United States v. Roach

United States Court of Appeals
Fifth Circuit
F I L E D
October 6, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
SMITH and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Richard Roach appeals the sentence he re-
ceived after pleading guilty of being an addict
or unlawful user of a controlled substance in
possession of a firearm. The district court cal-
culated the appropriate offense level under the
sentencing guidelines, upwardlydeparted from
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-
tence violates the Constitution and is unrea-
sonable. We affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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I.
Roach was a district attorney when he
pleaded guilty to one count of possession of a
firearm by a drug user or addict. He became
addicted to and used methamphetamine in the
final months of 2004. He was arrested in
January 2005 carrying a briefcase containing
two firearms, in addition to which he also pos-
sessed thirty-three other guns.
The district court calculated Roach’s sen-
tence by starting with the base offense level of
14 pursuant to U.S.S.G. § 2K2.1(a)(6). The
court enhanced the base level six points for
possessing thirty-five firearms pursuant to
§ 2K2.1(b)(1)(C), and two points for abusing
a position of trust pursuant to § 2K2.1(b)(5).
The level was decreased three points because
Roach had accepted responsibility.
After calculating the correct offense level,
the court departed two points upward for
abuse of a position of trust pursuant to
§ 5K2.0(a)(3), resulting in a final offense level
of 21 and a guideline range of 37-46 months.
Finding that the nonmandatory guidelines
range did not adequately address the serious-
ness of the offense, the court imposed a non-
guideline sentence of 60 months of imprison-
ment, 14 months above the final offense level.
Roach initially appealed his sentence on
seven grounds, then abandoned his third and
fourth grounds. We address each of the re-
maining grounds individually.
II.
Roach challenges his sentence on two con-
stitutional grounds. First, he argues that the
district court violated the ex post facto and
due process provisions by treating the sentenc-
ing guidelines as merely advisory and not
mandatory. Second, he argues that the law to
which he pleaded guilty is unconstitutional
because it violates equal protection and due
process principles.
A.
Roach contends that the decision to deviate
from the sentencing guidelines violates the
Constitution’s ex post facto and due process
provisions. He notes that on the date that he
committed this offense, the then-mandatory
guidelines set the maximumstatutorysentence.
Though in United States v. Booker, 543 U.S.
220 (2005), the Court held that the guidelines
are only advisory, Roach avers that the reme-
dial portion of Booker’s holdingSSi.e., the
portion rendering the guidelines nonman-
datorySSmay not be applied to his case with-
out violating the ex post facto and due process
provisions of the Constitution. Also, he ar-
gues that facts increasing his sentence must be
proven to a jury or admitted, despite the fact
that after Booker, judges are entitled to find
sentencing facts by a preponderance of the
evidence. See United States v. Mares, 402
F.3d 511, 517 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005).
Fifth Circuit precedent rules out Roach’s
position, because we have consistently fol-
lowed Justice Breyer’s instruction in Booker
that “we must apply today’s holdingsSSboth
the Sixth Amendment holding and our reme-
dial interpretation of the Sentencing ActSSto
all cases on direct review.” Booker, 543 U.S.
at 224. Accord United States v. Austin, 432
F.3d 598, 599 (5th Cir. 2005); United States v.
Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).
Our decision in Austin deals with the same
situation we encounter here: Sentences based
on advisory guidelines do not implicate the due
process or ex post facto protections. Id. at
599. Austin also made plain that “the specific

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division of labor between judge and jury” does
not affect whether a sentence imposed after
Booker is unconstitutional. Id. at 600.
B.
Roach argues that 18 U.S.C. § 922-
(g)(3)SSthe law under which he was convict-
edSSis unconstitutional because it violates the
Constitution’s Equal Protection Clause and
substantive due process. That provision
states the following:
It shall be unlawful for any person . . . who
is an unlawful user of or addicted to any
controlled substance (as defined in section
102 of the Controlled Substances Act (21
U.S.C. 802)) . . . to ship or transport in in-
terstate or foreign commerce, or possess in
or affecting commerce, any firearm or am-
munition; or to receive any firearm or am-
munition which has been shipped or trans-
ported in interstate or foreign commerce.
Roach argues that the right to keep and bear
arms is fundamental, requiring that we apply
strict scrutiny in determining whether a law
infringing on the right violates equalprotection
or due process.
We review Roach’s challenge to the consti-
tutionality of § 922(g)(3) for plain error,
because Roach did not challenge § 922(g)(3)’s
constitutionality in the district court. United
States v. Coil, 442 F.3d 912, 915-16 (5th Cir.
2006) (citing United States v. Knowles, 29
F.3d 947, 950 51 (5th Cir. 1994)). “A convic-
tion based upon an unconstitutional statute is
both ‘plain’ and ‘error.’” Id. at 916 (citing
Knowles, 29 F.3d at 951).
Section 922(g)(3) does not violate the Con-
stitution’s equal protection or substantive due
process provisions, so the district court did not
commit plain error by enforcing the statute. A
drug user does not have a fundamental right to
keep and bear arms, so § 922(g)(3) must only
survive rational basis review, and it does.
“[T]he Second Amendment’s right to bear
arms is subject to ‘limited, narrowly tailored
specific exceptions or restrictions for particular
cases that are reasonable and not inconsistent
with the right of Americans generally to indi-
vidually keep and bear their private arms as
historically understood in this country.’”
United States v. Patterson, 431 F.3d 832, 835
(5th Cir. 2005) (quoting United States v. Em-
erson, 270 F.3d 203, 261 (5th Cir. 2001)).
Though we have not specifically reached the
question whether § 922(g)(3) violates equal
protection or substantive due process, we have
held that several of § 922(g)’s other specific
exceptions to the Second Amendment are con-
stitutional.1
We have specifically discussed the consti-
tutionality of § 922(g)(3) in Patterson, in
which defendant challenged § 922(g)(3) as
unconstitutionally vague and overbroad. We
rejected that position, explicitly affirming
§ 922(g)(3) as a constitutional exception to the
Second Amendment:
Prohibiting unlawful drug users from pos-
sessing firearms is not inconsistent with the
1 E.g., Emerson, 279 F.3d at 261 (felons);
United States v. Everist, 368 F.3d 517, 519 (5th
Cir. 2004) (individuals subject to domestic re-
straining orders). For similar authority from other
circuits, see United States v. Baker, 197 F.3d 211,
216 (6th Cir. 1999) (holding that persons subject to
domestic violence protective orders are not a
suspect class and that the statute does not implicate
a fundamental right); United States v. McKenzie,
99 F.3d 813, 817-18 (7th Cir. 1996) (same, for
felons in possession).

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right to bear arms guaranteed by the Sec-
ond Amendment as construed in Emerson
and Everist. Like the classes of criminals in
Emerson and Everist, unlawful users of
controlled substances pose a risk to society
if permitted to bear arms.
Patterson, 431 F.3d at 836.
Patterson’s conclusion is sufficient to de-
feat Roach’s equal protection and due process
claims. Because drug users and addicts have
no fundamental right to bear arms, § 922(g)(3)
does not interfere with a fundamental right, so
we do not apply strict scrutiny.2
Though he tries, Roach cannot rely on Em-
erson to establish that Second Amendment
rights are fundamental, because we foreclosed
that notion in Darrington, 351 F.3d at 635:
Again, Emerson is a carefully and labori-
ously crafted opinion, and if it intended to
recognize that the individual right to keep
and bear arms is a ‘fundamental right,’ in
the sense that restrictions on this right are
subject to ‘strict scrutiny’ by the courts and
require a ‘compelling state interest,’ it
would have used these constitutional terms
of art.
Under a rational basis review, § 922(g)(3) is
constitutional, because Congress has an inter-
est in keeping guns out of the hands of drug
users, and § 922(g)(3) is rationally related to
this interest.3 Thus, Roach was convicted un-
der a constitutional statute, so his second
ground for appeal fails.
III.
Roach presents three questions regarding
the sentence itself. He challenges the upward
departure, the reasons for imposing a non-
guideline sentence, and the extent of the devi-
ation from the sentence calculated under the
guidelines.
Even after Booker, we review the district
court’s application of the guidelines de novo.
See United States v. Villegas, 404 F.3d 355,
359 (5th Cir. 2005). We accept the district
court’s findings of fact related to sentencing
unless they are clearly erroneous. United
States v. Creech, 408 F.3d 264, 270 n. 2 (5th
Cir.), cert. denied, 126 S. Ct. 777 (2005).
The district court ultimately deviated from
the guidelines, so Roach’s sentence is a non-
guideline sentence.4 We review non-guideline
sentences for reasonableness. Smith, 440 F.3d
at 706. “Though flexible, the reasonableness
standard is not unbounded. Both a district
2 See United States v. Darrington, 351 F.3d
632, 634 35 (5th Cir. 2003) (holding that the fel-
on-in-possession statute, § 922(g)(1), does not vio-
late equal protection, because a felon does not have
a fundamental right to keep and bear arms).
3 See Huddleston v. United States, 415 U.S.
814, 824 (1974) (stating that Congress’s purpose
in enacting federal gun control legislation was to
keep “lethal weapons our of the hands of criminals,
drug addicts, mentally disordered persons, juve-
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,
which is not the result of a Guidelines-authorized
upward or downward departure. In United States
v. Mares, we adopted the phrase ‘non-Guideline
sentence’ to express this distinction. 402 F.3d 511,
519 n.7 (5th Cir. 2005).”).

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court’s post-Booker sentencing discretion and
the reasonableness inquiry on appeal must be
guided by the sentencing considerations set
forth in 18 U.S.C. § 3553(a).” Id. (citing
Booker, 125 S. Ct. at 766.). Though we ulti-
mately review the sentence for reasonableness,
we still must review the District Court’s up-
ward departure, because “[w]ithout a proper-
ly-calculated Guideline range, we cannot en-
sure that the disparity between [the] sentence
and the Guideline range is warranted.” Id. at
706 n.2. Thus, we begin by reviewing the
two-point upward departure.
A.
“In evaluating both a decision to depart and
the extent of the departure, we review for
‘abuse of discretion.’” Id. at 707 (citing Unit-
ed States v. Saldana, 427 F.3d 298, 308 (5th
Cir.), cert. denied, 126 S. Ct. 810 (2005), and
cert. denied, 126 S. Ct. 1097 (2006)). The
district court provided reasons for the depar-
ture, stating that
the guidelines do not adequately address a
public official betraying the public trust and
the seriousness of the offense. The Court
finds the defendant had 2 loaded guns and
a stun gun in his briefcase in the Court-
room, 2 loaded guns and a stun gun in his
office and possessed a total of 35 guns.
Drug use is a course of conduct that is out
of bounds and unscrupulous. A 2-level
increase is added for abuse of trust.
Roach claims that the court based its up-
ward departure on impermissible factors. We
disagree.
Roach’s first complaint is that considering
his position as a public official and his betrayal
of the public trust is an impermissible reason
for departing from the guidelines. He cites
two cases in which this court noted that a
sentencing court cannot consider a defendant’s
socio-economic status. See United States v.
Hatchett, 923 F.2d 369, 374 (5th Cir. 1991);
United States v. Stout, 32 F.3d 901, 903 04
(5th Cir. 1994). Other decisions of this court
lend some support to Roach’s position. See
United States v. Brunson, 915 F.2d 942, 943
(5th Cir. 1990); United States v. Harrington,
82 F.3d 83, 87 (5th Cir. 1996). In Brunson,
we recognized, though ultimately ignored
under a plain error review, the merit of an as-
sistant district attorney’s argument that the
district court should have used U.S.S.G.
§ 3B1.3, and not an upward departure, where
the assistant district attorney had abused his
public position. See Brunson, 915 F.2d at
943-44. In Harrington, we stated that an at-
torney’s position as an officer of the court was
not grounds for an upward departure. See
Harrington, 82 F.3d at 87.
The district court’s decision in Roach’s
case, however, is different from those in Hat-
chett, Stout, Brunson, and Harrington. Here
the court did not upwardly depart merely be-
cause of Roach’s socio-economic status or po-
sition in public office, but because he betrayed
the public trust. In United States v. Wade, 931
F.2d 300, 307 (5th Cir. 1991), we affirmed an
upward departure despite the fact the district
court considered the defendant’s position and
his abuse of that position. There, we explained
that
in certain cases, law enforcement experi-
ence is an acceptable reason to depart up-
wards. In the instant case, Wade abused
his position as sheriff to further his drug
manufacturing conspiracy. For example,
Wade passed along information regarding
future investigations to coconspirators;
seized drug manufacturing equipment that

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was to be used as evidence in another drug
case; convinced the Hardin County Sheriff
to release Guillory, a coconspirator, from
jail; had Guillory released by the Houston
Police Department following an arrest; re-
cruited Duhon, another coconspirator, to
be a deputy sheriff; removed meth oil from
the Sheriff’s office; and had Baker’s parole
supervision transferred to Orange County.
Given Wade’s egregious behavior in abus-
ing his position as sheriff, the district judge
reasonably relied upon his position as sher-
iff as a factor in departing upwards.
Id.
Roach’s abuse of his position as district at-
torney mirrors Wade’s abuse of his position as
sheriff. Roach used illegal drugs while prose-
cuting others for the same behavior, and he
consistently abused his office. For instance, a
Texas state trooper, Jason Henderson, testified
at the sentencing hearing that Roach had tried
to bribe him and another trooper to work for
Roach by offering them a share of seized
funds. Thus, just as this court permitted an
upward departure in Wade based on egregious
abuse of a public office, the district court did
not err by considering Roach’s betrayal of
public trust.
As a second argument, Roach claims that
the district court impermissiblyfactored in “the
seriousness of the offense.” He objects to this
factor, because the “seriousness” of his crime
is already accounted for in the base level of the
offense and because “seriousness” is not a
sufficiently specific reason.
The district court, however, provided a spe-
cific finding that makes Roach’s offense more
serious than the offense specified in the guide-
lines, and the finding is not clearly erroneous.
The court found that Roach’s abuse of the
public trust made his offense more serious than
the guidelines, without an upward departure,
permit.
Roach advances various theories to try to
exclude the findings of fact underlying the dis-
trict court’s decision. His argument that he
was authorized to possess guns as a law en-
forcement officer is of no consequence, be-
cause the grounds for an upward departure do
not have to be illegal or criminal conduct.
United States v. Arce, 118 F.3d 335, 340-41
(5th Cir. 1997). Also, although Roach cor-
rectly notes that drug use is not usually a rea-
son for upward departure, United States v.
Williams, 937 F.2d 979, 983 (5th Cir. 1991),
here the drug use was extraordinary: The
district court explained that Roach prosecuted
people for drug use while using drugs. In sum,
the district court did not abuse its discretion in
calculating the guidelines sentence using an
upward departure.
B.
Roach argues that the fourteen-month devi-
ation from the calculated guideline range is
unreasonable because (1) the reasons cited by
the district court for deviation are not permis-
sible, and (2) the evidence fails to establish any
legal basis for the deviation. Also, Roach
urges that the extent of the deviation is unrea-
sonable.
The court, after calculating the guideline
sentence, deviated from the guidelines and im-
posed a discretionary sentence because “the
guidelines do not adequately address the con-
duct in this case” in light of the fact that Roach
engaged in “a course of out of bounds and
unscrupulous behavior” that included
(1) carrying and possessing loaded guns as a
district attorney and drug addict and (2) be-

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havior involving office staff and Department of
Public Safety officers. We review the district
court’s statement of reasons for deviating
to determine whether, as a matter of sub-
stance, the sentencing factors in section
3553(a) support the sentence . . . . A
non-Guideline sentence unreasonably fails
to reflect the statutory sentencing factors
where it (1) does not account for a factor
that should have received significant
weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) repre-
sents a clear error of judgment in balancing
the sentencing factors.
Smith, 440 F.3d at 707-08.
Roach claims that his position as district
attorney and his use of drugs are impermissible
factors, but, as we have explained, the district
court did not err in considering them. Roach
further maintains that his behavior involving
the office staff and Department of Public Safe-
ty officers was not illegal, and the evidence of-
fered as proof of that behavior was not veri-
fiable or reliable.
We have already noted that conduct does
not need to be illegal to be considered in de-
viations, so Roach’s objection on that ground
fails. See United States v. Arce, 118 F.3d 335,
340-41 (5th Cir. 1997). His claim that allega-
tions about his behavior were not verifiable or
reliable also is without merit, because the alle-
gations are contained in the presentence report
(“PSR”), and PSR’s generally bear sufficient
indicia of reliability to be considered by a dis-
trict court; the defendant bears the burden of
showing the information is untrue or unreliable
if the court relies on it. United States v. Rome,
207 F.3d 251, 254 (5th Cir. 2000). Roach did
not present rebuttal evidence, and the district
court reasonably relied on the PSR and did not
consider impermissible factors or facts when
deviating from the guidelines.
The stated reasons for deviating demon-
strate that the court considered § 3553(a)’s
factors. Section 3553(a)(1) instructs the court
to consider the nature and extent of the of-
fense and the position of the defendant, and
the district court’s reason for departing does
just that: It specifically notes why the nature
of the offense is egregious. Also, § 3553(a)-
(2)(A) instructs the court to consider whether
the sentence reflects the seriousness of the
crime. Here, the court deviated specifically
because the guideline sentence did not reflect
the seriousness of the crime; the court cor-
rectly considered § 3553(a)’s factors.
Roach argues that the court did not specifi-
cally indicate what factors in § 3553(a) it con-
sidered in assessing the deviation. Yet, a
court need not recite all the factors by going
down a checklist. Here the statement of rea-
sons is sufficient, because it enables review of
the sentence. Smith, 440 F.3d at 707.
The extent of the deviation is Roach’s final
ground for appeal. The deviation is reason-
able, so Roach cannot prevail on that claim.
The sentence is only fourteen months more
than is allowed under the guidelines; we have
consistently upheld sentences of greater
lengths in analogous cases. See, e.g., Smith,
417 F.3d at 491-93. “When the district court
imposes a non-Guideline sentence, it ‘must
more thoroughly articulate its reasons’ for do-
ing so, and the greater the difference between
the sentence and the Guideline range, ‘the
more compelling the justification based on fac-
tors in section 3553(a) must be.’” United
States v. Guidry, 2006 U.S. App. LEXIS
22038, at *5 (5th Cir. Aug. 23, 2006) (quoting

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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.

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