United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 3, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-20615
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
versus
ANTHONY ROBINSON, also known as Tony
Marcel Robinson,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-286-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and PRADO, Circuit Judges.
PER CURIAM:1
This court affirmed Anthony Robinson’s conviction and
sentence. United States v. Ingram, 96 Fed. Appx. 946 (2004). The
Supreme Court vacated and remanded for further consideration in the
light of United States v. Booker, 125 S.Ct. 738 (2005). Robinson
v. United States, 125 S. Ct. 1093 (2005). We requested and
received supplemental letter briefs addressing the impact of
Booker.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Robinson was convicted of marijuana offenses and conspiracy to
launder money. His sentence was enhanced based on the quantity of
drugs involved in the offenses, his leadership role in the
conspiracy, and obstruction of justice.
Robinson filed written objections to the PSR, contending that
his base offense level had been based on drug amounts that had not
been proven beyond a reasonable doubt. He also objected to the
enhancements for his leadership role and for obstruction of
justice, on the ground that there was insufficient evidence to
support those enhancements. In addition, he objected that the
statutes of conviction, 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B), are
unconstitutional as a result of Apprendi v. New Jersey, 530 U.S.
466 (2000).
At the sentencing hearing, Robinson’s counsel stated, in
response to the court’s comment about consideration of evidence as
to an acquitted count:
I want to be clear for the record, Your Honor.
I think we stated this in our brief. I expect
that the Supreme Court, given certain things
that were said in some of the various Apprendi
opinions, may change that. I want to be clear
that we’re asking for it to apply reasonable
doubt standard with respect to any quantity
issues. I know what the law in the Fifth
Circuit is right now. We are hoping that will
change at some point.
Robinson’s counsel also objected to the enhancements for leadership
role and obstruction of justice, and argued that the Government had
the burden of proving the applicability of those enhancements
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beyond a reasonable doubt rather than by a preponderance of the
evidence.
The district court found that the enhancements for leadership
role and obstruction of justice applied, but lowered the drug
quantity determined by the PSR. Pursuant to Robinson’s request,
the district court found that Robinson’s leadership role had been
established beyond a reasonable doubt. The district court
determined the guideline imprisonment range to be 235 to 293
months, and sentenced Robinson to 235 months in prison, commenting
that “I do think this is a very stiff range.”
In his supplemental brief, Robinson argues that the district
court erred when it applied the Sentencing Guidelines as mandatory
rather than advisory and sentenced Robinson above the sentencing
range supported by the jury verdict and Robinson’s criminal
history. He contends that he properly preserved this issue by
challenging the sufficiency of the evidence supporting the
enhancements, and by arguing that the enhancements had to be proved
beyond a reasonable doubt. Robinson also contends that the
district court plainly erred by failing to consider the factors set
forth in 18 U.S.C. § 3553(a).
The Government counters that Robinson’s objections in the
district court are insufficient to preserve a Booker claim, because
although Robinson objected that the statutes of conviction are
unconstitutional after Apprendi because drug type and quantity are
elements of the offense, he did not object that the Guidelines are
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unconstitutional under Apprendi’s reasoning or that the Sixth
Amendment and/or Apprendi require that enhancements for drug
quantity, leadership role, and obstruction of justice be proved to
a jury. Furthermore, the Government asserts that although Robinson
objected to the standard of proof at sentencing regarding drug
quantity and the leadership role enhancement, he wanted the court
-- not the jury -- to determine those increases beyond a reasonable
doubt rather than by a preponderance of the evidence.
To preserve Booker error, a defendant need not mention the
Sixth Amendment, Apprendi, or Blakely v. Washington, 542 U.S. 296
(2004). However, the defendant must “adequately apprise[] the
court that he was raising a constitutional error.” United States
v. Olis, 429 F.3d 540, 544 (5th Cir. 2005). The argument must be
couched in terms that the facts used to enhance the sentence were
not proved to a jury beyond a reasonable doubt. Under our
precedent, Robinson’s objections, although less than pellucid,
adequately apprised the district court that he was raising a
constitutional error under Apprendi. See United States v. Akpan,
407 F.3d 360, 376, 377 (5th Cir. 2005) (objection to calculation of
range of financial loss on ground that figure had not been proven
at trial, and objection that district court should confine its
determination of loss to amount alleged in indictment “adequately
apprised the district court that [defendant] was raising a Sixth
Amendment objection to the loss calculation because the government
did not prove to the jury beyond a reasonable doubt that the loss
4
was between five to ten million dollars”); see also United States
v. Olis, 429 F.3d 540, 544 (5th Cir. 2005) (defendant preserved
Booker error when objecting to district court’s loss calculation by
alerting “the court to cases that acknowledged the potential for a
constitutional violation when sentencing facts are not found by at
least clear and convincing evidence”); United States v. Pineiro,
410 F.3d 282, 283-85 (5th Cir. 2005) (defendant’s Apprendi-based
objection to PSR’s drug-quantity calculations was sufficient to
preserve his Booker claim).
When, as here, a defendant preserves Booker error, “we will
ordinarily vacate the sentence and remand, unless we can say the
error is harmless under Rule 52(a) of the Federal Rules of Criminal
Procedure.” United States v. Mares, 402 F.3d 511, 520 n.9 (5th
Cir.), cert. denied, 126 S.Ct. 43 (2005). The Government bears the
“burden of demonstrating that the error was harmless by
demonstrating beyond a reasonable doubt that the federal
constitutional error of which [Robinson] complains did not
contribute to the sentence that he received.” United States v.
Pennell, 407 F.3d 360, 377 (5th Cir. 2005). The Government argues
that any error is harmless, because the sentence that Robinson
received is reasonable. The Government has not met its burden of
proof -- it has not pointed to any evidence in the record or
statements by the district court that would prove beyond a
reasonable doubt that the district court would have imposed the
same sentence had it acted under an advisory Guidelines regime.
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For the foregoing reasons, we VACATE Robinson’s sentence and
REMAND the case to the district court for resentencing.
VACATED and REMANDED.
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