United States v. Robinson

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 21, 2024
• Docket: 23-2129
• Status: Unpublished

Opinion

Appellate Case: 23-2129 Document: 010111097987 Date Filed: 08/21/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 21, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2129 (D.C. No. 2:22-CR-00924-MIS-1) CLIVE ANTHONY ROBINSON, (D. N.M.)

Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

v. No. 23-2130 (D.C. No. 2:22-CR-01039-MIS-1) CLIVE ANTHONY ROBINSON, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-2129 Document: 010111097987 Date Filed: 08/21/2024 Page: 2

_________________________________

This appeal involves the length of two sentences imposed on

Mr. Clive Robinson. While Mr. Robinson was on supervised release, he

was convicted of illegal reentry and had his supervised release revoked.

For the conviction and revocation, the court sentenced Mr. Robinson to

consecutive terms at the top of the guideline range: 46 months for illegal

reentry and 18 months for the revocation of supervised release.

Mr. Robinson appeals, arguing that the prison terms were substantively

unreasonable.

Because the prison terms fell within the guideline ranges, we

presume that the sentences were substantively reasonable. United States v.

Jackson, 82 F.4th 943, 952 (10th Cir. 2023). That presumption, however,

can be rebutted. See id. In determining whether Mr. Robinson has rebutted

the presumption, we consider whether Mr. Robinson has shown an abuse of

discretion. See id. at 949. We will find an abuse of discretion only if either

sentence was “arbitrary, capricious, whimsical, or manifestly unjust.”

United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir. 2021).

In urging an abuse of discretion, Mr. Robinson challenges the

adequacy of the court’s explanations for the sentences. For this challenge,

we require only a general statement of the reasons because the sentences

had fallen within the guideline ranges. See United States v. Ruiz-Terrazas,

477 F.3d 1196, 1199 (10th Cir. 2007) (sentence following a conviction);

2 Appellate Case: 23-2129 Document: 010111097987 Date Filed: 08/21/2024 Page: 3

United States v. McBride, 633 F.3d 1229, 1234 (10th Cir. 2011) (sentence

following revocation of supervised release). The court did provide a

general statement of reasons.

For the conviction itself, the court adopted the factual findings in the

presentence report, referred to the statutory factors, recited the offense

level and criminal history, and noted multiple felony convictions prior to

the unlawful reentry.

For the sentence following the revocation of supervised release, the

court noted that Mr. Robinson had violated the conditions, found the

commission of a new crime while on supervised release, referred to the

statutory factors, and recited the criminal history.

In addition, Mr. Robinson argues that the district court appeared to

rely on criminal history even though the guideline range had already

factored into the criminal history. But the court can vary upward based on

facts that had already contributed to the guideline range. United States v.

Gross, 44 F.4th 1298, 1304 (10th Cir. 2022).

Finally, Mr. Robinson points to national statistics reflecting frequent

downward departures and variances in similar circumstances. Based on

these statistics, Mr. Robinson argues that the district court failed to

consider unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(6). But

the sentences fell within the guideline ranges. And in any case where “the

district court correctly computed and carefully considered the [g]uidelines

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range,” we consider this to demonstrate the district court “‘necessarily

gave significant weight and consideration to the need to avoid unwarranted

disparities.’” United States v. Garcia, 946 F.3d 1191, 1215 (10th Cir.

2020) (quoting United States v. Franklin, 785 F.3d 1365, 1371 (10th Cir.

2015)). So the national statistics don’t show a failure to consider

unwarranted sentencing disparities.

* * *

In our view, the district court didn’t abuse its discretion in

sentencing Mr. Robinson within the guideline ranges for his conviction and

revocation of supervised release. So we affirm the sentences.

Entered for the Court

Robert E. Bacharach Circuit Judge