IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30682

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLARENCE ROBINSON, JR.,

Defendant-Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:94-CR-26-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

In 1995, Clarence Robinson, Jr., was convicted by a jury of possession of 

a firearm by a convicted felon, and, after being categorized as an armed career 

criminal, was sentenced to life imprisonment and ordered to pay a $50 special 

assessment. We affirmed the judgment of the district court. United States v. 

Robinson, No. 95-31288, 1996 WL 595692, at *1 (5th Cir. Sept. 25, 1996)

(unpublished).

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 1, 2019

Lyle W. Cayce

Clerk

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In 2016, after his previous motions for postconviction relief were denied, 

we granted Robinson leave to file a successive 28 U.S.C. § 2255 motion in light 

of Johnson v. United States, 135 S. Ct. 2551 (2015), which determined that the 

residual clause of the Armed Career Criminal Act was void for vagueness. The 

district court granted the ensuing § 2255 motion, vacated Robinson’s sentence, 

directed the preparation of an amended presentence report (“PSR”), and 

ordered a resentencing hearing. The district court consequently resentenced 

Robinson within the amended guidelines range to 120 months in prison, 

imposed a $100 special assessment, and ordered the instant sentence to run

consecutively to undischarged sentences for convictions in the Eastern District 

of Texas.

Robinson argues that the district court erred at the resentencing hearing 

by overruling his objections to the amended PSR. He contends that the district 

court improperly concluded that the objections—which were reiterations of the 

objections that he raised at his initial sentencing as to the original PSR—could 

not be revisited because they were outside the scope of the resentencing. The 

Government maintains that Robinson’s arguments as to the disposition of his 

objections are barred and waived pursuant to the “mandate rule.” We need not 

address the applicability of the mandate rule and may proceed to the merits of 

the objections because Robinson has not shown any error. See United States v. 

Simpson, 796 F.3d 548, 552 & n.7 (5th Cir. 2015).

Robinson challenges the imposition of a one-level enhancement under

U.S.S.G. § 2K2.1(b)(1) and a four-level enhancement under § 2K2.1(b)(5), 

arguing that the information supporting the enhancements is unreliable 

because it is premised on hearsay. However, he fails to offer competent 

evidence to rebut the PSR and does not now meaningfully explain why the PSR 

is untrustworthy or false. See United States v. Harris, 702 F.3d 226, 230-31

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(5th Cir. 2012). His claim that the PSR is unreliable because it contains

unspecified hearsay evidence is perfunctory and unavailing. See United States 

v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006). Likewise, his assertion that the 

enhancements wrongly were based on uncharged conduct is conclusory and 

baseless. See U.S.S.G. § 1B1.3; United States v. Brummett, 355 F.3d 343, 

344-45 (5th Cir. 2003). Thus, he has failed to establish that the district court 

clearly erred in refusing to grant his objections. See United States v. Vital, 68 

F.3d 114, 120 (5th Cir. 1995).

Robinson further asserts that his 120-month sentence was substantively 

unreasonable. He maintains for the first time on appeal that the district court

gave significant weight to his prison disciplinary records even though the facts 

underlying the disciplinary decisions were not disclosed or detailed. He argues

that the disciplinary records are equivalent to bare arrest records. Due to the 

lack of apposite authority, Robinson has failed to establish that any error was 

plain. See United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Even 

if the district court clearly or obviously erred, Robinson has failed to show that 

it is reasonably probable that he would have received a lesser sentence if the 

district court had not considered the disciplinary records. See United States v. 

Jones, 444 F.3d 430, 438 (5th Cir. 2006).

Robinson also alleges that his sentence was substantively unreasonable

because the district court ordered his instant sentence to run consecutively to 

undischarged federal sentences. The record establishes that the district court 

was made aware of the relevant factors before imposing a consecutive sentence, 

and thus is presumed to have considered them. Specifically, the district court 

was advised of the pertinent factors—including the offense conduct, Robinson’s 

history and characteristics, his criminal history, the seriousness of his criminal 

conduct and the likelihood that he would commit additional crimes, the facts 

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of the undischarged sentences, and the propriety of consecutive sentences—in

the PSRs and addenda thereto and through the parties’ sentencing arguments. 

See United States v. Izaguirre-Losoya, 219 F.3d 437, 440 & n.13 (5th Cir. 2011). 

To the extent that Robinson argues that the district court viewed as mandatory 

the Sentencing Guidelines—which recommended that the sentences be served

consecutively—his contention is conclusory and not supported by the record.

Robinson otherwise suggests that the district court improperly evaluated 

the relevant sentencing factors by not crediting his rehabilitation in prison or 

his other proffered grounds for leniency. The record supports that the district 

court based its decision on an individualized assessment of the facts of the case 

in light of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 

38, 49-50 (2007). We may not reweigh the district court’s evaluation of the 

§ 3553(a) sentencing factors. See id. at 51-52. Robinson’s disagreement with 

the sentence imposed does not rebut the presumption of reasonableness that 

attaches to it. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

Finally, he correctly contends—and the Government concedes—that the 

imposition of a $100 special assessment at resentencing violated the Ex Post 

Facto Clause because he completed the instant offense prior to April 24, 1996. 

See 18 U.S.C. § 3013(a)(2)(A); United States v. Herrera-Solorzano, 114 F.3d 48, 

50-51 (5th Cir. 1997). Further, because a $50 special assessment was imposed

at the initial sentencing hearing, the district court impermissibly imposed

cumulative assessments for a single conviction by imposing an additional 

assessment at resentencing. See Rutledge v. United States, 517 U.S. 292, 

301-03 (1996); United States v. Corona, 108 F.3d 565, 571-72 (5th Cir. 1997). 

Because Robinson paid the $50 special assessment imposed at his original

sentencing, there is no outstanding balance. Thus, the district court’s 

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judgment should be modified to remove the special assessment. Any money 

Robinson paid towards the $100 special assessment should be refunded.

AFFIRMED; JUDGMENT MODIFIED.

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