United States v. Leroy Robinson, II

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 24, 2018
• Docket: 17-13510
• Status: Unpublished

Opinion

Case: 17-13510 Date Filed: 07/24/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13510 Non-Argument Calendar ________________________

D.C. Docket No. 3:15-cr-00151-HES-JRK-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEROY ROBINSON, II,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(July 24, 2018)

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-13510 Date Filed: 07/24/2018 Page: 2 of 5

A jury found Leroy Robinson, II, guilty of one count of conspiracy to

commit wire fraud, 18 U.S.C. § 1349, and three counts of wire fraud, 18 U.S.C.

§ 1343, stemming from his involvement in a scheme to defraud the United States

Department of Agriculture’s Supplemental Nutrition Assistance Program (formerly

the Food Stamp Program). The district court sentenced him to 78 months’

imprisonment. On appeal, Mr. Robinson contends that his sentence is

substantively unreasonable. After careful review, we affirm.

We review a sentence for reasonableness under an abuse of discretion

standard. See Gall v. United States, 552 U.S. 38, 46 (2007). Mr. Robinson bears

the burden to show that his sentence is unreasonable. See United States v. Sanchez,

586 F.3d 918, 935 (11th Cir. 2009). An abuse of discretion may be shown when

the district court “(1) fails to afford consideration to relevant factors that were due

significant weight, (2) gives significant weight to an improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.” United

States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016). Because our

review is deferential, we will only vacate the sentence if we are “left with the

definite and firm conviction that the district court committed a clear error of

judgment.” Id. Mr. Robinson has not convinced us that his sentence is

unreasonable.

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First, his sentence of 78-months falls in the middle of his advisory guideline

range of 70 to 87 months. “Although we do not automatically presume a sentence

within the guidelines range is reasonable, we ‘ordinarily . . . expect a sentence

within the [g]uidelines range to be reasonable.’” United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008) (quoting United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005)). 1

Second, although Mr. Robinson contends that the district court failed to

consider his lack of criminal history, strong family background, and record of

community service, we “do not reweigh relevant factors . . . unless the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence outside the range of reasonable sentences.” United States v.

Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). Of note, despite the absence of

criminal charges, the USDA had previously prohibited Mr. Robinson from owning

a business that received SNAP benefits due to prior abuse. In light of Mr.

Robinson’s past conduct and the instant convictions for defrauding the SNAP

benefit program, the district court did not err in weighing the § 3553(a) factors in

1 Mr. Robinson notes that the district court did not explain how it balanced the § 3553(a) factors at his sentencing. The district court did, however, explain that it had taken into account the arguments presented at sentencing and evidence at trial and that it considered the § 3553(a) factors. This is sufficient here because “[i]n general, the district court is not required ‘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.’” Sanchez, 586 F.3d at 936 (quoting United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005)).

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this case. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (“The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.”) (alterations adopted). See also United States v.

Martinez-Gonzalez, 663 F.3d 1305, 1311–12 (11th Cir. 2011) (affirming the

substantive reasonableness of the sentence imposed despite argument that the

defendant’s family would “face financial hardship”).

Mr. Robinson asserts that the district court failed to avoid unwarranted

sentencing disparities when compared to the sentences of his codefendants. See 18

U.S.C. § 3553(a)(6). In particular, he argues that his sentence is disparate from

Lakeya Creech, the owner of the SNAP-authorized retailer who received a

sentence of 15 months’ imprisonment for her part in the scheme. His argument,

“however, fails to appreciate that there can be no ‘unwarranted’ sentencing

disparities among codefendants who are not similarly situated.” United States v.

Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015). Mr. Robinson and Ms. Creech (or

any of the other codefendants) are not similarly situated. Ms. Creech pled guilty,

while Mr. Robinson went to trial. At trial, Mr. Robinson committed perjury while

testifying, meriting a two-level increase in his base offense level for obstruction of

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justice.2 See U.S.S.G. § 3C1.1. And, he was considered an organizer of the

criminal activity, meriting an additional four-level increase. See § 3B1.1(a).

Taken together, these differences resulted in a higher advisory guideline range for

Mr. Robinson and the difference between his sentence and those of his

codefendants was warranted. See Azmat, 805 F.3d at 1048 (no unwarranted

sentence disparity where “codefendants accepted responsibility for their crimes,

pled guilty to offenses that carried lower penalties, and cooperated with the

prosecution”); Langston, 590 F.3d at 1237 (“[T]here is no unwarranted disparity

when a cooperating defendant pleads guilty and receives a lesser sentence than a

defendant who proceeds to trial.”).

For the foregoing reasons, Mr. Robinson’s sentence is not substantively

unreasonable. We affirm.

AFFIRMED.

2 Mr. Robinson did not appeal the procedural reasonableness of his sentence or the application of the obstruction of justice enhancement. 5