United States of America v. Kimberly Robinson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 02-1212
UNITED STATES OF AMERICA
v.
KIMBERLY ROBINSON,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 01-cr-00143-4)
District Judge: Hon. Garrett E. Brown, Jr.
Argued March 12, 2003
Before: SLOVITER, NYGAARD, and ALARC N, Circuit Judges
(Filed: April 16, 2003)
Robert P. Willliams, Esq. (Argued)
90 Washington Valley Road
Bedminster, NJ 07921
Attorney for Appellant
George S. Leone, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Norman J. Gross, Esq. (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101
Attorneys for Appellee
OPINION OF THE COURT
ALARC N, Circuit Judge.
Kimberly Robinson ("Robinson") appeals from her conviction for conspiracy to
import cocaine pursuant to 21 U.S.C. 963 and from the district court’s sentencing
decision. Robinson seeks reversal on three grounds: (1) the judgment of conviction was
against the weight and sufficiency of the evidence; (2) the district court erred in

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enhancing her sentence based on its erroneous finding that she was a leader in the charged
conspiracy; and, (3) she was denied effective assistance of counsel.
We affirm because we conclude that, when reviewed in the light most favorable to
the United States, the evidence was sufficient to support the judgment of conviction. We
also hold that the district court’s finding that Robinson was a leader in the conspiracy was
not clearly erroneous, and that the present record does not demonstrate incompetency of
counsel.
I
At trial, one of Robinson’s co-conspirators, Fitzgerald Lewis ("Lewis"), testified
that Robinson was a leader in organizing a conspiracy to smuggle controlled substances.
He testified that Robinson invited several of the conspirators to her home where she
recruited them for her cocaine-smuggling plan. Lewis stated that it was Robinson’s idea
to ship packages of cocaine via Federal Express ("FedEx") to fictitious persons and street
numbers on streets within the route she covered as a FedEx employee. The record shows
that Robinson introduced her fellow conspirators to a man she said was her brother whom
she called "Chuck." Chuck claimed to be able to sell up to twenty kilograms of cocaine
per week. Under the scheme, Robinson was responsible for selling the smuggled cocaine
to Chuck, collecting the proceeds from him, and transmitting their share to her co-
conspirators. Lewis testified that he went to Grenada in April 2000 to secure cocaine in
furtherance of the conspiracy. He used FedEx to ship approximately eight packages of
cocaine to fictitious addresses on Robinson’s New Jersey delivery route.
A United States Customs officer testified that the Customs Service intercepted
seven packages containing more than five kilograms of cocaine shipped pursuant to the
charged conspiracy. One package of cocaine was received by Robinson. Robinson
admitted receiving a package of illicit drugs on April 10, 2000, but claimed that she
believed it to be marijuana. Lewis testified, however, that Robinson received the package
of cocaine and presented it to Chuck. Thereafter, Robinson delivered between $18,000 to
$20,000 to one of her co-conspirators, Ricardo Phang ("Phang"). Phang sent between
$9,500 and $10,000 to Lewis who gave that sum to the suppliers of the cocaine in
Grenada.
Lewis testified that because the conspirators were largely unsuccessful in their
FedEx smuggling scheme, in June of 2000, they agreed to smuggle cocaine from Grenada
via couriers traveling with false-paneled suitcases. Robinson agreed to finance the false-
paneled suitcase smuggling scheme. Robinson provided between $16,000 and $18,000
for the purchase of cocaine to be smuggled into the United States. Government agents
arrested the drug couriers from Grenada when they attempted to enter the United States in
Puerto Rico.
Customs agents interviewed Robinson about her involvement in the smuggling
scheme on August 9, 2000. She confessed to participating in the conspiracy. Cellular
telephone records corroborated Robinson’s participation in the conspiracy. Telephone
numbers for the cellular telephones used by some of her co-conspirators were listed on
labels on cocaine parcels shipped by FedEx to Newark, New Jersey.
II
Robinson contends that "the government clearly failed to prove the elements of
any conspiracy on [her] part." She argues that the evidence presented at trial was
insufficient to sustain her conviction, and that her conviction was against the weight of
the evidence. "A claim of insufficiency of the evidence places a very heavy burden on an
appellant." United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (internal
quotation marks and citations omitted). "Our standard of review is highly deferential.
’We determine whether there is substantial evidence that, when viewed in the light most
favorable to the government, would allow a rational trier of fact to convict.’" United
States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000) (quoting Government of the Virgin
Islands v. Charles, 72 F.3d 401, 410 (3d Cir. 1995)).
The evidence summarized above amply demonstrated that Robinson was a leader
of a conspiracy to import cocaine into the United States in packages addressed to
fictitious addresses on her FedEx route or in suitcases carried by drug couriers in
violation of 21 U.S.C. 952(a).
We also reject Robinson’s claim that the jury’s verdict was contrary to the weight
of the evidence. This court reviews such a contention for abuse of discretion. United
States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). Robinson’s claim is predicated on

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her contention that Lewis’s testimony was unworthy of belief. The jury found Lewis’s
testimony credible. Lewis’s testimony was corroborated by the testimony of Customs
agents and by Robinson’s confession. Robinson has failed to demonstrate that the jury’s
verdict was contrary to the weight of the evidence.
III
Robinson contends that the district court "erred by imposing a sentence of 188
months, fining [her] $2,000 and imposing a 5 year period of supervised release."
Robinson argues that she should not have been subjected to a four-level sentence
enhancement based on her leadership role in the conspiracy. Robinson contends "that she
was not shown to be the ’leader’ of any conspiracy." She also asserts that under Apprendi
v. New Jersey, 530 U.S. 466 (2000), such a finding must be made by the jury. The
Government forthrightly conceded at oral argument that Robinson objected to the
imposition of this enhancement in the district court. "We review a District Court’s
factual determinations underlying the application of the sentencing guidelines for clear
error." Helbling, 209 F.3d at 242-43 (citing United States v. Ortiz, 878 F.2d 125, 126-27
(3d Cir. 1989)).
The Sentencing Guidelines require a four-level enhancement in the sentencing of a
defendant who "was an organizer or leader of a criminal activity that involved five or
more participants." U.S. Sentencing Guidelines Manual 3B1.1(a) (2002). The evidence
considered by the trial court in its sentencing decision demonstrates that Robinson was an
"organizer or leader" of a drug-smuggling conspiracy that included five or more
participants. Accordingly, the district court did not clearly err in determining that she was
subject to a four-level sentencing enhancement.
Robinson further maintains that Apprendi requires that the determination of her
status as an organizer or leader be made by a jury. The statutory maximum sentence to
which Robinson could have been subjected based on the charged offense was 240
months. 21 U.S.C. 960(b) (2000). Robinson was sentenced to 188 months. Robinson
was sentenced to five years of supervised release, which is the statutorily mandated
period. Id. Her fine falls below the statutory maximum for the crime for which a jury
convicted her. Id. "Because application of the Sentencing Guidelines in this case does
not implicate a fact that would increase the penalty . . . beyond the statutory maximum,
the teachings of Apprendi are not relevant here." United States v. Cepero, 224 F.3d 256,
267-68 n.5 (3d Cir. 2000) (en banc) (internal citations omitted).
IV
Robinson further asserts that she was deprived of the effective assistance of
counsel. Robinson argues that her trial counsel was ineffective because he failed to make
a motion to suppress her statement to the investigators, and because he failed to
communicate at least three plea offers to her. "Claims of ineffective assistance of counsel
generally are not entertained on direct appeal. We have repeatedly held that ’the proper
avenue for pursuing such claims is through a collateral proceeding in which the factual
basis for the claim may be developed.’" United States v. Haywood, 155 F.3d 674, 678
(3d Cir. 1998) (internal citations omitted) (quoting United States v. Theodoropoulos, 866
F.2d 587, 598 (3d Cir. 1989)). In Haywood, this court reiterated that the only exception
to this rule is "’[w]here the record is sufficient to allow a determination of ineffective
assistance of counsel, [and] an evidentiary hearing to develop the facts is not needed.’"
Id. (quoting United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991)).
Robinson has failed to cite any relevant portions of the record to support her
contentions of ineffectiveness of counsel. Contrary to her representation to this court,
trial counsel did move for a judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure. Robinson’s contention that her trial counsel failed to argue
"in summation that she was not a ringleader of criminal enterprise" was not material to
the question of guilt. Robinson’s role in the offense was an issue that was relevant to the
sentencing decision, not to her guilt of conspiracy.
AFFIRMED.
/s/ Arthur L. Alarcon
Circuit Judge

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