United States v. Robert Rogers ( 2014 )

Case: 13-10430 Document: 00512492737 Page: 1 Date Filed: 01/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10430 January 8, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ROBERT ARTHUR ROGERS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-210-1
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Robert Arthur Rogers challenges his 210-month sentence following his
guilty-plea conviction for possession with intent to distribute
methamphetamine. For sentencing purposes, Rogers was held accountable for
over 1.8 kilograms of methamphetamine. Based on an offense level of 37 and
a criminal history category of I, his advisory sentencing range under the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-10430
Sentencing Guidelines was 210 to 262 months’ imprisonment. As noted, he
was sentenced at the bottom of the range.
Although Rogers contends the district court erred in increasing his
offense level for a leadership role, he offers nothing to support this assertion.
Accordingly, the issue is deemed abandoned. See FED. R. APP. P. 28(a)(8);
United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006) (citations omitted).
Rogers also contends his sentence is unconstitutionally excessive
because it is grossly disproportionate to the severity of his crime. Because
Rogers did not object to his sentence in district court, review is limited to plain
error. See United States v. Chon, 713 F.3d 812, 823 (5th Cir. 2013). Under the
plain-error standard, Rogers must show a clear or obvious forfeited error that
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error,
but should do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. See id.Rogers’ claim fails because there is no clear or obvious error. Along that
line, the Eighth Amendment prohibits a sentence that is grossly
disproportionate to the severity of the crime for which it is imposed. Solem v.
Helm, 463 U.S. 277, 289-90 (1983). The scope of review for Eighth Amendment
proportionality challenges is narrow. United States v. Thomas, 627 F.3d 146,
160 (5th Cir. 2010) (citation omitted). The first step is a threshold comparison
between the gravity of the offense and the severity of the sentence. Id. (citation
omitted). If the reviewing court concludes the sentence is not grossly
disproportionate to the gravity of the offense, then the inquiry is complete. Id.Only if the reviewing court determines the sentence is grossly disproportionate
to the offense will the court proceed to the second step, a comparison between
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No. 13-10430
the defendant’s sentence with sentences imposed for similar crimes in the same
jurisdiction, and in other jurisdictions. Id. (citation omitted).
This court has identified Rummel v. Estelle, 445 U.S. 263 (1980), as a
“benchmark” case in a proportionality analysis. See United States v. Gonzales,
121 F.3d 928, 943 (5th Cir. 1997), abrogated on other grounds by United States
v. O’Brien, 560 U.S. 218 (2010), as recognized in United States v. Johnson, 398
F. App’x 964, 968 (5th Cir. 2010). In Rummel, the Supreme Court upheld a life
sentence for an offender’s third nonviolent-felony offense of obtaining money
by false pretenses. 445 U.S. at 285. In Gonzales, this court determined a non-
habitual offender’s 30-year sentence for using or carrying a firearm in
furtherance of a drug-trafficking offense was not excessive when measured
against Rummel’s benchmark, because the gravity of the offense was greater
and the penalty less severe than in Rummel. 121 F.3d at 943-44. In Harmelin
v. Michigan, the Supreme Court affirmed, in the light of Rummel, a life
sentence for possession of a large quantity of cocaine. 501 U.S. 957, 961-62,
996 (1991).
Using Rummel and its progeny as benchmarks, Rogers’ 210-month
sentence is not grossly disproportionate to his offense. The gravity of Rogers’
offense is greater, and the sentence less severe, than in Rummel. See, e.g.,
Gonzales, 121 F.3d at 943-44. Because Rogers has not shown his sentence is
grossly disproportionate to his offense, the inquiry is complete.
AFFIRMED.
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