[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 5, 2007
No. 06-13384 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60010-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ROBINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 5, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
John Basil Robinson appeals his conviction and sentence for conspiracy to
possess counterfeit securities, in violation of 18 U.S.C. §§ 371 and 513(a).
Robinson argues that the district court, at the hearing on his counsel’s motion to
withdraw, violated his Sixth Amendment right to counsel of his choosing by
denying his counsel’s motion to withdraw and his motion for a continuance of the
impending sentencing to seek substitute counsel. Second, he argues that the
district court at sentencing abused its discretion by denying his motion for a
continuance to develop additional character evidence. Third, the district court
erred by relying on the pre-sentence investigation report’s (“PSI”) criminal history
calculation, where the report did not describe the underlying circumstances of the
prior convictions. Fourth, his sentence was unreasonable because the district court
failed to consider the 18 U.S.C. § 3553(a) sentencing factors. Finally, he argues
that his counsel was ineffective. For the reasons set forth more fully below, we
affirm.
After Robinson pled guilty to the conspiracy charge, but before sentencing,
his counsel moved to withdraw from representation, citing in essence
communication and trust problems. The court denied the motion at a hearing that
took place one week before sentencing, telling Robinson that he could hire any
attorney he wanted, but that current counsel would not be released until new
2
counsel was obtained. Robinson then orally moved for a continuance after telling
the court he was in the process of retaining a new attorney. The court, noting that
Robinson’s counsel’s motion to withdraw had been pending for three weeks and he
could have found a new attorney during that time, denied the motion for a
continuance as well.
At the sentencing hearing, Robinson’s counsel moved for a 60-day
continuance, explaining only that his client wanted time to prepare character
witnesses and because a potential mental health issue existed. The court
summarily denied the oral motion. Thereafter, the court sentenced Robinson at the
bottom of the guideline range to 51 months’ imprisonment, 3 years’ supervised
release, a fine of $10,000, and $342,165 in restitution.
I.
We review for abuse of discretion the district court’s decision denying
counsel’s motion to withdraw. See United States v. Dinitz, 538 F.2d 1214, 1219
n.7 (5th Cir. 1976). Similarly, we review a motion to continue sentencing for
abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1350 (11th Cir.
2007).
“The Sixth Amendment provides that [i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
3
[defense]. [The Supreme Court has] previously held that an element of this right is
the right of a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S.Ct. 2557,
2561, 165 L.Ed.2d 409 (2006) (quotation marks omitted). That said, “the right to
counsel of choice is not as absolute as the right to the assistance of counsel.”
United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005), cert. denied, 547
U.S. 1085 (2006); see also United States v. Campbell, No. 006-13548, slip op.
at 2833 (11th Cir. July 13, 2007) (same). “There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process.
The answer must be found in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time the request is denied.” Ungar
v. Sarafite, 376 U.S. 575, 589-90, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964).
Notably, we have held that:
When deciding whether a denial of a continuance impinged on the
defendant’s fair and reasonable opportunity to choose counsel,
reviewing courts should consider a number of factors, including:
(1) the length of the delay; (2) whether the counsel who becomes
unavailable for trial has associates prepared to try the case;
(3) whether other continuances have been requested and granted;
(4) the inconvenience to all involved in the trial; (5) whether the
requested continuance is for a legitimate reason; and (6) any unique
factors.
Baker, 432 F.3d at 1248.
4
As an initial matter, unlike in the cases Robinson cites on appeal, there was
no independent violation of his right to choose counsel here. Rather, the court
properly informed Robinson that he could retain any new attorney that he wanted.
While Robinson argues that he was bound by local rule to wait for the court’s leave
to acquire new counsel, that rule only requires leave of court to withdraw.
S.D.Fla.Local R. 11.1.D.3. The rule did not prevent Robinson from finding and
retaining new counsel – something he never did.
As to whether the district court violated Robinson’s right to choose counsel
by denying the written motion to withdraw and his first oral motion to continue,
weighing in Robinson’s favor is the fact that: (1) the length of the delay he was
seeking was not obviously unreasonable; (2) he had not requested any
continuances previously; and (3) his counsel appeared to believe they were having
problems communicating. Baker, 432 F.3d at 1248.
On the other hand, in the motion to withdraw, counsel did not allege that he
was not being paid, that an actual conflict had arisen, or that he had been fired.
Rather, he only represented that there were communication and trust problems, and
told the court that he wanted to avoid going through litigation on collateral review.
He also stated that he was prepared for sentencing.
Thus, neither Robinson nor his attorney presented a compelling explanation
5
for the withdrawal. This is especially relevant, given that Robinson had not
arranged for a new attorney, something that the court correctly observed he could
do at anytime and specifically could have done during the 20 days between the
filing of the motion to withdraw and the hearing on that motion. For all these
reasons, the court did not abuse its discretion by denying the motion to withdraw or
the motion for a continuance, and consequently did not violate Robinson’s right to
choose counsel.
II.
As already noted, we review a motion to continue sentencing for abuse of
discretion. Edouard, 485 F.3d at 1350. Where no constitutional considerations are
implicated, the defendant “has the burden to demonstrate that the denial [of the
continuance] produced specific substantial prejudice,” and we will analyze the
district court’s decision “in light of the circumstances presented, focusing upon the
reasons for the continuance offered to the trial court when the request was denied.”
Id.
Counsel based his request for the 60-day continuance on the need to prepare
character witnesses and investigate Robinson’s mental health. However, he did not
explain why this preparation could not have been completed before the hearing,
which had been scheduled for almost 30 days, and did not explain why such a long
6
continuance would be necessary. Accordingly, the court did not abuse its
discretion by denying this motion.
Further, even if the court’s denial was error, it is not clear that it resulted in
substantial harm. Specifically, there was extensive character evidence in the PSI,
and the guideline calculation was simple and did not expressly involve character
issues. As to his claim of a mental disorder, the PSI noted that Robinson himself
had stated that he was treating the disorder with exercise and that he did not need
treatment. Further, there had never been a claim that he was not competent.
III.
We review the district court’s interpretation of the sentencing guidelines de
novo and its factual findings under the guidelines for clear error. United States
v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).
According to the rules in U.S.S.G. § 4A1.1, a defendant’s criminal history
score, and therefore his criminal history category, is determined by, among other
things: (1) adding 3 points for “each prior sentence of imprisonment exceeding one
year and one month”; (2) adding 2 points for “each prior sentence of
imprisonment exceeding at least sixty days” not already counted; and (3) adding
one point – but not more than 4 points total – for any prior sentences not already
counted. U.S.S.G. § 4A1.1(a)-(c). This section adds further points: (1) if the
7
offense of conviction was committed while on probation or parole, etc., or less than
two years after release from imprisonment; or (2) for prior convictions of crimes of
violence related to crimes already scored. Id. § 4A1.1(d)-(f).
The guidelines define a “prior sentence” as “any sentence previously
imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo
contendere, for conduct not part of the instant offense.” Id. § 4A1.2(a)(1). The
background commentary to this section states, in relevant part:
Prior convictions may represent convictions in the federal system,
fifty state systems, the District of Columbia, territories, and foreign,
tribal, and military courts. There are jurisdictional variations in
offense definitions, sentencing structures, and manner of sentence
pronouncement. To minimize problems with imperfect measures of
past crime seriousness, criminal history categories are based on the
maximum term imposed in previous sentences rather than on other
measures, such as whether the conviction was designated a felony or
misdemeanor.
Id. § 4A1.1, comment. (backg’d.) (emphasis added). In contrast, the application of
criminal history enhancements for career offenders and armed career criminals,
among others, depend on information regarding the elements or nature of the
offense, including whether drugs or violence was involved. See U.S.S.G.
§§ 4B1.1, 4B1.2, 4B1.4.
Here, Robinson was not scored as either a career offender or an armed career
criminal. Therefore, as the government notes, and the commentary to the
8
guidelines suggests, the only facts necessary in the calculation of his criminal
history here was the existence and date of the conviction and the length of the
sentence. Moreover, although Robinson argued that the PSI’s lack of description
and the sources the probation officer relied upon did not provide enough
information to prove his criminal history score, he did not argue that any of the
information provided was incorrect. Thus, the court had no reason to think that it
could not rely on the PSI to establish the fact and date of the convictions and the
sentences imposed, and therefore his criminal history score. See United States
v. Jones, 289 F.3d 1260, 1266 (11th Cir. 2002) (holding that the district court
properly relied on the unchallenged PSI findings regarding defendant’s financial
status).
Finally, Robinson on appeal still does not attack the facts contained in the
PSI about his prior convictions, but only alleges that more information regarding
the circumstances of those convictions was necessary. In support of his argument,
Robinson cites Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d
205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990). However, those cases concern sentencing calculations that
required a determination regarding the nature of the prior convictions. See
Shepard, 544 U.S. at 15, 125 S.Ct. at 1257 (reviewing 15-year mandatory
9
enhancement under Armed Career Criminal Act, 18 U.S.C. § 924(e), which allows
enhancement for a “violent felony,” and clarifying which documents court can
review to ascertain the character of a prior burglary); Taylor, 495 U.S. at 578-81,
110 S.Ct. at 2147-50 (reviewing whether prior burglary conviction justified a 15-
year minimum enhancement for committing a “violent felony” under 18 U.S.C.
§ 924(e)). In Robinson’s case, no such determination was necessary to calculate
his sentence. Accordingly, the district court did not err in this regard.
IV.
Following Booker,1 we review the district court’s sentence for
reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir.2005). Such
review is deferential, requiring us to “evaluate whether the sentence imposed by
the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C.]
section 3553(a).” Id. at 788.
The § 3553(a) factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant”; (2) whether the
sentence is “sufficient, but not greater than necessary, to comply with . . . the need
for the sentence imposed– (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
10
adequate deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment.” 18 U.S.C.
§ 3553(a)(1)-(2).
We have several times held that “nothing in Booker or elsewhere requires
the district court to state on the record that it has explicitly considered each of the
[§ 3553(a)] factors or to discuss each of the [§ 3553(a)] factors.” United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); see also United States v. Dorman,
488 F.3d 936, 944 (11th Cir. 2007) (holding that although the district court had not
explicitly stated that it had considered the § 3553(a) factors, it was clear from the
court’s consideration of objections to the PSI and a motion for a downward
departure that it had indeed considered those factors). This rule, especially in the
case of a sentence within the guidelines, was recently supported by the Supreme
Court. See Rita v. United States, 551 U.S. ___, 127 S.Ct. 2456, 2468-69, 168
L.Ed.2d 203 (2007). Specifically, Rita held that the sentencing judge is only
required to “set forth enough to satisfy the appellate court that he ha[d] considered
the parties’ arguments and ha[d] a reasoned basis for exercising his own legal
decisionmaking authority.” Id. at ___, 127 S.Ct. at 2468.
Finally, “a sentence may be reviewed for procedural or substantive
11
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). A sentence is procedurally unreasonable “if it is the product of a procedure
that does not follow Booker’s requirements, regardless of the actual sentence.” Id.
In this case, Robinson essentially only challenges the procedure the court
used in imposing sentence, but does not challenge “the actual sentence.” Id.
Specifically, he argues that the sentence was by its nature unreasonable because the
court failed to consider the § 3553(a) sentencing factors, generally, and his bipolar
disorder particularly. Thus, he has not raised a challenge to the substantive
reasonableness of his sentence, and that issue is therefore abandoned. United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“issues and contentions not
timely raised in the briefs are deemed abandoned”).
The court here expressly stated that it had considered the statements of the
parties and the PSI, including the advisory guidelines, and “the statutory factors.”
Further, during the hearing the court discussed the length of the conspiracy, the
amount stolen, Robinson’s explanation of the offense, and his criminal record. See
18 U.S.C. § 3553(a)(1)-(2). Both parties then asked the court to sentence Robinson
within the guidelines. Accordingly, the district court did not err by failing to
provide further analysis of the sentencing factors, as it is clear from the substance
of the hearing – and from the court’s own statement – that it did indeed consider
12
them. Dorman, 488 F.3d at 944. As to the suggestion that Robinson had a mental
health issue, Robinson’s counsel only noted this as a “potential mitigating factor,”
and did not press the issue any further. In addition, the issue was addressed in the
PSI, which the court stated it had read. There, Robinson reported that he did not
believe he needed treatment. Thus, nothing about this specific issue suggests that
the district court failed to consider the sentencing factors.
Thus, the court did not err, and Robinson’s sentence was procedurally
reasonable.
V.
It is well established that we generally will not consider ineffective
assistance of counsel claims on direct appeal unless there is sufficient evidence on
the record. See United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir. 1992);
see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694,
155 L.Ed.2d 714 (2003). Specifically, “[t]o obtain a reversal of a conviction
because of constitutionally ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient, and that the deficient performance
prejudiced the defense. Counsel is held to a standard of ‘reasonably effective
assistance[.]’” Andrews, 953 F.2d at 1327.
Although clearly Robinson and his sentencing counsel had problems in their
13
relationship, the record does not contain sufficient evidence regarding counsel’s
performance for us to review it. Massaro, 538 U.S. at 504-05, 123 S.Ct. at 1694.
Furthermore, there is no need to raise the issue here in order to preserve it for
collateral review. Id. at 504, 123 S.Ct. at 1694 (“We hold that an ineffective-
assistance-of-counsel claim may be brought in a collateral proceeding under
§ 2255, whether or not the petitioner could have raised the claim on direct
appeal”).
In light of the foregoing, Robinson’s sentence is
AFFIRMED.
14