FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 5, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13384

Non-Argument Calendar

________________________

D. C. Docket No. 06-60010-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOHN ROBINSON, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 5, 2007)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
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John Basil Robinson appeals his conviction and sentence for conspiracy to

possess counterfeit securities, in violation of 18 U.S.C. §§ 371 and 513(a). 

Robinson argues that the district court, at the hearing on his counsel’s motion to

withdraw, violated his Sixth Amendment right to counsel of his choosing by

denying his counsel’s motion to withdraw and his motion for a continuance of the

impending sentencing to seek substitute counsel. Second, he argues that the

district court at sentencing abused its discretion by denying his motion for a

continuance to develop additional character evidence. Third, the district court

erred by relying on the pre-sentence investigation report’s (“PSI”) criminal history

calculation, where the report did not describe the underlying circumstances of the

prior convictions. Fourth, his sentence was unreasonable because the district court

failed to consider the 18 U.S.C. § 3553(a) sentencing factors. Finally, he argues

that his counsel was ineffective. For the reasons set forth more fully below, we

affirm.

After Robinson pled guilty to the conspiracy charge, but before sentencing,

his counsel moved to withdraw from representation, citing in essence

communication and trust problems. The court denied the motion at a hearing that

took place one week before sentencing, telling Robinson that he could hire any

attorney he wanted, but that current counsel would not be released until new
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counsel was obtained. Robinson then orally moved for a continuance after telling

the court he was in the process of retaining a new attorney. The court, noting that

Robinson’s counsel’s motion to withdraw had been pending for three weeks and he

could have found a new attorney during that time, denied the motion for a

continuance as well. 

At the sentencing hearing, Robinson’s counsel moved for a 60-day

continuance, explaining only that his client wanted time to prepare character

witnesses and because a potential mental health issue existed. The court

summarily denied the oral motion. Thereafter, the court sentenced Robinson at the

bottom of the guideline range to 51 months’ imprisonment, 3 years’ supervised

release, a fine of $10,000, and $342,165 in restitution. 

I. 

We review for abuse of discretion the district court’s decision denying

counsel’s motion to withdraw. See United States v. Dinitz, 538 F.2d 1214, 1219

n.7 (5th Cir. 1976). Similarly, we review a motion to continue sentencing for

abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1350 (11th Cir.

2007). 

“The Sixth Amendment provides that [i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his
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[defense]. [The Supreme Court has] previously held that an element of this right is

the right of a defendant who does not require appointed counsel to choose who will

represent him.” United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S.Ct. 2557,

2561, 165 L.Ed.2d 409 (2006) (quotation marks omitted). That said, “the right to

counsel of choice is not as absolute as the right to the assistance of counsel.” 

United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005), cert. denied, 547

U.S. 1085 (2006); see also United States v. Campbell, No. 006-13548, slip op.

at 2833 (11th Cir. July 13, 2007) (same). “There are no mechanical tests for

deciding when a denial of a continuance is so arbitrary as to violate due process. 

The answer must be found in the circumstances present in every case, particularly

in the reasons presented to the trial judge at the time the request is denied.” Ungar

v. Sarafite, 376 U.S. 575, 589-90, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964). 

Notably, we have held that:

When deciding whether a denial of a continuance impinged on the

defendant’s fair and reasonable opportunity to choose counsel,

reviewing courts should consider a number of factors, including:

(1) the length of the delay; (2) whether the counsel who becomes

unavailable for trial has associates prepared to try the case;

(3) whether other continuances have been requested and granted;

(4) the inconvenience to all involved in the trial; (5) whether the

requested continuance is for a legitimate reason; and (6) any unique

factors.

Baker, 432 F.3d at 1248.
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As an initial matter, unlike in the cases Robinson cites on appeal, there was

no independent violation of his right to choose counsel here. Rather, the court

properly informed Robinson that he could retain any new attorney that he wanted. 

While Robinson argues that he was bound by local rule to wait for the court’s leave

to acquire new counsel, that rule only requires leave of court to withdraw. 

S.D.Fla.Local R. 11.1.D.3. The rule did not prevent Robinson from finding and

retaining new counsel – something he never did. 

As to whether the district court violated Robinson’s right to choose counsel

by denying the written motion to withdraw and his first oral motion to continue,

weighing in Robinson’s favor is the fact that: (1) the length of the delay he was

seeking was not obviously unreasonable; (2) he had not requested any

continuances previously; and (3) his counsel appeared to believe they were having

problems communicating. Baker, 432 F.3d at 1248.

On the other hand, in the motion to withdraw, counsel did not allege that he

was not being paid, that an actual conflict had arisen, or that he had been fired.

Rather, he only represented that there were communication and trust problems, and

told the court that he wanted to avoid going through litigation on collateral review. 

He also stated that he was prepared for sentencing.

Thus, neither Robinson nor his attorney presented a compelling explanation
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for the withdrawal. This is especially relevant, given that Robinson had not

arranged for a new attorney, something that the court correctly observed he could

do at anytime and specifically could have done during the 20 days between the

filing of the motion to withdraw and the hearing on that motion. For all these

reasons, the court did not abuse its discretion by denying the motion to withdraw or

the motion for a continuance, and consequently did not violate Robinson’s right to

choose counsel.

II.

As already noted, we review a motion to continue sentencing for abuse of

discretion. Edouard, 485 F.3d at 1350. Where no constitutional considerations are

implicated, the defendant “has the burden to demonstrate that the denial [of the

continuance] produced specific substantial prejudice,” and we will analyze the

district court’s decision “in light of the circumstances presented, focusing upon the

reasons for the continuance offered to the trial court when the request was denied.” 

Id.

Counsel based his request for the 60-day continuance on the need to prepare

character witnesses and investigate Robinson’s mental health. However, he did not

explain why this preparation could not have been completed before the hearing,

which had been scheduled for almost 30 days, and did not explain why such a long
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continuance would be necessary. Accordingly, the court did not abuse its

discretion by denying this motion.

Further, even if the court’s denial was error, it is not clear that it resulted in

substantial harm. Specifically, there was extensive character evidence in the PSI,

and the guideline calculation was simple and did not expressly involve character

issues. As to his claim of a mental disorder, the PSI noted that Robinson himself

had stated that he was treating the disorder with exercise and that he did not need

treatment. Further, there had never been a claim that he was not competent.

III.

We review the district court’s interpretation of the sentencing guidelines de

novo and its factual findings under the guidelines for clear error. United States

v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).

According to the rules in U.S.S.G. § 4A1.1, a defendant’s criminal history

score, and therefore his criminal history category, is determined by, among other

things: (1) adding 3 points for “each prior sentence of imprisonment exceeding one

year and one month”; (2) adding 2 points for “each prior sentence of

imprisonment exceeding at least sixty days” not already counted; and (3) adding

one point – but not more than 4 points total – for any prior sentences not already

counted. U.S.S.G. § 4A1.1(a)-(c). This section adds further points: (1) if the
8

offense of conviction was committed while on probation or parole, etc., or less than

two years after release from imprisonment; or (2) for prior convictions of crimes of

violence related to crimes already scored. Id. § 4A1.1(d)-(f).

The guidelines define a “prior sentence” as “any sentence previously

imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.” Id. § 4A1.2(a)(1). The

background commentary to this section states, in relevant part:

Prior convictions may represent convictions in the federal system,

fifty state systems, the District of Columbia, territories, and foreign,

tribal, and military courts. There are jurisdictional variations in

offense definitions, sentencing structures, and manner of sentence

pronouncement. To minimize problems with imperfect measures of

past crime seriousness, criminal history categories are based on the

maximum term imposed in previous sentences rather than on other

measures, such as whether the conviction was designated a felony or

misdemeanor. 

Id. § 4A1.1, comment. (backg’d.) (emphasis added). In contrast, the application of

criminal history enhancements for career offenders and armed career criminals,

among others, depend on information regarding the elements or nature of the

offense, including whether drugs or violence was involved. See U.S.S.G.

§§ 4B1.1, 4B1.2, 4B1.4.

Here, Robinson was not scored as either a career offender or an armed career

criminal. Therefore, as the government notes, and the commentary to the
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guidelines suggests, the only facts necessary in the calculation of his criminal

history here was the existence and date of the conviction and the length of the

sentence. Moreover, although Robinson argued that the PSI’s lack of description

and the sources the probation officer relied upon did not provide enough

information to prove his criminal history score, he did not argue that any of the

information provided was incorrect. Thus, the court had no reason to think that it

could not rely on the PSI to establish the fact and date of the convictions and the

sentences imposed, and therefore his criminal history score. See United States

v. Jones, 289 F.3d 1260, 1266 (11th Cir. 2002) (holding that the district court

properly relied on the unchallenged PSI findings regarding defendant’s financial

status). 

Finally, Robinson on appeal still does not attack the facts contained in the

PSI about his prior convictions, but only alleges that more information regarding

the circumstances of those convictions was necessary. In support of his argument,

Robinson cites Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d

205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109

L.Ed.2d 607 (1990). However, those cases concern sentencing calculations that

required a determination regarding the nature of the prior convictions. See

Shepard, 544 U.S. at 15, 125 S.Ct. at 1257 (reviewing 15-year mandatory
 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 1

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enhancement under Armed Career Criminal Act, 18 U.S.C. § 924(e), which allows

enhancement for a “violent felony,” and clarifying which documents court can

review to ascertain the character of a prior burglary); Taylor, 495 U.S. at 578-81,

110 S.Ct. at 2147-50 (reviewing whether prior burglary conviction justified a 15-

year minimum enhancement for committing a “violent felony” under 18 U.S.C.

§ 924(e)). In Robinson’s case, no such determination was necessary to calculate

his sentence. Accordingly, the district court did not err in this regard.

IV.

Following Booker, we review the district court’s sentence for 1

reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir.2005). Such

review is deferential, requiring us to “evaluate whether the sentence imposed by

the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C.]

section 3553(a).” Id. at 788.

The § 3553(a) factors include: (1) “the nature and circumstances of the

offense and the history and characteristics of the defendant”; (2) whether the

sentence is “sufficient, but not greater than necessary, to comply with . . . the need

for the sentence imposed– (A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense; (B) to afford
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adequate deterrence to criminal conduct; (C) to protect the public from further

crimes of the defendant; and (D) to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment.” 18 U.S.C.

§ 3553(a)(1)-(2).

We have several times held that “nothing in Booker or elsewhere requires

the district court to state on the record that it has explicitly considered each of the

[§ 3553(a)] factors or to discuss each of the [§ 3553(a)] factors.” United States

v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); see also United States v. Dorman,

488 F.3d 936, 944 (11th Cir. 2007) (holding that although the district court had not

explicitly stated that it had considered the § 3553(a) factors, it was clear from the

court’s consideration of objections to the PSI and a motion for a downward

departure that it had indeed considered those factors). This rule, especially in the

case of a sentence within the guidelines, was recently supported by the Supreme

Court. See Rita v. United States, 551 U.S. ___, 127 S.Ct. 2456, 2468-69, 168

L.Ed.2d 203 (2007). Specifically, Rita held that the sentencing judge is only

required to “set forth enough to satisfy the appellate court that he ha[d] considered

the parties’ arguments and ha[d] a reasoned basis for exercising his own legal

decisionmaking authority.” Id. at ___, 127 S.Ct. at 2468. 

Finally, “a sentence may be reviewed for procedural or substantive
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unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.

2006). A sentence is procedurally unreasonable “if it is the product of a procedure

that does not follow Booker’s requirements, regardless of the actual sentence.” Id. 

In this case, Robinson essentially only challenges the procedure the court

used in imposing sentence, but does not challenge “the actual sentence.” Id. 

Specifically, he argues that the sentence was by its nature unreasonable because the

court failed to consider the § 3553(a) sentencing factors, generally, and his bipolar

disorder particularly. Thus, he has not raised a challenge to the substantive

reasonableness of his sentence, and that issue is therefore abandoned. United

States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“issues and contentions not

timely raised in the briefs are deemed abandoned”).

The court here expressly stated that it had considered the statements of the

parties and the PSI, including the advisory guidelines, and “the statutory factors.” 

Further, during the hearing the court discussed the length of the conspiracy, the

amount stolen, Robinson’s explanation of the offense, and his criminal record. See

18 U.S.C. § 3553(a)(1)-(2). Both parties then asked the court to sentence Robinson

within the guidelines. Accordingly, the district court did not err by failing to

provide further analysis of the sentencing factors, as it is clear from the substance

of the hearing – and from the court’s own statement – that it did indeed consider
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them. Dorman, 488 F.3d at 944. As to the suggestion that Robinson had a mental

health issue, Robinson’s counsel only noted this as a “potential mitigating factor,”

and did not press the issue any further. In addition, the issue was addressed in the

PSI, which the court stated it had read. There, Robinson reported that he did not

believe he needed treatment. Thus, nothing about this specific issue suggests that

the district court failed to consider the sentencing factors.

Thus, the court did not err, and Robinson’s sentence was procedurally

reasonable.

V.

It is well established that we generally will not consider ineffective

assistance of counsel claims on direct appeal unless there is sufficient evidence on

the record. See United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir. 1992);

see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694,

155 L.Ed.2d 714 (2003). Specifically, “[t]o obtain a reversal of a conviction

because of constitutionally ineffective assistance of counsel, a defendant must

show that counsel’s performance was deficient, and that the deficient performance

prejudiced the defense. Counsel is held to a standard of ‘reasonably effective

assistance[.]’” Andrews, 953 F.2d at 1327. 

Although clearly Robinson and his sentencing counsel had problems in their
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relationship, the record does not contain sufficient evidence regarding counsel’s

performance for us to review it. Massaro, 538 U.S. at 504-05, 123 S.Ct. at 1694. 

Furthermore, there is no need to raise the issue here in order to preserve it for

collateral review. Id. at 504, 123 S.Ct. at 1694 (“We hold that an ineffectiveassistance-of-counsel claim may be brought in a collateral proceeding under

§ 2255, whether or not the petitioner could have raised the claim on direct

appeal”).

In light of the foregoing, Robinson’s sentence is 

AFFIRMED.