United States v. Roberts

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30868
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CHARLES ROBERTS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:05-CR-10007
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
John Charles Roberts pleaded guilty to one count of
deprivation of rights and one count of making a false statement
to the FBI. He now appeals his 72-month guideline sentence.
Roberts argues that his sentence is unreasonable because the
district court imposed a sentence that it felt was harsh without
conducting an extensive analysis of the 18 U.S.C. § 3553(a)
factors. He also argues that the presumption that such a
sentence is reasonable violates United States v. Booker, 543 U.S.
220 (2006).

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No. 06-30868
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1 Roberts argued to the district court that U.S.S.G. § 2A3.4(a)(2)
should apply, not § 2A3.1. The court applied § 2A3.1. On appeal, Roberts
mentions this issue only in one sentence, in his summary of the argument,
stating that the court erred in applying § 2A3.1. Consequently, he has waived
the argument. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000).
Under this court’s precedent, a sentence within a properly-
calculated guidelines range, like the one here, is presumptively
reasonable, United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir. 2005), and Roberts hasn’t overcome that presumption.
Because an intervening Supreme Court case explicitly or
implicitly overruling prior precedent is required to alter this
court’s precedent, the grant of certiorari in Rita v. United
States, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754) has no
impact on the presumption, see United States v. Short, 181 F.3d
620, 624 (5th Cir. 1999), as Roberts recognizes.
In any event, the record shows that the district court
thoroughly considered the § 3553(a) factors and determined that a
deviation therefrom was not warranted by the facts of the case,
even though in its sentencing memorandum it devoted little space
explicitly to the § 3553(a) factors. Consequently, Roberts has
not demonstrated that his sentence is unreasonable. See Mares,
402 F.3d at 519-20.1
AFFIRMED.

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