Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10668

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LESTER HENRY ROBINSON

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CV-37

USDC No. 3:92-CR-365-27

Before REAVLEY, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Lester Robinson, federal prisoner # 23967-077, pleaded guilty in 1994 to

conspiracy to distribute and possess with intent to distribute cocaine and cocaine

base. In 2006, the district court granted Robinson’s motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) lowering his original life sentence

to a 400-month term of imprisonment. Robinson now appeals the district court’s

dismissal as successive of his 28 U.S.C. § 2255 motion. He asserts that the

United States Court of Appeals

Fifth Circuit

F I L E D

April 28, 2009

Charles R. Fulbruge III

Clerk
No. 07-10668

2

instant motion was not successive because it raised a challenge to the 2006

sentence under United States v. Booker, 543 U.S. 220 (2005).

To the extent that Robinson is challenging the fact that his sentence was

enhanced based on facts not admitted by him or found by a jury, those factual

findings were made by the district court in conjunction with the original

sentencing, and those claims thus constitute a successive § 2255 challenge to the

original criminal proceeding. See United States v. Orozco-Ramirez, 211 F.3d 862,

869 (5th Cir. 2000). In his objections to the magistrate judge’s report, however,

Robinson argued that the district court improperly applied the Guidelines in a

mandatory fashion during the 2006 resentencing. As the Government concedes,

this issue could not have been raised in conjunction with the original sentencing

and it is thus not successive. Nevertheless, Robinson could have raised this

claim in a direct appeal from his resentencing, but because but he did not do so

the claim is procedurally barred from collateral review absent cause for the

default and actual prejudice as a result. See United States v. Kallestad, 236 F.3d

225, 227 (5th Cir. 2000).

When the movant has been given notice of a procedural default and an

opportunity to argue against the procedural bar, and the Government has not

intentionally waived the bar, we may raise the issue sua sponte. See Smith v.

Johnson, 216 F.3d 521, 523–24 (5th Cir. 2000). We therefore requested

supplemental briefs on the procedural default issue from Robinson and the

Government, and both parties have complied. As cause for failing to file a direct

appeal from his resentencing, Robinson argues that he was resentenced in

absentia, he lacked appointed counsel, he received the court’s resentencing order

over two weeks after it was entered, and the district court did not advise him of

his right to appeal. To show cause for a procedural default, a movant must

“show that ‘some objective factor external to the defense’ prevented him from

raising on direct appeal the claim he now advances.” United States v. Guerra,

94 F.3d 989, 993 (5th Cir. 1996) (citation omitted). Robinson’s allegations do not
No. 07-10668

3

establish “cause” for his procedural default, see id., and we find no waiver of the

procedural bar by the Government. Robinson was resentenced in January 2006,

yet he did not even file the instant motion until nearly a year later in January

2007. Moreover, Robinson is also required to demonstrate actual prejudice by

demonstrating “not merely that the errors . . . created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage.” Hughes v.

Quarterman, 530 F.3d 336, 341 (5th Cir. 2008) (internal quotation marks and

citation omitted). Robinson does not even address, much less show, prejudice in

his supplemental brief, and the issue is therefore waived. See Yohey v. Collins,

985 F.2d 222, 225 (5th Cir. 1993). Because Robinson fails to overcome the

procedural bar, he is not entitled to relief even assuming arguendo that his claim

is not successive.

AFFIRMED.