United States v. Robinson

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

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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,

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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

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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

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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

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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.

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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

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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

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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

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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.

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 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.

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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).

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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,

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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,

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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.

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