     Case: 09-20595     Document: 00511196975          Page: 1    Date Filed: 08/06/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 6, 2010
                                     No. 09-20595
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES GORDON ROGERS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-13-1


Before REAVLEY, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        James Gordon Rogers appeals the 120-month sentence imposed following
his guilty plea conviction for 14 counts of passing fictitious securities, namely,
certificates of deposit (CDs). Rogers presents three arguments: (1) that the
district court erred by imposing the two-level abuse of trust enhancement
pursuant to U.S.S.G. § 3B1.3; (2) that the district court erred by failing to
adequately explain its reasons for varying upward from the 46-to-57-month
guidelines range of imprisonment and by failing to address the mitigation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20595

arguments he presented; and (3) that his sentence is substantively unreasonable
because it is greater than necessary to achieve the goals of 18 U.S.C. § 3553(a).
      In challenging the abuse of trust enhancement, Rogers first contends that
whether he abused a position of trust is a legal issue, reviewed de novo.
However, the issue of de novo review is foreclosed, and instead we review the
district court’s application of § 3B1.3 to the facts for clear error. See United
States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008).
      Section 3B1.3 of the Guidelines provides in pertinent part that “[i]f the
defendant abused a position of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of the offense, increase
by 2 levels.” Rogers was the president and chief executive officer (CEO) of his
company, which he portrayed to his victims was a tax business and a financial
planning business. Rogers directly approached his victims to invest their funds
into his company. When he ran out of money, he then persuaded those investors
and other victims to purchase CDs from his company, which he represented had
high rates of return. It was relatively easy for Rogers, who had unfettered
discretion over the investment funds, to conceal his wrongdoing by falsely
assuring his victims that all their money had been placed in CDs by supplying
them with fraudulent records of those CDs and by falsely assuring his investors
that his company was profitable by paying them small dividends. His position
of trust, as president and CEO of his company, put him in a position superior to
that of the general public to obtain and use his victims’ funds for his own use
and to pay other investors dividends. See United States v. Buck, 324 F.3d 786,
795 (5th Cir. 2003). The district court did not err in overruling Rogers’ objection
to the § 3B1.3 enhancement.
      Rogers’ second claim, that the court procedurally erred by not adequately
explaining its reasons for varying upward and by failing to address his
mitigation arguments, also fails. Contrary to Rogers’ assertions, the district
court carefully weighed the § 3553(a) factors, emphasized that each case must

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                                   No. 09-20595

be considered individually, and articulated sufficiently compelling reasons to
justify the 120-month sentence. The court provided an explicit oral and written
explanation for the upward variance that included fact-specific reasons such as
the length of the scheme to defraud, the striking similarity between the instant
offense and Rogers’ prior security fraud offense, and the profound negative effect
that the offense had on the victims. The district court also explained that the
variance was necessary to reflect the seriousness of the offense, provide just
punishment, and afford actual deterrence to future criminal conduct.
Additionally, the court read and listened to the mitigation arguments presented
by Rogers and his counsel and, in its statement of reasons, cited Rogers’ history
and characteristics as one of its reasons for imposing the sentence. The district
court’s reasons, tied to specific facts and particular § 3553(a) factors, were
sufficient to justify the variance and the extent and satisfy the requirement that
the court give reasons to permit meaningful appellate review. See United States
v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Accordingly, Rogers has not shown
any procedural error.
      Finally, Rogers has not shown that his sentence is substantively
unreasonable. The district court made the required individualized assessment
and was free to conclude, as it did, that in Rogers’ case the guidelines range gave
insufficient weight to some of the sentencing factors, including the seriousness
of the offense, the need to provide just punishment, and the need for deterrence.
See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008); § 3553(a).
Furthermore, though Rogers lists a set of factors he contends the court did not
consider, he presents no convincing argument that any of these is substantial
enough that it should have been weighted more heavily. See Smith, 440 F.3d at
708 (5th Cir. 2006).
      The district court’s judgment is AFFIRMED.




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