United States v. Robinson, No. 22-1472 (7th Cir. 2023)
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Robinson let Solorzano, stay at his Chicago home. The two frequently exchanged coded text messages about cocaine deals. Robinson drove to Indiana to pick up Solorzano after a transaction ended with Solorzano getting robbed. Robinson later texted Solorzano, “You should have taken me to watch your back.” Later, Solorzano arranged a deal with an undercover officer. Robinson drove him; upon their arrival, authorities approached the vehicle to arrest them. One officer said that, during the arrest, he saw his colleague pull a handgun from Robinson’s waistband; it was loaded. The officer who interrogated Robinson said that Robinson told him he had brought the gun to avoid being robbed. A jury found Robinson guilty of conspiring to possess cocaine with intent to distribute and of possessing a firearm as a felon but found him not guilty of possessing a firearm “in furtherance of” the conspiracy, 18 U.S.C. 924(c)(1)(A). The court imposed a sentencing enhancement to the felon-in-possession conviction, finding Robinson possessed a firearm “in connection with” the cocaine conspiracy, U.S.S.G. 2K2.1(b)(6)(B).
The Seventh Circuit affirmed. The use of acquitted conduct to enhance Robinson’s sentence did not violate his constitutional rights and the court made sufficient factual findings to apply the enhancement. The district court’s rationale for connecting the gun to the cocaine conspiracy was clear.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1472 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PHILLIP ROBINSON, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 19-cr-00933-2 — John J. Tharp, Jr., Judge. ____________________ ARGUED FEBRUARY 8, 2023 — DECIDED MARCH 9, 2023 ____________________ Before FLAUM, SCUDDER, and ST. EVE, Circuit Judges. FLAUM, Circuit Judge. Phillip Robinson appeals the district court’s application of a sentencing enhancement following a jury trial. Primarily, he raises the familiar challenge that the Constitution prohibits using acquitted conduct for sentencing purposes. He also argues that the district court’s factual ndings do not support its application of the enhancement. We a rm on both fronts. 2 No. 22-1472 I. Background In late 2019, Robinson agreed to let an acquaintance, Jose Solorzano, stay at his home in Chicago. Robinson apparently knew that Solorzano was there to sell cocaine; the two frequently exchanged coded text messages about potential deals. One day, Robinson drove to Indiana to pick up Solorzano after an ill-fated transaction had ended with Solorzano getting robbed. Robinson later texted Solorzano, “You should have taken me to watch your back.” Soon afterwards, Solorzano arranged a deal with an undercover officer. Robinson agreed to drive him, and upon their arrival, authorities approached the vehicle to arrest them. One officer said that, during the arrest, he saw his colleague pull a handgun from Robinson’s waistband. The gun was loaded. In addition, the officer who interrogated Robinson following the arrest said that Robinson told him he had brought the gun to avoid being robbed. Robinson went to trial. The jury found him guilty of conspiring to possess cocaine with intent to distribute and of possessing a firearm as a felon. On the other hand, it found him not guilty of possessing a firearm “in furtherance of” the conspiracy. See 18 U.S.C. § 924(c)(1)(A). 1 The government then sought an enhancement to Robinson’s sentence for the felonin-possession conviction on the grounds that he possessed a firearm “in connection with” the cocaine conspiracy. See U.S.S.G. § 2K2.1(b)(6)(B). The court applied the enhancement over Robinson’s objection, and Robinson appealed. 1 The jury also found Robinson not guilty of possessing cocaine with intent to distribute. 3 No. 22-1472 II. Discussion Robinson first contends that the district court’s use of acquitted conduct to enhance his sentence violated his constitutional rights. Second, he argues that the district court did not make sufficient factual findings to apply the enhancement. Use of Acquitted Conduct We review a defendant’s constitutional challenge to his sentence de novo. United States v. Castro-Aguirre, 983 F.3d 927, 942 (7th Cir. 2020). Robinson objects to the district court’s conclusion during sentencing that he possessed a firearm “in connection with” the cocaine conspiracy. See U.S.S.G. § 2K2.1(b)(6)(B). The jury had already found him not guilty of possessing a firearm “in furtherance of” the conspiracy. See 18 U.S.C. § 924(c)(1)(A). According to Robinson, the Constitution does not permit the district court’s use of acquitted conduct for sentencing purposes. The Supreme Court says otherwise. In United States v. Watts, it endorsed this practice “so long as [the acquitted] conduct has been proved by a preponderance of the evidence.” 519 U.S. 148, 155–57 (1997). 2 Time and again, we have relied on Watts to reject the same argument Robinson raises now. See, e.g., United States v. Jones, 56 F.4th 455, 514 (7th Cir. 2022); 2 Even assuming Watts is best read as confined to the Fifth Amendment’s Double Jeopardy Clause, see United States v. Booker, 543 U.S. 220, 240 & n.4 (2005), litigants relying on a different constitutional provision must “construct an argument” that does not “war with the logic of Watts and ‘miss[] the distinction between elements of an offense and facts relevant to sentencing.’” United States v. Waltower, 643 F.3d 572, 577 n.2 (7th Cir. 2011) (alteration in original) (quoting United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005)). 4 No. 22-1472 United States v. Gan, 54 F.4th 467, 482–83 (7th Cir. 2022); United States v. Bravo, 26 F.4th 387, 399 (7th Cir. 2022); United States v. McClinton, 23 F.4th 732, 735 (7th Cir. 2022). None of the cases Robinson cites convinces us to change course. To be sure, the Supreme Court may someday revisit Watts. See McClinton, 23 F.4th at 735. The most we can offer under currently controlling precedent, however, is that Robinson has preserved his argument for further review. Findings Supporting Enhancement Robinson next argues that the district court did not make sufficient factual findings to apply the enhancement. Again, the court had to determine whether Robinson possessed a firearm “in connection with” the conspiracy to possess cocaine with intent to distribute. See U.S.S.G. § 2K2.1(b)(6)(B); see also id., cmt. n.14(A) (describing the inquiry as whether “the firearm … facilitated, or had the potential of facilitating,” the cocaine conspiracy). We review for clear error. United States v. Clinton, 825 F.3d 809, 811 (7th Cir. 2016). 3 Although this standard is lenient, the district court must provide enough detail for us to “know what [it] thought” about the facts supporting the enhancement. See United States v. Briggs, 919 F.3d 1030, 1033 (7th Cir. 2019). If the court’s findings do not illuminate a link between the gun and the drug felony, we will remand. See Clinton, 825 F.3d at 813 (“[W]e have essentially no fact findings at all by the district court relevant to this issue.”); Briggs, 919 F.3d 3 The parties dispute whether Robinson forfeited this issue; if he did, plain-error review would apply. United States v. Foy, 50 F.4th 616, 622 (7th Cir. 2022). We need not resolve this disagreement because Robinson’s challenge would fail even if he preserved it. 5 No. 22-1472 at 1032 (“[T]he district [court] never made any findings about how Briggs’s felony cocaine possession was connected to his firearms.” (emphasis omitted)). Here, the district court observed that “Robinson volunteered to provide security for … Solorzano after Solorzano was robbed” in Indiana. The court also noted that, on the day Robinson drove Solorzano to the prospective drug deal with the undercover officer, he had a loaded “firearm on his person.” It surmised that Robinson had brought the gun “to provide assurance that the transaction would take place on the terms expected”—that is, to avoid “being robbed.” This reasoning is far from clear error. We have no doubt about the district court’s rationale for connecting the gun to the cocaine conspiracy, and the record supports its findings. Application of the enhancement was thus appropriate. III. Conclusion For these reasons, we AFFIRM the district court’s decision.
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