United States of America v. Charles R. Robinson, Iv

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2091
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
C HARLES R. R OBINSON, IV,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 97 CR 30025 — Richard Mills, Judge.
____________________
SUBMITTED J ANUARY 19, 2016 — D ECIDED FEBRUARY 22, 2016
____________________
Before POSNER , EASTERBROOK , and SYKES , Circuit Judges.
P OSNER , Circuit Judge. In 1997 the defendant was indicted
for possessing cocaine and cocaine base with the intent to
distribute (count 1), distributing cocaine base (count 2), and
possessing just cocaine base with intent to distribute (count
3), all in violation of 21 U.S.C. § 841(a)(1). A jury convicted
the defendant on all three counts, and in 1998 the district
court sentenced him to consecutive prison sentences of 40

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2 No. 15‐2091
years on counts 1 and 3 and 20 years on count 2, for a total of
100 years—effectively a life sentence, which we upheld in
United States v. Robinson, 250 F.3d 527 (7th Cir. 2001), follow‐
ing earlier decisions in the case, cited in id. at 528–29.
Thirteen years later the Sentencing Commission prom‐
ulgated Amendment 782 to the guidelines, which retroac‐
tively reduced the base offense level for the defendant’s
crimes from 43 to 42. The effect was to change the recom‐
mended guidelines sentence from life to 30 years to life. The
defendant accordingly moved the district court to reduce his
sentence, and the judge did, imposing 30 years on counts 1
and 3 and 20 years on count 2, with all three sentences to run
consecutively, making the total sentence 80 years.
In reducing the sentence only from 100 to 80 years, the
district judge was under the impression that he had to make
the sentences on the three counts consecutive—that he could
not make them concurrent. He was mistaken. When Robin‐
son was first sentenced, his recommended guideline sen‐
tence was longer (life, as we said) than the maximum per‐
missible sentence on any one count. The judge thus had to
make the sentences on the individual counts consecutive in
order to get as close to a life sentence as he could. See
U.S.S.G. § 5G1.2(d). As a result of Amendment 782, however,
the low end of the defendant’s guidelines range—30 years—
dropped below the statutory maximum for any single count
(40 years), and if a judge wants to sentence a defendant at
the bottom of the new guidelines range he can do so by im‐
posing sentences not exceeding 30 years on each count and
making all the sentences run concurrently, as authorized by
U.S.S.G. § 5G1.2(c)—80 years is not the floor. Indeed the sen‐
tencing guidelines, both when the defendant was first sen‐

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No. 15‐2091 3
tenced and now, state that “if the sentence imposed on the
count carrying the highest statutory maximum is adequate
to achieve the total punishment [i.e., the overall length of
imprisonment that the judge thinks just], then the sentences
on all counts shall run concurrently, except to the extent oth‐
erwise required by law.” U.S.S.G. § 5G1.2(c) (emphasis add‐
ed).
What Amendment 782 would not have allowed the judge
to do would have been to reconsider any feature of the orig‐
inal sentence that he had imposed other than its length, such
as whether the defendant qualified as a career offender.
United States v. Wren, 706 F.3d 861 (7th Cir. 2013). But the
change in the applicable guideline provision empowered the
judge to invoke U.S.S.G. § 5G1.2(c) and make the three sen‐
tences concurrent rather than consecutive. Unfortunately,
but not irrevocably, the defendant’s lawyer had misin‐
formed the judge that the three sentences had to run consec‐
utively. In fact they could be made concurrent; and if so,
since the longest sentence was 30 years, that would be the
defendant’s total sentence.
The judgment must therefore be vacated and the case
remanded to enable the judge to decide whether to alter the
defendant’s sentence. The defendant, who has been pro se in
this appeal, would undoubtedly benefit from assistance of
counsel on remand. Although the Criminal Justice Act does
not authorize the appointment and compensation of a law‐
yer for the defendant in a proceeding based on a retroactive
change in the applicable guidelines, United States v. Foster,
706 F.3d 887 (7th Cir. 2013), district judges can if they want
try to recruit pro bono counsel, who donate their time rather
than selling their services to the judiciary, to represent an

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4 No. 15‐2091
indigent defendant. We urge the district judge to consider
doing so in this case.
R EVERSED AND R EMANDED

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