NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 07a0520n.06 Filed: Jul y

20, 2007 No. 05-1936 U N IT E D S T A T E S C O U R T O F A P P E A LS F O R T H E S IX T H C IR C U IT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. ROY AL L EN ROB I

NSON, De fe nd ant- Ap pe lla

nt. )

) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI ST R I CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN
OPI NI ON

Be for e : S ILER , G ILM AN , a nd G RI F F IN , C ir c uitJudg e s. RONALD L EE GILMAN, Cir cuit Judge. This is a direc t a ppeal from a jur

y verdic t that found Roy

Allen Robinson g uilty of being a felon in possession of ammuni tion. Robinson allege s t h at (1 ) h e r ec ei v edco n s t i tu t i o n al l y i n ef fe ct i v e a s s i s t an ce o f c o u n s e l , a n d (2 ) t h e d i s t ri ct j u d ge imposed an unrea sonable and inadequately explained se ntence
. For the rea sons set forth below, w e DENY R o b i n s o n ’ s i n e f

f e c t i v e - a s s i s t a

nc e -o f- c ouns e l c la im a s p re matur e , b ut AF F IRMthe judg ment of the dis tr ic t c ourt
.

I. BACKG ROUND A. F ac tu al b ac kgr oundNo. 05-1936

United States v. Robinson

- 2 - Early in the morning of Jul y

4, 2003, Detroit police of fice rs Walter Har

ris and Glen Johnson drove in the ir squad car to the are a of Mt. Elliott a nd Selkirk Streets in D etroit
. T h ey were investigating a

repor t t h at a vehicle w as beingstripped. When they arr ived, the off

icer s observe d five or six men “crouc hed” in the street near a parke d car . Offic er J ohnson, who was driving, turne d
on his br ig ht l ig hts to t e mpo ra ri ly “ bli nd ” the me n a

nd to d isguis e the sq

ua d car. On e of

the me n in the g roup stood, pocke t ed what appea red to be dice a

nd some money , and ra

n into a neig hboring house as the of

fice rs exited their vehicle. T he other men obey ed the of

fice rs’ instructions to stand ag ainst the parke d car

and plac e their ha

nds on its top. Offic er H arr is shone his flashlig ht on the m en while Office r Johns on beg an to frisk them for
wea pons. During this ti me, Har ris noticed that one of

the men, later identified as Robinson, was
a tte mpt ingto p ut h is r ig ht h and int o h is r ig ht p ants ’ p oc ke t. H arr is war ne d Ro bin so n to ke e p h is hands o nth e c ar , b u t R o b in s o na g a in a tt e mp te d

to p u t h is h an d

in h is p o c k e t. A f

te r w arning Robinson once more, Harr is moved t o stand direc tly behind hi m. Robinson then ran into an adjac ent
vaca nt lot that was littered w ith debris. Har ris chase d Robinson int o the field, orde ring Robinson to s top . A c c or din g to his tr ia l te sti mony , Ha rr is ob se rv e d Ro bin so n tr ip a nd fa ll o n s ome de br is, ro ll, g et bac k to his fee t, and continue r unning. B y

this point , Har

ris had dra

wn his service wea

pon and
wa s p oin tin g it at Ro bin so n. Ha rr is o rd e re d Ro bin so n to sh owhis ha nd s. Rob ins on

a lle g e dly
rea ched into his rig ht pocket and pulled out a handgun and page r, which he dropped on the g round. Offic e r H ar r is te s ti f ie d th a t h e th e nb e g anto s tr

u g g le w it hRo b in s o n , w r e s tl in g h im to th e g r o u nd in an attempt to handcuf

f him.No. 05-1936

United States v. Robinson

- 3 - Around this time, Office r Johns on remove d a shotg un from the trunk of the squad c ar a nd “ra cked” it, which place s a round in the c hamber and make s a di stinctive sound. Harr is testified that Robinson st opped s t ru ggl ing when he he ard the sound of the shotg un beingrac ked. Af ter handcuf fing Robinson, Harris sea

rche d for additional wea

pons and found a knife in Robinson’s left front pocke t. J ohnson arr ived in the field to assist Har ris and observed Harris retrieve a g un from the gr o u n d
. H ar

r is te s ti f ie d th a t t h e g u nw a s lo a d e d

an d h a d a b u ll e t i nth e c h a mb e r . Jo h n s o n’s location when he rac ked the shotgun, and whether J ohnson ever observe d Robinson with a g un, wer e disputed fac ts at trial. Robinson was arr ested a

nd taken to the pr ecinc t p o l i ce s t ation. At some point during the bo ok ingpr oc e ss, he a lle g e dly sa id t o O ff

ic e r H arr is: “ At

le a st I did n’ t pu ll the g un

on y ou a ll. Just g et me for

the knife.” Robinson wa s char g ed with beinga fe lon in possession of ammuniti on, appar ently

beca use the g overnme nt could not establish an i n t er s t at e nexus to the gun itself. The parties stipulated that no identifiable fing erp ri n t s wer e re cover ed fr om either the gun or the ammunition. B. Trial issu es I n his opening statement, R obinson’s trial counsel tol d the j ury that “we expect [R obinson] will testify

in this case. . . . He ’s g oing to g et on the wit n es s s t and and he is goingto testify tr uth fu lly .” De fe ns e c ouns e l t hen told the jur y wh a t he e xpe c te d Ro bin so n w ou ld s ay in h is testimony , including that he was not involved in any wrong doing a

nd never had a gun. A s part of his case, de fense counsel did ca ll Robi nson to the stand, but asked him only to state his name on the
re c or d, the n d ism iss e d h im w ithno fu rt he r qu e sti on s. De fe ns e c ouns e l a dv ise d th e jud g e that th isNo. 05-1936

United States v. Robinson

- 4 - was a “tec hnique that [he had] used over a number of year s” to prec lude the prosecution from asking his clients questions about their prior c onvictions. Whe n off e re d th e op po rt

un ity to c ro ss- e xami ne Rob ins on , th e g ov e rnme nt s tate d th a t Ru le 61 1( b) of the F e de ra l Ru le s o f E vid e nc e pr e ve nte d it fr om a sk ing any que sti on s, and that it
a c c or din g ly ha d no qu e sti on s. Rul e 61 1( b) pr ov ide s th a t “ [c]r os s- e xami natio n s ho uld be lim ite d to the subject matter

of the dire ct examination and matters aff ecting the cre dibilit y of the witness. The court may , in the exercise of discretion, per

mit inqui ry

into additiona l m atters a s if on direc t examination.” Def ense c ounsel later a sked the district c ourt to e ither g ive an instruction r eg arding Rule 611 or to “re aff

irm” to the jury

that statements by

lawy ers a

re not e viden ce. The cour t responded by noting that it had already informed the jury in its preliminary

jury instructions that statements and argument by lawy ers a

re not e vidence , and dec lined to offer an additional instruction. In his closing argument, defe nse counse l did not explain why Robinson had not testified as c ounsel had promised during the openingstatement. He commented instea d on Robinson’s “posture” a nd the fa ct that he “stood up like a man” when he took the stand. C. Ro bins on’ s se nt e nc ing he ar ing Acc ording to t h e P re s entence Report ( PSR ), Robinson’s total offense level wa s 24 and he fe ll i n c ri min a l hi sto ry

c a te g or y I V. Th e se fa c tor s yie lde d a Se nte nc ingGu ide lin e s r ang e of 77 to 96 mon ths of

imp ri so nme nt. No ob

je c tio ns we re fi le d to the PSR p ri or to s e nte nc ing . Ro bin so n to ld the cour t under oath that he had r eviewe d t h e PSR wit h his counsel and wishe d to make no
corr ections or modifications to i ts contents. When asked dire ctly about ce rtain deta ils of his criminalNo. 05-1936

United States v. Robinson

- 5 - history , howeve r, Robinson reporte d that the PSR misstated the dates of a

previous off

ense a nd sentenc e, but was othe rwise “substantially corr ect.” Both Robinson and his attorney urg ed the c ourt to look bey ond the cr iminal hist ory points a rising from his convictions that wer e more than ten y ear s old and to focus on the positive steps that Robinson had take n to “be on the r ight tra ck.” The district judg e follo we d the then-pr evailingprac tice in the fa ll of 2004 and imposed alternative sentenc es, one ba sed on t he Sentenc ing Guidelines and a n alternative in the event that the Supreme Court found the Guidelines “inef fec tive or inapplica

ble or unc onstitut ional in some form or anothe r.” A fter notingthat he wa s “oblig ed under t h e l aw ” t o t ake Robinson’s past c riminal activity into account, the district judge then imposed a sentenc e of 77 months’ imprisonment under the Guidelines a

nd rec om m en ded assig nment to a fa cility with a compre hensive drug -treatment prog ram. The alternative sentenc e wa s identical to the Guidelines se ntence
. When asked if he understood his sentenc e, Robinson stated that he had expected, base d on his c on ve rs a tio ns wi th a

pr ob a tio n o ff

ic e r, a se nte nc e in t

he ra ng e of 18 to 2 7 mo nth s: Iwas unde r the impression that by it being a mmuniti on, Ithought it was a y ear to 27 months all while we was g oing throug h this. When I had my Presentenc e Report, I talked to them re al g ood and they said my workingand eve ry

thing, that’ s what wa s s ai d , 1 8 t o 2 7 m o n t h s . T h at ’s wh at Iwa s u n d er t h e u n d er s t an d i n g. T h e d i s t ri ct co u rt ex p l ai n edt h at R o b i n s o n ’s cr i m i n al h i s t o ry p o i n t s p u th i m i n t h e Gu i d el i n es ra n ge of 77 to 96 months. Robi nson continued to state that he ha d been told to expect a r ang e of 18 to 27
mon ths . A c c or din g to t

he g ov e rnme nt, Rob ins on ha d sp ok e n w iththe Pr ob a tio n O ff ic e be fo re his criminal history

points had been de termined. De fense counsel said that he had be en unaw are that Robinson ex pecte d a shorter s en tence , and aske d the cour t to delay enter ing the judgme nt for aNo. 05-1936

United States v. Robinson

- 6 - period of time. The court de clined to do so and instead a dvised Robinson’s attorney to file a motion seekinga modification of the sentenc e if he b el i ev ed t h at such a motion was warr anted. No suc h motion was ever

filed. Robinson now appeal s , al l egi n g t h at (1 ) h i s t ri al co u n s el p ro v i d edi n ef fe ct i v e a s s istance w

hen he pr omi se d th e jur

y that Robin so n wou ld te sti fy tr uth fu lly a bo ut t he fa c ts o f h is c a se but f

a ile d to put Robinson on t he stand fo r t h at purpose, a nd (2) the c ase should be r emande d for r esente ncing beca use there is insufficient evidenc e in the re cord to a llow for ef fec tive appellate revie w.
II. AN AL YSI S A. Stand ard of review As a g e ne ra l rul e , a cla im of ine ff e c tiv e a ssi sta

nc e of c ouns e l shou ld not be ra ise d f or the fi rs t time on direc t a

ppeal. Un ite d S

tates v . A gu wa , 123 F.3d 418, 423 ( 6th Cir. 1997) (holding that the
re c or d o n d ir e c t a

pp e a l w a s in su ff

ic ie ntl y de ve lop e d to per

mit the a pp e llate c ourt

to a sse ss t he me ri ts of the c la im) (q

uo tatio n mar

ks and c itatio n o mitte d) . “ [I ]ne ff e c tiv e -a ssi sta

nc e c la ims or din ari ly

wi ll be lit ig a te d in

the distri ct c ourt , th e fo rum be st s uit e d to de ve lop ingthe fa c ts n e c e ssa ry to deter mini n g t h e adequa cy

of re prese ntation during an entire trial.” Massaro v. United States , 538 U.S. 500, 505 (2003). This court has made rare exceptions to this g ener al rule where the re cord ha s been a dequate ly

develope d in the district court. See, e .g. , United States v. Pierc e , 62 F.3d 818, 833 (6th Cir. 1995) (takingup the issue of inef fec tive assistance of counse l on direct a ppeal whe re the district court had denied the defe ndant’s mot ion for a new trial afte r holding an evide ntiary hear ing)
.No. 05-1936

United States v. Robinson

- 7 - The sentence imposed in a criminal case will be revie wed f or re asonable ness. United States v. Book er , 5 4 3 U. S
. 2 2 0 , 2 6 1 -6 3 (2 0 0 5 ). A s en t en ce wi t h i nt h e p ro p er l y ca l cu l at edGu i d el i n es ra n ge
rec eives a rebuttable presumption of re asonable ness. Rita v. United States , 127 S. Ct. 2456, 2463-65 (2007). “ T h e sente ncingjudge should set forth enoug h to satisfy the appe llate cour

t that he has considere d the par

ties’ ar g uments and has a rea soned b as i s for e x erc ising his own leg al decisionmaking authority .” Id
. at 2468. Where the arguments are “straig htforwa rd” a nd “conc eptually

simple,” a brie f statement of rea sons may

be “le g ally

sufficie nt.” Id. B. Ineff

ect ive assistance of counsel Robinson arg ues that hi s conviction s hould be vacated and his case rema nded for a new trial be c a us e his tr ia l atto rn e y

wa s c on sti tut ion a lly

ine ff e c tiv e . H e po int s o ut t

hat hi s tr ia l atto rn e y

tol d the jur y duri ng his op e nin g state me nt that Ro bin so n w ou ld t a ke the sta nd and “ te sti fy tr uth fu lly” to the re levant fa cts. But in fa ct Robinson did not t estify as to any thing r eg ardinghis case. Robin s o n c o n te n d s th a t h is a tt o r n e y ’ s p e r f

o r ma n c e w a s w e ll b e lo w th e r an g e of profe ssionally

competent assistance and was in fac t objectively unrea sonable. The defe nse theory of the c ase w as that the police office rs wer e not c redible. Robinson arg ues that his attorney ’s fa ilure to present Robinson’s ac count of the e vents leadingto his arre st, despite telling t h e j ury that Rob ins on wa s ex pected

to s o te sti fy , w a s “ e g re g iou sly ine ff e c tiv e ” and

un de rm ine d th e de fe ns e theory . This “broke n promise,” a ccor ding to Robinson, constitutes constituti onally ineffe ctive assistance of counse l. Robinson relies on a Seventh Circuit ca se, Un i t ed S tates ex re l. Hampton v. Leibach , 347 F.3d 219 ( 7th C i r. 2 0 0 3 ), which held that a n attorney ’s fa ilure to deliver on a promise that theNo. 05-1936

United States v. Robinson

- 8 - defe ndant would testify

could be both unre asonable and pre judicial. Id . at 25 7- 60 . B ut Hampton involved an appe al from a district court judg ment g rantingthe def endant’ s petiti o n fo r habe as corpus, ba sed in part on f

indings fr om an evidentiar y hear ing. Id . at 229-34. B oth the defe ndant and his trial attorney

had testified at the evidentiar y hear ing, de veloping a deta iled rec ord on the ineffe ctive-a ssistance-of

-counse l claim. Id
. The re cord in the prese nt c ase, howeve r, contains only the trial transc ript, which Robinson quotes extensively

in his brief to this court, and Robinson’s rec itation of the Strickland standard f

or a findingof ineff

ec t i v e as s i s t an ce of counsel. “ As in most direct appe als, . . . the re cord c ontains scant information” conce rning the investig ation, analy sis, and strateg y of Robinson’s counsel. See United States v. Bradley , 400 F.3d 459, 461 ( 6th Cir. 2005). Wit hout suc h information, we c onclude that the re cord is inade quately develope d for us to make a rulingon this iss ue. C. Reasonableness review Th e se nte nc inghe ari ngin t his c a se too k p la c e on

De c e mbe r 1 4, 20 04 . O n th is p os t- Blak e ly but pre- Booke r

date , the dis tr ic t court be g an by e xpla ini ngits po st- Blak e ly prac tice of imposing two sentenc es i n criminal cases, one based on the S entenc ing Guidelines and an alternative “in t he eve nt that the Supreme Court de termi n es . . . that the cur rent Sentenc ing Guidelines are ineffe ctive or inapplicable or

unconstitutional in som e for m or another .” The district co u rt stated that it was

“ ob lig e d un de r the law” to c on sid e r Rob ins on ’s c ri min a l his tor y in de te rm ini ngthe se nte nc e . N e xt, the co u rt noted that the statutory maxi mum sentence was 10 y ear s, but that the Guidelines contemplated a

77 to 96 month se ntence rang e. Wit h littl e further discussion, the court imposed a
se nte nc e of

77 months in p ri so n a

nd re c omm e nd e d th a t R ob in so n b e pla c e d at a fa c ili ty ne ar h isNo. 05-1936

United States v. Robinson

- 9 - family that offe red a

compre h en s i v e d rug trea tment prog ram. The alternative sentenc e wa s “esse ntially

and substantively ” identica l. Booke r has since r ender ed invalid the district cour t’s primary

sentenc e, which a ssumed that th e G u id e li n e s w e r e ma

n d a to r y . B u t th is c o u rt h a s h e ld th a t such a B o oker vio latio n is ha

rm le ss wher e the district cour

t adequately

articulates an identica l alternative sen t ence . United States v. McBride , 4 3 4 F
. 3 d 4 7 0 , 4 7 3 ( 6 t h C i r . 2 0 0 6 ) ( f i n d i n g a n y Booke r

err or in the district court’ s enhanc ement of the sentenc e base d on impermissible factf inding to be ha

rmless bec ause the court articulated an identical alternative sentence in anticipation of Booke r ). Rob ins on do e s n ot a

rgue to the contra ry on appea l. We must still deter mine, howeve r, if the a lternative se ntence is reasona ble. Id
. A w ith in- Gu ide lin e s se nte nc e is e nti tle d to a no nb ind ingpr e sumpt ion of re a so nab le ne ss. Ri ta , 127 S. Ct . at 2463. The district c ourt nee d not ritualistically rec ite eac h fac tor provided in 18 U.S .C. § 3 55 3( a ), “ but mu st a rt ic ulate its re a so nin g in d e c idi ngto i mpo se a se nte nc e in o rd e r t o allow for rea sonable a

ppellate r eview.” United States v. Kirby , 418 F.3d 621, 626 ( 6th Cir. 2005). This court re cently

vacated and r emande d for r esente ncinga judgm ent wher e the district
c ourt fa ile d to e vin c e any

c on sid e ratio n o f t

he § 3 55 3( a ) f

a c tor s in imp os in g a sen ten ce that f e ll within the applicable Guidelines rang e. United States v. Johnson , 467 F.3d 559, 563 (6th Cir. 2006) (holding that “the district

c o u r t’ s s e nte n c e [wa s] not proce durally rea sonable” wher e the district cour t “provide [d] no indication at all of why it felt that Defe ndant’s sente nce w as appr opriate, other than to state that it was appropriate under the Guidelines”)
. The weig ht that we should g ive to Johnson is uncerta in in l ight of

the Supreme Court’s de cision in Ri ta . But we need not r eac h that issueNo. 05-1936

United States v. Robinson

- 10 - beca use we conclude that the district court suff iciently considere d the § 3553(a ) fa ctors in imposing a sente nce on Robinson. The district cour

t below implicitly

adop t ed t h e finding s of the PSR, which assigne d an of fe ns e le ve l of 24 and

a c ri min a l hi sto ry

c a te g or y of I V t o Ro bin so n. As a

re su lt, the c ourt

pr op e rl y found t hat th e a

p p li c a b le Se n te n c in g G u id e li n e r an g e w a s 7 7 to 9 6 mo n th s ’ im p r is o n me n t. T he district court addr essed Robi nson’s criminal hi story and his char acte ristics, including the fac t that the sent en ce wa s aff

ecte d by “cr iminal activity

[t hat] occurr ed a numbe r of y ear s ag o.” In the sentenc e, the district cour

t rec ommended that Robinson be assigned to fac ility near his family so that they might be a

ble to visit. The court also re commended a fac ility with a compre hensive drug treatment prog ram. As the Supreme Court stated in Ri ta , “[w]e acknowledg e that the judg e mig ht have sa id more.” 127 S. Ct. at 2469. But the Ri ta court a lso stated t h at “[ w] h er e a matter is as
co n ce p tu al l y

s i mp l e a s i nt h e c as e a th an d an d t h e r e co rdm ak es cl ea r t h at t h e s en t en ci n g j u d ge considere d the evidenc e and a rguments, we do not believe the l aw requires the judge to write more
e xte n s ively .” Id
. W e thus conc lude that the re cord in the pr esent c ase satisfies, albeit bare ly , the require ments of Ri ta .

III . C ON CL USI ON Fo r a l l o f t h e r ea s o n s s et fo rt h above, w e DENY Ro b in s o n ’ s in e f

f e c ti v e - a s s is ta

n ce- of-c ounsel
c la im a s p re matur e , b ut AF F IRM the judg ment of the district cour t.