United States Court of Appeals
Fifth Circuit
F I L E D
In the October 6, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-10761
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RICHARD JAMES ROACH,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 2:05-CR-2-ALL
______________________________
Before JONES, Chief Judge, and ceived after pleading guilty of being an addict
SMITH and STEWART, Circuit Judges. or unlawful user of a controlled substance in
possession of a firearm. The district court cal-
JERRY E. SMITH, Circuit Judge:* culated the appropriate offense level under the
sentencing guidelines, upwardlydeparted from
Richard Roach appeals the sentence he re- that level, then and ultimately deviated from
the guidelines, sentencing Roach to sixty
months of imprisonment and three years of su-
* pervised release. Roach argues that his sen-
Pursuant to 5TH CIR. R. 47.5, the court has de-
tence violates the Constitution and is unrea-
termined that this opinion should not be published
and is not precedent except under the limited cir- sonable. We affirm.
cumstances set forth in 5TH CIR. R. 47.5.4.
I. which he pleaded guilty is unconstitutional
Roach was a district attorney when he because it violates equal protection and due
pleaded guilty to one count of possession of a process principles.
firearm by a drug user or addict. He became
addicted to and used methamphetamine in the A.
final months of 2004. He was arrested in Roach contends that the decision to deviate
January 2005 carrying a briefcase containing from the sentencing guidelines violates the
two firearms, in addition to which he also pos- Constitution’s ex post facto and due process
sessed thirty-three other guns. provisions. He notes that on the date that he
committed this offense, the then-mandatory
The district court calculated Roach’s sen- guidelines set the maximum statutorysentence.
tence by starting with the base offense level of Though in United States v. Booker, 543 U.S.
14 pursuant to U.S.S.G. § 2K2.1(a)(6). The 220 (2005), the Court held that the guidelines
court enhanced the base level six points for are only advisory, Roach avers that the reme-
possessing thirty-five firearms pursuant to dial portion of Booker’s holdingSSi.e., the
§ 2K2.1(b)(1)(C), and two points for abusing portion rendering the guidelines nonman-
a position of trust pursuant to § 2K2.1(b)(5). datorySSmay not be applied to his case with-
The level was decreased three points because out violating the ex post facto and due process
Roach had accepted responsibility. provisions of the Constitution. Also, he ar-
gues that facts increasing his sentence must be
After calculating the correct offense level, proven to a jury or admitted, despite the fact
the court departed two points upward for that after Booker, judges are entitled to find
abuse of a position of trust pursuant to sentencing facts by a preponderance of the
§ 5K2.0(a)(3), resulting in a final offense level evidence. See United States v. Mares, 402
of 21 and a guideline range of 37-46 months. F.3d 511, 517 (5th Cir.), cert. denied, 126 S.
Finding that the nonmandatory guidelines Ct. 43 (2005).
range did not adequately address the serious-
ness of the offense, the court imposed a non- Fifth Circuit precedent rules out Roach’s
guideline sentence of 60 months of imprison- position, because we have consistently fol-
ment, 14 months above the final offense level. lowed Justice Breyer’s instruction in Booker
that “we must apply today’s holdingsSSboth
Roach initially appealed his sentence on the Sixth Amendment holding and our reme-
seven grounds, then abandoned his third and dial interpretation of the Sentencing ActSSto
fourth grounds. We address each of the re- all cases on direct review.” Booker, 543 U.S.
maining grounds individually. at 224. Accord United States v. Austin, 432
F.3d 598, 599 (5th Cir. 2005); United States v.
II. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).
Roach challenges his sentence on two con-
stitutional grounds. First, he argues that the Our decision in Austin deals with the same
district court violated the ex post facto and situation we encounter here: Sentences based
due process provisions by treating the sentenc- on advisory guidelines do not implicate the due
ing guidelines as merely advisory and not process or ex post facto protections. Id. at
mandatory. Second, he argues that the law to 599. Austin also made plain that “the specific
2
division of labor between judge and jury” does commit plain error by enforcing the statute. A
not affect whether a sentence imposed after drug user does not have a fundamental right to
Booker is unconstitutional. Id. at 600. keep and bear arms, so § 922(g)(3) must only
survive rational basis review, and it does.
B.
Roach argues that 18 U.S.C. § 922- “[T]he Second Amendment’s right to bear
(g)(3)SSthe law under which he was convict- arms is subject to ‘limited, narrowly tailored
edSSis unconstitutional because it violates the specific exceptions or restrictions for particular
Constitution’s Equal Protection Clause and cases that are reasonable and not inconsistent
substantive due process. That provision with the right of Americans generally to indi-
states the following: vidually keep and bear their private arms as
historically understood in this country.’”
It shall be unlawful for any person . . . who United States v. Patterson, 431 F.3d 832, 835
is an unlawful user of or addicted to any (5th Cir. 2005) (quoting United States v. Em-
controlled substance (as defined in section erson, 270 F.3d 203, 261 (5th Cir. 2001)).
102 of the Controlled Substances Act (21 Though we have not specifically reached the
U.S.C. 802)) . . . to ship or transport in in- question whether § 922(g)(3) violates equal
terstate or foreign commerce, or possess in protection or substantive due process, we have
or affecting commerce, any firearm or am- held that several of § 922(g)’s other specific
munition; or to receive any firearm or am- exceptions to the Second Amendment are con-
munition which has been shipped or trans- stitutional.1
ported in interstate or foreign commerce.
We have specifically discussed the consti-
Roach argues that the right to keep and bear tutionality of § 922(g)(3) in Patterson, in
arms is fundamental, requiring that we apply which defendant challenged § 922(g)(3) as
strict scrutiny in determining whether a law unconstitutionally vague and overbroad. We
infringing on the right violates equal protection rejected that position, explicitly affirming
or due process. § 922(g)(3) as a constitutional exception to the
Second Amendment:
We review Roach’s challenge to the consti-
tutionality of § 922(g)(3) for plain error, Prohibiting unlawful drug users from pos-
because Roach did not challenge § 922(g)(3)’s sessing firearms is not inconsistent with the
constitutionality in the district court. United
States v. Coil, 442 F.3d 912, 915-16 (5th Cir. 1
2006) (citing United States v. Knowles, 29 E.g., Emerson, 279 F.3d at 261 (felons);
F.3d 947, 950 51 (5th Cir. 1994)). “A convic- United States v. Everist, 368 F.3d 517, 519 (5th
Cir. 2004) (individuals subject to domestic re-
tion based upon an unconstitutional statute is
straining orders). For similar authority from other
both ‘plain’ and ‘error.’” Id. at 916 (citing circuits, see United States v. Baker, 197 F.3d 211,
Knowles, 29 F.3d at 951). 216 (6th Cir. 1999) (holding that persons subject to
domestic violence protective orders are not a
Section 922(g)(3) does not violate the Con- suspect class and that the statute does not implicate
stitution’s equal protection or substantive due a fundamental right); United States v. McKenzie,
process provisions, so the district court did not 99 F.3d 813, 817-18 (7th Cir. 1996) (same, for
felons in possession).
3
right to bear arms guaranteed by the Sec- this interest.3 Thus, Roach was convicted un-
ond Amendment as construed in Emerson der a constitutional statute, so his second
and Everist. Like the classes of criminals in ground for appeal fails.
Emerson and Everist, unlawful users of
controlled substances pose a risk to society III.
if permitted to bear arms. Roach presents three questions regarding
the sentence itself. He challenges the upward
Patterson, 431 F.3d at 836. departure, the reasons for imposing a non-
guideline sentence, and the extent of the devi-
Patterson’s conclusion is sufficient to de- ation from the sentence calculated under the
feat Roach’s equal protection and due process guidelines.
claims. Because drug users and addicts have
no fundamental right to bear arms, § 922(g)(3) Even after Booker, we review the district
does not interfere with a fundamental right, so court’s application of the guidelines de novo.
we do not apply strict scrutiny.2 See United States v. Villegas, 404 F.3d 355,
359 (5th Cir. 2005). We accept the district
Though he tries, Roach cannot rely on Em- court’s findings of fact related to sentencing
erson to establish that Second Amendment unless they are clearly erroneous. United
rights are fundamental, because we foreclosed States v. Creech, 408 F.3d 264, 270 n. 2 (5th
that notion in Darrington, 351 F.3d at 635: Cir.), cert. denied, 126 S. Ct. 777 (2005).
Again, Emerson is a carefully and labori- The district court ultimately deviated from
ously crafted opinion, and if it intended to the guidelines, so Roach’s sentence is a non-
recognize that the individual right to keep guideline sentence.4 We review non-guideline
and bear arms is a ‘fundamental right,’ in sentences for reasonableness. Smith, 440 F.3d
the sense that restrictions on this right are at 706. “Though flexible, the reasonableness
subject to ‘strict scrutiny’ by the courts and standard is not unbounded. Both a district
require a ‘compelling state interest,’ it
would have used these constitutional terms
of art. 3
See Huddleston v. United States, 415 U.S.
814, 824 (1974) (stating that Congress’s purpose
Under a rational basis review, § 922(g)(3) is in enacting federal gun control legislation was to
constitutional, because Congress has an inter- keep “lethal weapons our of the hands of criminals,
est in keeping guns out of the hands of drug drug addicts, mentally disordered persons, juve-
users, and § 922(g)(3) is rationally related to niles, and other persons whose possession of them
is too high a price in danger for us to allow”).
4
United States v. Smith, 440 F.3d 704, 706 n.1
(5th Cir. 2006) (“We use the terms ‘deviate’ and
‘deviation’ to describe a non-Guideline sentence,
2
See United States v. Darrington, 351 F.3d which is not the result of a Guidelines-authorized
632, 634 35 (5th Cir. 2003) (holding that the fel- upward or downward departure. In United States
on-in-possession statute, § 922(g)(1), does not vio- v. Mares, we adopted the phrase ‘non-Guideline
late equal protection, because a felon does not have sentence’ to express this distinction. 402 F.3d 511,
a fundamental right to keep and bear arms). 519 n.7 (5th Cir. 2005).”).
4
court’s post-Booker sentencing discretion and two cases in which this court noted that a
the reasonableness inquiry on appeal must be sentencing court cannot consider a defendant’s
guided by the sentencing considerations set socio-economic status. See United States v.
forth in 18 U.S.C. § 3553(a).” Id. (citing Hatchett, 923 F.2d 369, 374 (5th Cir. 1991);
Booker, 125 S. Ct. at 766.). Though we ulti- United States v. Stout, 32 F.3d 901, 903 04
mately review the sentence for reasonableness, (5th Cir. 1994). Other decisions of this court
we still must review the District Court’s up- lend some support to Roach’s position. See
ward departure, because “[w]ithout a proper- United States v. Brunson, 915 F.2d 942, 943
ly-calculated Guideline range, we cannot en- (5th Cir. 1990); United States v. Harrington,
sure that the disparity between [the] sentence 82 F.3d 83, 87 (5th Cir. 1996). In Brunson,
and the Guideline range is warranted.” Id. at we recognized, though ultimately ignored
706 n.2. Thus, we begin by reviewing the under a plain error review, the merit of an as-
two-point upward departure. sistant district attorney’s argument that the
district court should have used U.S.S.G.
A. § 3B1.3, and not an upward departure, where
“In evaluating both a decision to depart and the assistant district attorney had abused his
the extent of the departure, we review for public position. See Brunson, 915 F.2d at
‘abuse of discretion.’” Id. at 707 (citing Unit- 943-44. In Harrington, we stated that an at-
ed States v. Saldana, 427 F.3d 298, 308 (5th torney’s position as an officer of the court was
Cir.), cert. denied, 126 S. Ct. 810 (2005), and not grounds for an upward departure. See
cert. denied, 126 S. Ct. 1097 (2006)). The Harrington, 82 F.3d at 87.
district court provided reasons for the depar-
ture, stating that The district court’s decision in Roach’s
case, however, is different from those in Hat-
the guidelines do not adequately address a chett, Stout, Brunson, and Harrington. Here
public official betraying the public trust and the court did not upwardly depart merely be-
the seriousness of the offense. The Court cause of Roach’s socio-economic status or po-
finds the defendant had 2 loaded guns and sition in public office, but because he betrayed
a stun gun in his briefcase in the Court- the public trust. In United States v. Wade, 931
room, 2 loaded guns and a stun gun in his F.2d 300, 307 (5th Cir. 1991), we affirmed an
office and possessed a total of 35 guns. upward departure despite the fact the district
Drug use is a course of conduct that is out court considered the defendant’s position and
of bounds and unscrupulous. A 2-level his abuse of that position. There, we explained
increase is added for abuse of trust. that
Roach claims that the court based its up- in certain cases, law enforcement experi-
ward departure on impermissible factors. We ence is an acceptable reason to depart up-
disagree. wards. In the instant case, Wade abused
his position as sheriff to further his drug
Roach’s first complaint is that considering manufacturing conspiracy. For example,
his position as a public official and his betrayal Wade passed along information regarding
of the public trust is an impermissible reason future investigations to coconspirators;
for departing from the guidelines. He cites seized drug manufacturing equipment that
5
was to be used as evidence in another drug The court found that Roach’s abuse of the
case; convinced the Hardin County Sheriff public trust made his offense more serious than
to release Guillory, a coconspirator, from the guidelines, without an upward departure,
jail; had Guillory released by the Houston permit.
Police Department following an arrest; re-
cruited Duhon, another coconspirator, to Roach advances various theories to try to
be a deputy sheriff; removed meth oil from exclude the findings of fact underlying the dis-
the Sheriff’s office; and had Baker’s parole trict court’s decision. His argument that he
supervision transferred to Orange County. was authorized to possess guns as a law en-
Given Wade’s egregious behavior in abus- forcement officer is of no consequence, be-
ing his position as sheriff, the district judge cause the grounds for an upward departure do
reasonably relied upon his position as sher- not have to be illegal or criminal conduct.
iff as a factor in departing upwards. United States v. Arce, 118 F.3d 335, 340-41
(5th Cir. 1997). Also, although Roach cor-
Id. rectly notes that drug use is not usually a rea-
son for upward departure, United States v.
Roach’s abuse of his position as district at- Williams, 937 F.2d 979, 983 (5th Cir. 1991),
torney mirrors Wade’s abuse of his position as here the drug use was extraordinary: The
sheriff. Roach used illegal drugs while prose- district court explained that Roach prosecuted
cuting others for the same behavior, and he people for drug use while using drugs. In sum,
consistently abused his office. For instance, a the district court did not abuse its discretion in
Texas state trooper, Jason Henderson, testified calculating the guidelines sentence using an
at the sentencing hearing that Roach had tried upward departure.
to bribe him and another trooper to work for
Roach by offering them a share of seized B.
funds. Thus, just as this court permitted an Roach argues that the fourteen-month devi-
upward departure in Wade based on egregious ation from the calculated guideline range is
abuse of a public office, the district court did unreasonable because (1) the reasons cited by
not err by considering Roach’s betrayal of the district court for deviation are not permis-
public trust. sible, and (2) the evidence fails to establish any
legal basis for the deviation. Also, Roach
As a second argument, Roach claims that urges that the extent of the deviation is unrea-
the district court impermissiblyfactored in “the sonable.
seriousness of the offense.” He objects to this
factor, because the “seriousness” of his crime The court, after calculating the guideline
is already accounted for in the base level of the sentence, deviated from the guidelines and im-
offense and because “seriousness” is not a posed a discretionary sentence because “the
sufficiently specific reason. guidelines do not adequately address the con-
duct in this case” in light of the fact that Roach
The district court, however, provided a spe- engaged in “a course of out of bounds and
cific finding that makes Roach’s offense more unscrupulous behavior” that included
serious than the offense specified in the guide- (1) carrying and possessing loaded guns as a
lines, and the finding is not clearly erroneous. district attorney and drug addict and (2) be-
6
havior involving office staff and Department of court reasonably relied on the PSR and did not
Public Safety officers. We review the district consider impermissible factors or facts when
court’s statement of reasons for deviating deviating from the guidelines.
to determine whether, as a matter of sub- The stated reasons for deviating demon-
stance, the sentencing factors in section strate that the court considered § 3553(a)’s
3553(a) support the sentence . . . . A factors. Section 3553(a)(1) instructs the court
non-Guideline sentence unreasonably fails to consider the nature and extent of the of-
to reflect the statutory sentencing factors fense and the position of the defendant, and
where it (1) does not account for a factor the district court’s reason for departing does
that should have received significant just that: It specifically notes why the nature
weight, (2) gives significant weight to an of the offense is egregious. Also, § 3553(a)-
irrelevant or improper factor, or (3) repre- (2)(A) instructs the court to consider whether
sents a clear error of judgment in balancing the sentence reflects the seriousness of the
the sentencing factors. crime. Here, the court deviated specifically
because the guideline sentence did not reflect
Smith, 440 F.3d at 707-08. the seriousness of the crime; the court cor-
rectly considered § 3553(a)’s factors.
Roach claims that his position as district
attorney and his use of drugs are impermissible Roach argues that the court did not specifi-
factors, but, as we have explained, the district cally indicate what factors in § 3553(a) it con-
court did not err in considering them. Roach sidered in assessing the deviation. Yet, a
further maintains that his behavior involving court need not recite all the factors by going
the office staff and Department of Public Safe- down a checklist. Here the statement of rea-
ty officers was not illegal, and the evidence of- sons is sufficient, because it enables review of
fered as proof of that behavior was not veri- the sentence. Smith, 440 F.3d at 707.
fiable or reliable.
The extent of the deviation is Roach’s final
We have already noted that conduct does ground for appeal. The deviation is reason-
not need to be illegal to be considered in de- able, so Roach cannot prevail on that claim.
viations, so Roach’s objection on that ground The sentence is only fourteen months more
fails. See United States v. Arce, 118 F.3d 335, than is allowed under the guidelines; we have
340-41 (5th Cir. 1997). His claim that allega- consistently upheld sentences of greater
tions about his behavior were not verifiable or lengths in analogous cases. See, e.g., Smith,
reliable also is without merit, because the alle- 417 F.3d at 491-93. “When the district court
gations are contained in the presentence report imposes a non-Guideline sentence, it ‘must
(“PSR”), and PSR’s generally bear sufficient more thoroughly articulate its reasons’ for do-
indicia of reliability to be considered by a dis- ing so, and the greater the difference between
trict court; the defendant bears the burden of the sentence and the Guideline range, ‘the
showing the information is untrue or unreliable more compelling the justification based on fac-
if the court relies on it. United States v. Rome, tors in section 3553(a) must be.’” United
207 F.3d 251, 254 (5th Cir. 2000). Roach did States v. Guidry, 2006 U.S. App. LEXIS
not present rebuttal evidence, and the district 22038, at *5 (5th Cir. Aug. 23, 2006) (quoting
7
Smith, 440 F.3d at 707). Roach engaged in
particularly egregious abuses of his office, so
sixty months is not unreasonable based on the
facts, and the district court’s statement of rea-
sons is adequate under our prevailing stan-
dards.
The judgment of sentence is AFFIRMED.
8