Case: 18-30682 Document: 00514938671 Page: 1 Date Filed: 05/01/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30682 FILED
Summary Calendar May 1, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLARENCE ROBINSON, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:94-CR-26-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
In 1995, Clarence Robinson, Jr., was convicted by a jury of possession of
a firearm by a convicted felon, and, after being categorized as an armed career
criminal, was sentenced to life imprisonment and ordered to pay a $50 special
assessment. We affirmed the judgment of the district court. United States v.
Robinson, No. 95-31288, 1996 WL 595692, at *1 (5th Cir. Sept. 25, 1996)
(unpublished).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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In 2016, after his previous motions for postconviction relief were denied,
we granted Robinson leave to file a successive 28 U.S.C. § 2255 motion in light
of Johnson v. United States, 135 S. Ct. 2551 (2015), which determined that the
residual clause of the Armed Career Criminal Act was void for vagueness. The
district court granted the ensuing § 2255 motion, vacated Robinson’s sentence,
directed the preparation of an amended presentence report (“PSR”), and
ordered a resentencing hearing. The district court consequently resentenced
Robinson within the amended guidelines range to 120 months in prison,
imposed a $100 special assessment, and ordered the instant sentence to run
consecutively to undischarged sentences for convictions in the Eastern District
of Texas.
Robinson argues that the district court erred at the resentencing hearing
by overruling his objections to the amended PSR. He contends that the district
court improperly concluded that the objections—which were reiterations of the
objections that he raised at his initial sentencing as to the original PSR—could
not be revisited because they were outside the scope of the resentencing. The
Government maintains that Robinson’s arguments as to the disposition of his
objections are barred and waived pursuant to the “mandate rule.” We need not
address the applicability of the mandate rule and may proceed to the merits of
the objections because Robinson has not shown any error. See United States v.
Simpson, 796 F.3d 548, 552 & n.7 (5th Cir. 2015).
Robinson challenges the imposition of a one-level enhancement under
U.S.S.G. § 2K2.1(b)(1) and a four-level enhancement under § 2K2.1(b)(5),
arguing that the information supporting the enhancements is unreliable
because it is premised on hearsay. However, he fails to offer competent
evidence to rebut the PSR and does not now meaningfully explain why the PSR
is untrustworthy or false. See United States v. Harris, 702 F.3d 226, 230-31
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(5th Cir. 2012). His claim that the PSR is unreliable because it contains
unspecified hearsay evidence is perfunctory and unavailing. See United States
v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006). Likewise, his assertion that the
enhancements wrongly were based on uncharged conduct is conclusory and
baseless. See U.S.S.G. § 1B1.3; United States v. Brummett, 355 F.3d 343,
344-45 (5th Cir. 2003). Thus, he has failed to establish that the district court
clearly erred in refusing to grant his objections. See United States v. Vital, 68
F.3d 114, 120 (5th Cir. 1995).
Robinson further asserts that his 120-month sentence was substantively
unreasonable. He maintains for the first time on appeal that the district court
gave significant weight to his prison disciplinary records even though the facts
underlying the disciplinary decisions were not disclosed or detailed. He argues
that the disciplinary records are equivalent to bare arrest records. Due to the
lack of apposite authority, Robinson has failed to establish that any error was
plain. See United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Even
if the district court clearly or obviously erred, Robinson has failed to show that
it is reasonably probable that he would have received a lesser sentence if the
district court had not considered the disciplinary records. See United States v.
Jones, 444 F.3d 430, 438 (5th Cir. 2006).
Robinson also alleges that his sentence was substantively unreasonable
because the district court ordered his instant sentence to run consecutively to
undischarged federal sentences. The record establishes that the district court
was made aware of the relevant factors before imposing a consecutive sentence,
and thus is presumed to have considered them. Specifically, the district court
was advised of the pertinent factors—including the offense conduct, Robinson’s
history and characteristics, his criminal history, the seriousness of his criminal
conduct and the likelihood that he would commit additional crimes, the facts
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of the undischarged sentences, and the propriety of consecutive sentences—in
the PSRs and addenda thereto and through the parties’ sentencing arguments.
See United States v. Izaguirre-Losoya, 219 F.3d 437, 440 & n.13 (5th Cir. 2011).
To the extent that Robinson argues that the district court viewed as mandatory
the Sentencing Guidelines—which recommended that the sentences be served
consecutively—his contention is conclusory and not supported by the record.
Robinson otherwise suggests that the district court improperly evaluated
the relevant sentencing factors by not crediting his rehabilitation in prison or
his other proffered grounds for leniency. The record supports that the district
court based its decision on an individualized assessment of the facts of the case
in light of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S.
38, 49-50 (2007). We may not reweigh the district court’s evaluation of the
§ 3553(a) sentencing factors. See id. at 51-52. Robinson’s disagreement with
the sentence imposed does not rebut the presumption of reasonableness that
attaches to it. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
Finally, he correctly contends—and the Government concedes—that the
imposition of a $100 special assessment at resentencing violated the Ex Post
Facto Clause because he completed the instant offense prior to April 24, 1996.
See 18 U.S.C. § 3013(a)(2)(A); United States v. Herrera-Solorzano, 114 F.3d 48,
50-51 (5th Cir. 1997). Further, because a $50 special assessment was imposed
at the initial sentencing hearing, the district court impermissibly imposed
cumulative assessments for a single conviction by imposing an additional
assessment at resentencing. See Rutledge v. United States, 517 U.S. 292,
301-03 (1996); United States v. Corona, 108 F.3d 565, 571-72 (5th Cir. 1997).
Because Robinson paid the $50 special assessment imposed at his original
sentencing, there is no outstanding balance. Thus, the district court’s
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judgment should be modified to remove the special assessment. Any money
Robinson paid towards the $100 special assessment should be refunded.
AFFIRMED; JUDGMENT MODIFIED.
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