UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5038
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHIAD ROBINSON, a/k/a Day Day, a/k/a D,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00012-JPB-DJJ-1)
Submitted: April 30, 2012 Decided: May 3, 2012
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kristen M. Leddy, Research and Writing Specialist, Nicholas J.
Compton, Assistant Federal Public Defender, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Erin K. Reisenweber, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashiad Robinson appeals his sentence of 151 months of
imprisonment imposed following his guilty plea to distributing
cocaine base, in violation of 21 U.S.C. § 841(a) (2006).
Robinson contends that the district court erred in declining to
apply the various statutory amendments effected by the Fair
Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372, when calculating his Guidelines range. The Government,
although not conceding error, submits that any such error was
harmless. We agree, and accordingly affirm. *
When considering whether preserved procedural
sentencing errors like the one alleged here require
resentencing, we apply a harmless error standard. See United
States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010).
Accordingly, we may affirm a sentence despite a district court’s
procedural sentencing error if the Government can demonstrate
that the error “did not have a substantial and injurious effect
or influence on the result and we can say with fair assurance
*
Whether the FSA applies to defendants like Robinson who
were sentenced after the FSA’s August 3, 2010 effective date but
whose offense conduct occurred prior to that date will be
considered by the Supreme Court in Dorsey v. United States, __
U.S. __, 2011 WL 3422126 (U.S. Nov. 28, 2011) (No. 11-5683), and
Hill v. United States, ___ U.S. ___, 2011 WL 3472365 (U.S. Nov.
28, 2011) (No. 11-5721) (consolidated with Dorsey).
Nevertheless, we may resolve Robinson’s appeal without reaching
the issue.
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that” the district court’s sentence was not affected by the
error. Id. (internal quotation marks and alterations omitted).
Here, assuming, without finding, error by the district
court, the Government is able to carry this burden. In
pertinent part, the FSA increased the threshold quantities of
cocaine base needed to trigger certain statutory maximum
sentences. Had the district court applied these amended
statutory maximums in Robinson’s case, his Guidelines range
would have been 151 to 188 months’ imprisonment, appreciably
lower than the 188 to 235-month range the district court
calculated at Robinson’s sentencing. See 21 U.S.C.A.
§ 841(b)(1)(B)-(C) (West 1999 & Supp. 2011); U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1(a)-(b) (2010); USSG ch. 5,
pt. A. (sentencing table).
However, when sentencing Robinson, the district court
departed downward two levels, to reach “the same effect as if
[the court had] found that the Fair Sentencing Act applied.”
Accordingly, because the district court elected to sentence
Robinson as though the FSA applied to him, despite its finding
that the FSA did not so apply, Robinson received the benefit of
the FSA. We can thus say with fair assurance that Robinson’s
sentence was not affected by the alleged error.
Therefore, we affirm the judgment below. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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