demonstrating eligibility for acceptance of
responsibility lies with the defendant, and that Robinson had not
carried his burden. Although he pled guilty to the offense, which
went some way towards demonstrating contrition, the judge was
unconvinced. The judge found that three facts strongly suggested
that Robinson had not fully accepted responsibility for his crime.
First, Robinson attempted to justify his flight from Washington,
which he explained was motivated in part by his desire to put some
distance between the Robinson family and Rebecca's father, who was
constantly "trying to get [Robinson] locked up." Second, Robinson
tried to excuse his conduct: he told the court that he been advised
-4-
by an attorney that the order had no effect outside of the state of
Washington, and so had believed that by moving to Maine he could
evade the restrictions the protective order had imposed. Third,
and most important, Robinson persisted in making illegal contact
with Rebecca: while he was incarcerated pending sentencing,
Robinson had written a number of letters to his wife. Some of
these letters were gentle, some threatening, but all were written
in violation of the still-active protective order, which prohibited
communication between Robinson and his wife. This ongoing contact
with his wife, the judge found, demonstrated that Robinson had not
accepted that his continued contact with Rebecca had been wrongful.
The court next considered the applicability of USSG §
2A6.2(b)(1)(D), which provides for a two-level enhancement of a
defendant's offense level where the criminal activity under 18
U.S.C. § 2262 "involves . . . a pattern of activity involving
stalking, threatening, harassing, or assaulting the same victim."
The judge noted three past incidents in which it was demonstrated
by a preponderance of the evidence that Robinson had harassed,
threatened, or assaulted Rebecca. These included: an attempt by
Robinson to choke his wife on April 20, 2003, in Lakewood,
Washington, which resulted in an assault conviction; a second
incident of abuse in Pierce County, Washington, on March 31, 2004,
which resulted in a second assault conviction; and the series of
letters to Rebecca that Robinson had written while incarcerated and
-5-
awaiting sentencing on the instant charge, which were prohibited by
the protective order and in some of which Robinson threatened
Rebecca with harm. These incidents, the district court concluded,
constituted a pattern of activity that merited a two-level
enhancement under § 2A6.2(b)(1)(D).
The court determined that Robinson merited a criminal
history level of V, a determination that is not challenged here.
With the two-step enhancement to his base offense level in place,
Robinson's offense level was 20. The criminal history level and
offense level taken together yielded a recommended sentence of 63
to 78 months. The maximum sentence Robinson could receive under §
2262 was 60 months, and the court therefore imposed the full
maximum sentence. Robinson timely appealed his sentence.
II. Analysis
On appeal, Robinson challenges the district court's
decisions to deny him an acceptance-of-responsibility reduction and
to impose the pattern-of-activity enhancement. We discuss each
issue in turn.
A. Enhancement for Pattern of Activity
1. Standard of Review
Robinson was sentenced in April 2005, after the Supreme
Court decided United States v. Booker, 125 S. Ct. 738 (2005). In
Booker, the Supreme Court excised the portions of the U.S. Code
that purported to make the United States Sentencing Guidelines
-6-
binding upon the district courts during sentencing. After Booker,
the Guidelines are merely advisory, which means that a district
court has considerable leeway to impose a sentence that falls
outside of the range suggested by the Guidelines.
In Booker, the Court also severed and excised 18 U.S.C.
§ 3742(e), the portion of the Federal Sentencing Act that once
provided the standard under which courts of appeals would review
sentences. See Booker, 123 S. Ct. at 765. To fill the vacuum thus
created, the Court named the new standard: courts of appeals would
review sentences for "reasonableness." Id.
Before proceeding to evaluate Robinson's claims, we must
determine what reasonableness review means when we are faced with
a challenge to a sentencing court's legal interpretation of a
Guidelines provision. In the past, our general rule has been to
review interpretations of the legal meaning of the Guidelines de
novo. See United States v. DiSanto, 86 F.3d 1238, 1254 (1st Cir.
1996). We conclude that Booker's new reasonableness standard
leaves our review of such questions unchanged.
Despite Booker's excision of certain portions of the
statute, the Sentencing Act still imposes certain requirements on
a sentencing court. It prescribes a set of factors, set forth at
18 U.S.C. § 3553(a), that a sentencing court must take into account
in imposing a sentence. In Booker, the Supreme Court recognized
that those factors would guide appellate review for reasonableness.
-7-
See Booker, 125 S. Ct. at 766 ("Section 3553(a) remains in effect,
and sets forth numerous factors that guide sentencing. Those
factors in turn will guide appellate courts, as they have in the
past, in determining whether a sentence is unreasonable.").
Among the factors that a district court must consider is
the sentencing range recommended by the Guidelines. 18 U.S.C. §
3553(a)(4)(A). A sentencing court is still required to "consult
[the] Guidelines and take them into account when sentencing."
Booker, 125 S. Ct. at 767. The court is not bound to impose a
sentence within the range the Guidelines recommend, of course, and
may depart from it if it reasonably concludes that the other § 3553
factors warrant such a departure. However, so far as the
Guidelines bear upon the sentence imposed, the court's calculation
must be correct, subject of course to the limitations of plain
error or harmless error review. To this extent, then, the court
must rely, in imposing a sentence, on a correct understanding of
the legal meaning of the Guidelines.
We conclude therefore that the decision in Booker did not
disturb the standard of review that we apply to a district court's
interpretation of the Guidelines. We will continue to determine
the legal meaning of Guidelines provisions de novo. This
conclusion is, to our knowledge, consistent with the conclusion
reached by those of our sister circuits that have resolved the
standard of review to be applied to a post-Booker sentence imposed
-8-
under the Guidelines. See, e.g., United States v. Crosby, 397 F.3d
103, 114 (2d Cir. 2005); United States v. Villegas, 404 F.3d 355,
359 (5th Cir. 2005); United States v. Hazelwood, 398 F.3d 792,
794-95, 800-01 (6th Cir. 2005); United States v. Doe, 398 F.3d
1254, 1257-58 & n. 5 (10th Cir. 2005); United States v. Price, 409
F.3d 436, 442 (D.C. Cir. 2005).
Having determined the appropriate standard of review, we
now turn to Robinson's USSG § 2A6.2(b)(1)(D) arguments.
2. Government Waiver
The U.S. Probation Office prepared and submitted to the
parties a proposed presentence investigation report, which did not
recommend application of § 2A6.2(b)(1)(D). The government stated
that it had no objections to the recommendations made in the
report. Robinson, however, registered a number of objections. The
probation office revised the report in response to Robinson's
objections, and submitted the revised version to the district
court. In a memorandum submitted to the court only in response to
the revised presentence report, the government for the first time
asked the court to apply § 2A6.2(b)(1)(D).
Robinson argues that, because the government had an
opportunity to ask the court to apply § 2A6.2(b)(1)(D) before
submission of the revised report, and did not avail itself of that
opportunity, the government waived any possible application of that
guideline, and that the court was therefore wrong to apply it. The
-9-
application of a particular guideline and imposition of a sentence
are not, however, the government's to waive in a case, such as this
one, where the defendant has pled guilty without the benefit of a
plea agreement as to sentencing. See Fed. R. Crim. P. 11(c)(1)(C)
& (c)(4). Robinson's argument supposes that the presentence
report limits the sentence the court may impose, but that is simply
not the case. The presentence report and the government's response
to it are advisory, intended to help the district court arrive at
an appropriate sentence. The responsibility, and with it the
power, to recognize the applicable law and impose a sentence under
it belong to the judge. See United States v. Miller, 116 F.3d 641,
685 (2d Cir. 1997) ("[T]he sentencing judge is not bound by the
recommendations of the PSR . . . ."); United States v. Gordon, 895
F.2d 932, 936 (4th Cir. 1990) ("[T]he decision of the district
court on whether to apply a particular guideline is not controlled
by the probation officer's recommendation."). The court was
therefore free to impose a sentence under the Guidelines regardless
of the recommendations in the presentence report or whether any
objections to that report were raised by the government.
3. Necessity of Review
The government next argues that we need not consider
Robinson's argument about the applicability of USSG §
2A6.2(b)(1)(D), because the question is of no more than academic
interest. This is because, the government says, the sentence
-10-
Robinson received, which incorporated a 2-level enhancement under
§ 2A6.2(b)(1), would have been permissible even if the court had
found that section inapplicable. The government notes that, with
§ 2A6.2(b)(1)(D) taken into account, the Guidelines recommended
sentencing at greater than 60 months, the statutory maximum, while
without § 2A6.2 in the mix, the recommended range would have been
51 to 63 months. The government is correct that a 60-month
sentence was compliant with the Guidelines in either case, but if
the § 2A6.2 enhancement had not been applied, the district court
could have imposed a 51-month sentence without departing from the
Guidelines.
We need not decide, however, whether the facts of this
case are such that we are compelled to determine the proper meaning
of the Guidelines provision at issue. We think it prudent to
address the question in order to provide some guidance to the
district courts on an uncommon issue of Guidelines interpretation.
We therefore assume arguendo that Robinson would be entitled to
relief were we to find the district court to have been in error,
reach the question of the applicability of § 2A6.2(b)(1)(D) in
Robinson's case, and find that the district court committed no such
error.
-11-
4. Applicability of USSG § 2A6.2(b)(1)(D)
Robinson contests the application of USSG §
2A6.2(b)(1)(D) to raise his offense level from 18 to 20.1 Section
2A6.2(a) provides a base offense level of 18 for a violation of 18
U.S.C. § 2262. Section 2A6.2(b)(1)(D) then provides: "If the
offense involved . . . a pattern of activity involving stalking,
threatening, harassing, or assaulting the same victim, increase
[the offense level] by 2 levels." Robinson argues that the
provision is inapplicable for two reasons.
First, Robinson contends that § 2A6.2(1)(D)(b) was
inapplicable because the conduct that resulted in the conviction,
which is to say, Robinson's journey to Maine with Rebecca, was not
an act of stalking, threatening, harassment, or assault. Whether
the offense was an act of stalking, threatening, harassment, or
assault is not the question, however, but whether the act "involved
. . . a pattern of activity involving" such acts. This language is
hardly of crystal clarity, but we conclude that it encompasses the
1
Robinson also contests any application of USSG §
2A6.2(b)(1)(A), which provides an additional two-level enhancement
where a violation of the relevant statute involves the violation of
a protective order. He contends that to apply the guideline would
be to engage in impermissible double-counting, because it would
involve counting the violation of the protective order against him
for purposes of both conviction under the statute and sentencing
under the Guidelines. We need not consider the issue, however,
because the district court did not rest its sentencing decision on
§ 2A6.2(b)(1)(A). It noted instead that the application of §
2A6.2(b)(1)(D) raised the lower end of the Guidelines sentencing
range above the statutory maximum, and so mooted the question
whether any additional enhancements were warranted.
-12-
activity here. The challenge is to identify a pattern of activity
that fits the guideline description, and to determine whether the
offense "involves" that pattern. Robinson's persistent abuse of
his wife, consisting of at least the two incidents of assault and
the sending of multiple threatening letters, constitutes the
proscribed pattern of activity. The offense involved that pattern,
because it consisted of the violation of a protective order whose
only purpose was to protect Rebecca from that abusive behavior.
Robinson also argues that the guideline is inapplicable
because it contemplates a "victim," and Robinson's wife cannot be
considered a victim because, he alleges, she gave her consent to
travel with him to Maine. The district court rightly concluded
that this argument is frivolous. The guideline calls for an
enhancement when the charged crime "involved . . . a pattern of
activity involving stalking, threatening, harassing, or assaulting
the same victim." USSG § 2A6.2. As we have just noted, the
pattern of activity in question consisted of two incidents in which
Robinson assaulted his wife, and more than one instance in which he
threatened her. The question is whether she was the "victim" of
the activity which constituted the requisite pattern, and this she
plainly was. The district court was correct to apply a two-level
enhancement under USSG § 2A6.2(b)(1)(D).
-13-
B. Acceptance of Responsibility
We have in the past ordinarily reviewed a district
court's determination whether a defendant accepted responsibility
for clear error, because that determination is a fact-dominated
enterprise, and clear error is the standard under which we
generally review a district court's findings of fact. See United
States v. McLaughlin, 378 F.3d 35, 37-38 (1st Cir. 2004). We have
further explained that clear error is the appropriate standard
because "[c]redibility and demeanor play a crucial role in
determining whether a person is genuinely contrite," and the
sentencing judge "has the unique opportunity of observing the
defendant . . . and evaluating acceptance of responsibility in a
live context against the backdrop of the case as a whole." United
States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990).
Before proceeding, we must again consider the effect, if
any, of Booker on our review of sentencing determinations and
decide whether Booker's holding that sentences will be reviewed for
reasonableness affects our standard of review where a defendant
challenges the factual findings of a district court. We conclude
that nothing in Booker suggests that our review of district court
fact-finding need change, despite the Court's excision in that case
of 18 U.S.C. § 3742(e) from the U.S. Code, discussed above.
We review fact-finding by a district court for clear
error in myriad contexts in both criminal and civil cases. See,
-14-
e.g., United States v. McKoy, 428 F.3d 38, 39 (1st Cir. 2005);
United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995); Fed. R.
Civ. P. 52(a). This approach is supported by the commonsensical
recognition that a district court's position is a superior vantage
from which to evaluate the many factors that inform a factual
determination. We are in only a poor position to reevaluate the
district court's assessment of questions of credibility and
demeanor, for example, and can see no reason why Booker would
change our assessment of the deference due to the district court as
the primary finder of fact. Instead, we hold that a sentence will
be vacated as unreasonable under Booker if it is predicated on a
clearly erroneous view of material facts.
Here, we find no error. While a guilty plea and a
truthful account of the conduct constituting an offense are
significant evidence of a defendant's acceptance of responsibility,
they are not conclusive. See United States v. Hardy, 99 F.3d 1242,
1246 (1st Cir. 1996); USSG § 3E1.1, cmt. n. 3. While the
defendant's statement to the court suggested some degree of
acceptance of responsibility for the crime he had committed, it
also contained assertions inconsistent with such an acceptance.
Even more important to the district court's determination, however,
was the fact that, while in prison pending sentencing, Robinson
wrote a series of threatening letters to his wife, a form of
communication that the protective order then in force expressly,
-15-
and by Robinson’s own acknowledgment, forbade. The district court
thought that Robinson's ongoing violation of the very protective
order for whose violation he was then incarcerated was flatly
inconsistent with an acceptance of responsibility for the prior
violation of that protective order. That determination appears to
us to be utterly supportable, and we therefore find no error in the
district court's decision not to reduce Robinson's sentence under
USSG § 3E1.1.
III. Conclusion
For the reasons stated herein, we affirm the sentence
imposed by the district court.
-16-