NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 19-2725 _______________

UNITED STATES OF AMERICA

v.

GILBERT ROBINSON, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4:03-cr-00121-001) District Judge: Honorable John E. Jones III _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on April 24, 2020

Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges

(Filed: May 12, 2020) _______________

OPINION * _______________

BIBAS, Circuit Judge.

When nothing has changed since a defendant’s original sentencing, a court does not

abuse its discretion by sticking with its initial sentence.

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. In 2004, Gilbert Robinson pleaded guilty to conspiring to sell 50 or more grams of crack

cocaine. In his plea agreement, Robinson and the Government agreed to recommend that

the District Court compute his Sentencing Guidelines range based on 35.7 grams. Consid-

ering the stipulated drug quantity and the sentencing factors in

(a), the

court sentenced Robinson to the bottom of his Guidelines range: 292 months’ imprison-

ment followed by eight years’ supervised release.

The First Step Act of 2018 later authorized federal judges to resentence defendants with

drug convictions if another law had raised the drug quantities needed to trigger certain

minimum and maximum sentences.

(b),

, 5222.

That other law, the Fair Sentencing Act of 2010, had raised the amount of crack cocaine

required to trigger one statutory sentencing range from 5 to 28 grams and another from 50

to 280 grams.

(a),

, 2372 (amending

(b)(1)(A)(iii), (B) (iii)).

Robinson moved for resentencing under the First Step Act. But the District Court found

him ineligible for relief because the drug quantities specified in his indictment and plea

agreement still exceeded the new, 28-gram threshold and triggered the same statutory pen-

alty. The District Court also noted that even if Robinson were eligible for relief, it would

have exercised its discretion to impose the same sentence because his Guidelines range

would be the same.

Robinson now timely appeals this denial. The District Court had jurisdiction under

and 3582(c)(1). We have jurisdiction under

and

(a). We review the District Court’s legal determinations de novo. United States v.

F.3d 527, 531 (3d Cir. 2012). We review its decision to deny the motion for a

reduced sentence for abuse of discretion. United States v. Mateo,

(3d

Cir. 2009).

We need not decide whether the District Court erred in finding Robinson ineligible for

relief. The court concluded that, in any event, it would have applied the same Guidelines

range at resentencing. Because the drug quantity charged in the indictment (at least 50

grams) and the quantity stipulated in the plea agreement (35.7 grams) both exceeded the

Fair Sentencing Act’s 28-gram threshold, his statutory sentencing range stayed the same

under

(b)(1)(B)(iii). So did his career-offender status under U.S.S.G.

§ 4B1.1. Thus, the same ten-year mandatory minimum, life maximum, and Guidelines

range of 292 to 325 months still apply. And his 292-month sentence is still at the bottom

of the range.

Robinson moved to reduce his sentence because he thought that the Fair Sentencing

Act had reduced his statutory sentencing range. But it did not. And he pointed to nothing

else that had changed since his original sentencing. So the District Court did not err in

declining to reconsider the other § 3553(a) factors.

Finally, Robinson argues that the District Court should have considered his

postsentencing conduct as proof of rehabilitation under Pepper v. United States,

(2011). Though Pepper held that a defendant’s postsentencing conduct “may be

highly relevant to several § 3553(a) factors,” it also held that courts need not consider this

at resentencing. Id. at 491, 504–05. In any case, Robinson failed to present any evidence

of his good behavior in prison for the District Court to consider. Thus, the court did not

3 abuse its discretion in denying his motion for resentencing and sticking with its initial sen-

tence. We will affirm.

4