* 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should not be published and is not precedent except under the limited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. 07-20376

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANTHONY ROBINSON, also known as Tony Marcel Robinson

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:00-CR-286-1

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

In December 2000, Anthony Robinson was found guilty by a jury of

conspiracy to possess with intent to distribute 1000 kilograms or more of

marijuana, aiding and abetting possession with intent to distribute 100

kilograms or more of marijuana, aiding and abetting possession with intent to

distribute 1000 kilograms or more of marijuana, and conspiracy to launder

monetary instruments. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-20376

2

The Presentence Investigation Report(“PSR”) recommended a sentencing

range of 292 to 365 months under the Federal Sentencing Guidelines based on

upward departures for aggravated role and obstruction of justice. Robinson filed

written objections to the PSR, contending that his base offense level was

calculated using drug amounts that were not proven beyond a reasonable doubt.

He also objected to the enhancements for his leadership role and for obstruction

of justice on the ground that there was insufficient evidence to support those

enhancements. The district court found that the enhancements for leadership

role and obstruction of justice applied, butlowered the drug quantity determined

by the PSR. The district court’s findings placed Robinson’s sentence in a range

of 235 to 293 months under the Guidelines. The district court sentenced

Robinson to 235 months in prison. Robinson appealed. 

On remand for resentencing in light of the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), the district court adopted the same

findings it made at Robinson’s initial sentencing hearing. This placed

Robinson’s sentence in the same Guidelines range, 235 to 293 months. The court

then varied the sentence downward from the Guidelines range under its postBooker discretion because it concluded that even a sentence at the lowest end of

the range would leave Robinson with an unfairly and unreasonably high prison

term as compared to his co-conspirators. Robinson was resentenced to 180

months of imprisonment.

Robinson argues on his appeal of the resentencing that this court’s postBooker requirements that a district court use the Guidelines as a point of

reference in determining a sentence and give reasons for any significant variance

from the Guidelines’ range render the Guidelines “quasi-mandatory.” He

contends treatment of the Guidelines as quasi-mandatory requires that

sentences be based only on facts pleaded in the indictment and proven to a jury.

See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In the case at hand, he

contends that facts supporting enhancements for his leadership role and for
No. 07-20376

3

obstruction of justice should not be considered because they were not pleaded in

the indictment or proven to a jury. 

Robinson’s argument is without merit. The requirements that a district

court begin sentencing by calculating the applicable Guidelines range and then

explain any variance therefrom do not run afoul of Booker and do not render the

Guidelines “quasi-mandatory.” The Supreme Court mandates these post-Booker

procedures. See Gall v. United States, 128 S. Ct. 586, 594, 596-97 (2007); Rita

v. United States, 127 S. Ct. 2456, 2465, 2468-69 (2007). In addition, Booker

eliminated Sixth Amendment concerns that would otherwise have prohibited

sentencing judges from finding all facts relevant to sentencing. United States

v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Thus, “[t]he sentencing judge is

entitled to find by a preponderance of the evidence all the facts relevant to the

determination of a Guideline sentencing range . . . .” Id.; United States v.

Johnson, 445 F.3d 793, 798 (5th Cir. 2006), cert. denied, 126 S. Ct. 2884 (2006).

Accordingly, we find no error and affirm the district court.

AFFIRMED.