     Case: 10-51078     Document: 00511561563         Page: 1     Date Filed: 08/04/2011




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

                                                                            FILED
                                                                           August 4, 2011
                                     No. 10-51078
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROSHAY LAVOY HOCKER, also known as Roshay L. Hocker,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-347-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Roshay Lavoy Hocker pleaded guilty to a 27-count
indictment that charged him with conspiracy to commit bank fraud, aiding and
abetting the making, uttering, or possessing counterfeit checks, aiding and
abetting bank fraud, and counterfeiting obligations, instruments, or writings.
Hocker was subject to an advisory guidelines sentencing range of 70 to 87
months. The district court sentenced Hocker to 60 months of imprisonment on
the conspiracy count, 120 months on each of the counterfeiting counts, and 180

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-51078    Document: 00511561563      Page: 2   Date Filed: 08/04/2011

                                  No. 10-51078

months each on the bank fraud counts. Hocker filed a timely notice of appeal.
We review Hocker’s sentence for abuse of discretion. See Gall v. United States,
552 U.S. 38, 51 (2007).
      Hocker’s offense level was increased by two levels pursuant to U.S.S.G.
§ 3C1.1 because he had obstructed justice by intimating that he had ties to the
Mexican Mafia in an effort to discourage his accomplices from cooperating with
law enforcement officers. Despite his early plea to the indictment against him,
Hocker did not receive any downward adjustment pursuant to § 3E1.1 for an
acceptance of responsibility. He maintains that his is an extraordinary case in
which both the adjustment for obstruction and an adjustment for acceptance of
responsibility should have been applied.
      Nothing in the record supports Hocker’s contention that the district court
mistakenly believed it was precluded from awarding credit for acceptance of
responsibility solely because the obstruction-of-justice enhancement was applied.
The district court weighed all the facts in favor of and against a finding that
Hocker deserved a downward adjustment for acceptance of responsibility.
Although, under the facts of this case, the district court could have applied such
an adjustment based on Hocker’s early plea, its decision not to do so was not
without foundation, so we will not disturb it. See United States v. Solis, 299 F.3d
420, 458 (5th Cir. 2002); United States v. Chung, 261 F.3d 536, 540 (5th Cir.
2001).
      Hocker also contends that the sentence imposed in this case was greater
than necessary to achieve the purposes of sentencing set forth at 18 U.S.C.
§ 3553(a). He maintains that, since he received every possible enhancement
under the Guidelines, an 87-month sentence at the top of the advisory guidelines
range would have been sufficient. The district court’s sentencing decision in this
case was based on findings that Hocker’s criminal past, including unscored
convictions and similar adult conduct that did not result in convictions, was
seriously underrepresented by his Criminal History Score and that Hocker had

                                        2
   Case: 10-51078    Document: 00511561563      Page: 3   Date Filed: 08/04/2011

                                  No. 10-51078

a very high likelihood of recidivism. These were proper bases for an upward
departure. See § 4A1.3(a), p.s. The district court specifically found that the
sentence it chose advanced the objectives of § 3553(a)(2), such as the need for the
sentence to promote respect for the law, afford adequate deterrence, and protect
the public from further crimes by Hocker. Accordingly, Hocker has not shown
that the district court’s decision to vary upward constituted an abuse of
discretion. See Zuniga-Peralta, 442 F.3d at 347-48. Neither has he shown an
abuse of discretion with regard to the extent of the variance, as the degree of
departure is well below that of other variances we have upheld. See United
States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008) (upholding an upward
departure or variance to 180 months from an advisory maximum of 51 months);
United States v. Jones, 444 F.3d 430, 433, 442-43 (5th Cir. 2006) (upholding a
departure to 120 months, more than double the top of the guidelines range of 46
to 57 months); United States v. Zuniga-Peralta, 442 F.3d 345, 348 (5th Cir. 2006)
(affirming a departure to 60 months from a range of 27 to 33 months based on
criminal history).
      AFFIRMED.




                                        3
