United States of America v. Edward J. Robinson, a/k/a Jason

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD J. ROBINSON, a/k/a Jason,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (2:92-cr-00163-6)
Submitted: October 7, 2009 Decided: October 26, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward J. Robinson, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edward J. Robinson appeals the district court’s order
denying his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). For the reasons set forth below, we
affirm.
Our review of the record reveals that the district
court mistakenly assumed that Robinson was seeking relief under
Amendment 706 of the U.S. Sentencing Guidelines Manual (“USSG”),
which lowered the base offense levels for drug offenses
involving cocaine base. USSG App. C, Amend. 706. In his
§ 3582(c) motion, however, Robinson clearly sought the benefit
of Amendment 591.
Although Amendment 591 applies retroactively, see USSG
§ 1B1.10(c), it clearly does not apply to Robinson’s case. The
Amendment simply “requires that the initial selection of the
offense guideline be based only on the statute or offense of
conviction rather than on judicial findings of actual conduct
not made by the jury.” United States v. Moreno, 421 F.3d 1217,
1219 (11th Cir. 2005). In short, “‘[t]he plain wording of
Amendment 591 applies only to the choice of the applicable
offense guideline, not to the subsequent selection of the base
offense level.’” Poindexter v. United States, 556 F.3d 87, 89
(2d Cir. 2009) (quoting United States v. Rivera, 293 F.3d 584,
586 (2d Cir. 2002)).
2

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3
We find that the district court correctly selected
USSG § 2D1.1 as the proper offense guideline for Robinson’s
convictions under 21 U.S.C. §§ 841(a), 846 (2006). Although
Robinson argues that his base offense level was improperly
enhanced based on the district court’s determination of drug
quantity, Amendment 591 “does not constrain the use of
judicially found facts to select a base offense level within the
relevant guideline.” Moreno, 421 F.3d at 1220.
We therefore affirm the district court’s denial of
Robinson’s § 3582(c) motion on this alternate ground. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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