No: 01-3292 UNITED STATES OF AMERICA v. George L. Robinson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-3292
UNITED STATES OF AMERICA
v.
GEORGE L. ROBINSON,
Appellant
Appeal from the United States District Court
for the District of Delaware
(Criminal Action No. 96-00090 JJF)
District Court: Hon. Joseph J. Farnan, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2002
Before: SLOVITER, ROTH and McKEE,
Circuit Judges
(Opinion filed: June 18, 2002 )
OPINION OF THE COURT
McKEE, Circuit Judge.
George L. Robinson appeals from an order of the district court denying his motion
pursuant to 28 U.S.C. 2255 to correct a sentence of imprisonment stemming from the
revocation of his supervised release. For the reasons that follow, we will dismiss the
appeal for lack of appellate jurisdiction.
I.
On January 14, 1997, Robinson pled guilty to one count of possessing with intent
to distribute cocaine base in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B). The
maximum term of imprisonment for a violation of this statute is forty years, making
841(b)(1)(B) a Class B felony. 18 U.S.C. 3559(a)(2). The amount of the cocaine base
was not charged and there was no agreement as to the drug quantity in the Memorandum
of Plea Agreement or the Memorandum of Sentencing Agreement.
Although the government originally intended to argue at sentencing that Robinson
should be sentenced pursuant to the crack cocaine provisions of the Sentencing
Guidelines, U.S.S.G. 2D1.1, Note (D) to Drug Quantity Table, Robinson and the
government ultimately stipulated in a Memorandum of Sentencing Agreement that
Robinson would not be sentenced under the Guidelines crack provisions.
At sentencing, the district court adopted the factual findings and guideline
applications from the Pre-Sentence Report, including a drug quantity finding of 56.7
grams of cocaine base, and after granting the government’s motion for downward
departure pursuant to U.S.S.G. 5K1.1, sentenced Robinson to two years imprisonment
to be followed by five years of supervised release. His term of imprisonment was three
years less than the mandatory minimum of five years. Robinson did not appeal his
conviction or sentence.
On August 12, 1999, the district court revoked Robinson’s supervised release
because he committed a controlled substance offense under state law. The court
sentenced him to three years imprisonment consistent with the statutory maximum
guideline for a Class B felony pursuant to 18 U.S.C. 3583(e)(3). Robinson filed a
direct appeal to us from his revocation sentence. In that appeal, he argued that although
he had pled guilty to possession of cocaine base with the intent to distribute, the term

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"cocaine base" as used in the statute only includes "crack" cocaine base, which the
government made no attempt to prove he possessed and which he never admitted
possessing. Consequently, he argued that because it was never established that he
possessed crack cocaine and because 21 U.S.C. 841(a)(1) and (b)(1)(B) applies only to
that form of cocaine, he should have been convicted only for violating 21 U.S.C.
841(a)(1) and (b)(1)(C), which carries a maximum penalty of 20 years and is a Class C
felony. Accordingly, argues Robinson, he should have only been convicted of violating
18 U.S.C. 3559(a)(3), for which only a two year term of imprisonment can be imposed
for violating the conditions of his supervised release. 18 U.S.C. 3583(e)(3).
In rejecting Robinson’s argument, we first noted that our scope of review was
limited to the highly deferential plain error standard because Robinson failed to make
this argument in the district court at his revocation hearing. United States v. Robinson,
No. 99-5672, slip op. at 6 (3rd Cir. March 29, 2000). Then we noted that because we
had not at that time determined whether the term "cocaine base" as used in 21 U.S.C.
841(b)(1)(B) includes only the crack form of cocaine base, the district court had not
missed controlling precedent and thereby committed a clear or obvious error of law. Id.
Accordingly, we affirmed the district court’s revocation sentence. Id.
On August 1, 2000, Robinson filed a motion pursuant to 28 U.S.C. 2255 in
which he sought to correct his sentence of imprisonment stemming from the revocation
of his term of supervised release. In his 2255 motion, Robinson asserted, inter alia,
that his underlying conviction should have been categorized as a Class C felony,
subjecting him to a sentence of not more than two years for his supervised release
violation and that the failure to specify a drug quantity in the charging documents
constituted error under Apprendi v. New Jersey, 530 U.S. 466 (2000). On July 20, 2001,
the district court entered an opinion and order denying relief. However, the district court
issued a certificate of appealability under 28 U.S.C. 2253(c)(2), with regard to
Robinson’s claim "that he should have been sentenced under 21 U.S.C. 841(a)(1) and
(b)(1)(C), rather than 21 U.S.C. 841(a)(1) and (b)(1)(B)." App. Vol. 1 at 4. On July
25, 2001, the district court entered an amended order correcting a clerical mistake.
This appeal followed.
II.
When Robinson’s 2255 motion was in the district court, he was incarcerated as a
consequence of revocation of his supervised release. However, on October 12, 2001,
Robinson was released from imprisonment. We believe that his release from
incarceration makes his appeal moot.
In Spencer v. Kemna, 523 U.S. 1 (1997), a state prisoner was released on parole
but his parole was revoked and he was returned to prison. He sought to invalidate the
parole revocation by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C.
2254. However, before the district court adjudicated his petition, his sentence for parole
violation had expired and he was released from prison. The Court ruled that the
presumption of collateral consequences which is applied to habeas petitions from
criminal convictions when petitioners are no longer in prison does not apply to
revocations of parole. Id. at 14. Rather, it was the petitioner’s burden to demonstrate
collateral consequences. Id. Ultimately, the Court found that the habeas petitioner’s
case was moot because he was unable to show any collateral consequences that resulted
from his parole revocation adequate to meet Article III’s injury in fact requirement. Id. at
14-18. Admittedly, Spencer involved a revocation of parole; however, we believe that its
reasoning and analysis is applicable to a revocation of supervised release.
In an effort to avoid Spencer, Robinson claims that his appeal is not moot because
he can demonstrate collateral consequences resulting from the revocation of his
supervised release. He first argues that it is possible that his supervised release
revocation could be used as an enhancement in a sentencing proceeding for a future
criminal conviction. However, in Spencer, the Court expressly rejected the possibility of
a sentencing enhancement for future crime or future parole proceedings as a collateral
consequence sufficient to meet Article III’s injury in fact requirement. Id. at 15.
Second, Robinson argues that the revocation of his supervised release has a
collateral consequence because it delayed the commencement of the state prosecution
which was the reason for the revocation for his supervised release. He claims that "an
extension of a period of disability flowing from challenged governmental action has been
held by this Court to be sufficient to satisfy the ’case or controversy’ requirement,

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notwithstanding the constraints imposed by Spencer." Robinson’s Br. at 4. In support of
that argument, he cites to our decisions in Chong v. District Director, INS, 264 F.3d 378
(3d Cir. 2001) and Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).
However, neither decision helps Robinson because they both involved an issue
unique to immigration cases, viz., a bar to readmission to this country following a
conviction for an aggravated felony, that is simply not relevant to Robinson’s case.
Moreover, both cases are procedurally different than Robinson’s. Steele involved a
habeas challenge to the Bureau of Immigration Appeals’ decision that he was
inadmissible because of a prior conviction for an aggravated felony, and Chong involved
a habeas petition seeking relief from a Bureau of Immigration Appeals’ order of removal
following a conviction for an aggravated felony.
III.
In short, we do not believe that Robinson has demonstrated that any collateral
consequences resulted from his revocation of supervised release adequate to meet Article
III’s injury-in-fact requirement. Accordingly, his appeal is moot and we will dismiss it
for lack of appellate jurisdiction.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/Theodore A. McKee
Circuit Judge
DATED:

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