                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                 October 6, 2006
                         United States Court of Appeals                              Charles R. Fulbruge III
                                       for the Fifth Circuit                                 Clerk
                                            _______________

                                              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                         ceived after pleading guilty of being an addict
  SMITH and STEWART, Circuit Judges.                   or unlawful user of a controlled substance in
                                                       possession of a firearm. The district court cal-
JERRY E. SMITH, Circuit Judge:*                        culated the appropriate offense level under the
                                                       sentencing guidelines, upwardlydeparted from
   Richard Roach appeals the sentence he re-           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-
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                       tence violates the Constitution and is unrea-
termined that this opinion should not be published
and is not precedent except under the limited cir-     sonable. We affirm.
cumstances set forth in 5TH CIR. R. 47.5.4.
                       I.                               which he pleaded guilty is unconstitutional
    Roach was a district attorney when he               because it violates equal protection and due
pleaded guilty to one count of possession of a          process principles.
firearm by a drug user or addict. He became
addicted to and used methamphetamine in the                                    A.
final months of 2004. He was arrested in                   Roach contends that the decision to deviate
January 2005 carrying a briefcase containing            from the sentencing guidelines violates the
two firearms, in addition to which he also pos-         Constitution’s ex post facto and due process
sessed thirty-three other guns.                         provisions. He notes that on the date that he
                                                        committed this offense, the then-mandatory
   The district court calculated Roach’s sen-           guidelines set the maximum statutorysentence.
tence by starting with the base offense level of        Though in United States v. Booker, 543 U.S.
14 pursuant to U.S.S.G. § 2K2.1(a)(6). The              220 (2005), the Court held that the guidelines
court enhanced the base level six points for            are only advisory, Roach avers that the reme-
possessing thirty-five firearms pursuant to             dial portion of Booker’s holdingSSi.e., the
§ 2K2.1(b)(1)(C), and two points for abusing            portion rendering the guidelines nonman-
a position of trust pursuant to § 2K2.1(b)(5).          datorySSmay not be applied to his case with-
The level was decreased three points because            out violating the ex post facto and due process
Roach had accepted responsibility.                      provisions of the Constitution. Also, he ar-
                                                        gues that facts increasing his sentence must be
   After calculating the correct offense level,         proven to a jury or admitted, despite the fact
the court departed two points upward for                that after Booker, judges are entitled to find
abuse of a position of trust pursuant to                sentencing facts by a preponderance of the
§ 5K2.0(a)(3), resulting in a final offense level       evidence. See United States v. Mares, 402
of 21 and a guideline range of 37-46 months.            F.3d 511, 517 (5th Cir.), cert. denied, 126 S.
Finding that the nonmandatory guidelines                Ct. 43 (2005).
range did not adequately address the serious-
ness of the offense, the court imposed a non-               Fifth Circuit precedent rules out Roach’s
guideline sentence of 60 months of imprison-            position, because we have consistently fol-
ment, 14 months above the final offense level.          lowed Justice Breyer’s instruction in Booker
                                                        that “we must apply today’s holdingsSSboth
   Roach initially appealed his sentence on             the Sixth Amendment holding and our reme-
seven grounds, then abandoned his third and             dial interpretation of the Sentencing ActSSto
fourth grounds. We address each of the re-              all cases on direct review.” Booker, 543 U.S.
maining grounds individually.                           at 224. Accord United States v. Austin, 432
                                                        F.3d 598, 599 (5th Cir. 2005); United States v.
                      II.                               Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).
    Roach challenges his sentence on two con-
stitutional grounds. First, he argues that the              Our decision in Austin deals with the same
district court violated the ex post facto and           situation we encounter here: Sentences based
due process provisions by treating the sentenc-         on advisory guidelines do not implicate the due
ing guidelines as merely advisory and not               process or ex post facto protections. Id. at
mandatory. Second, he argues that the law to            599. Austin also made plain that “the specific


                                                    2
division of labor between judge and jury” does          commit plain error by enforcing the statute. A
not affect whether a sentence imposed after             drug user does not have a fundamental right to
Booker is unconstitutional. Id. at 600.                 keep and bear arms, so § 922(g)(3) must only
                                                        survive rational basis review, and it does.
                      B.
   Roach argues that 18 U.S.C. § 922-                       “[T]he Second Amendment’s right to bear
(g)(3)SSthe law under which he was convict-             arms is subject to ‘limited, narrowly tailored
edSSis unconstitutional because it violates the         specific exceptions or restrictions for particular
Constitution’s Equal Protection Clause and              cases that are reasonable and not inconsistent
substantive due process. That provision                 with the right of Americans generally to indi-
states the following:                                   vidually keep and bear their private arms as
                                                        historically understood in this country.’”
   It shall be unlawful for any person . . . who        United States v. Patterson, 431 F.3d 832, 835
   is an unlawful user of or addicted to any            (5th Cir. 2005) (quoting United States v. Em-
   controlled substance (as defined in section          erson, 270 F.3d 203, 261 (5th Cir. 2001)).
   102 of the Controlled Substances Act (21             Though we have not specifically reached the
   U.S.C. 802)) . . . to ship or transport in in-       question whether § 922(g)(3) violates equal
   terstate or foreign commerce, or possess in          protection or substantive due process, we have
   or affecting commerce, any firearm or am-            held that several of § 922(g)’s other specific
   munition; or to receive any firearm or am-           exceptions to the Second Amendment are con-
   munition which has been shipped or trans-            stitutional.1
   ported in interstate or foreign commerce.
                                                           We have specifically discussed the consti-
Roach argues that the right to keep and bear            tutionality of § 922(g)(3) in Patterson, in
arms is fundamental, requiring that we apply            which defendant challenged § 922(g)(3) as
strict scrutiny in determining whether a law            unconstitutionally vague and overbroad. We
infringing on the right violates equal protection       rejected that position, explicitly affirming
or due process.                                         § 922(g)(3) as a constitutional exception to the
                                                        Second Amendment:
   We review Roach’s challenge to the consti-
tutionality of § 922(g)(3) for plain error,                Prohibiting unlawful drug users from pos-
because Roach did not challenge § 922(g)(3)’s              sessing firearms is not inconsistent with the
constitutionality in the district court. United
States v. Coil, 442 F.3d 912, 915-16 (5th Cir.             1
2006) (citing United States v. Knowles, 29                    E.g., Emerson, 279 F.3d at 261 (felons);
F.3d 947, 950 51 (5th Cir. 1994)). “A convic-           United States v. Everist, 368 F.3d 517, 519 (5th
                                                        Cir. 2004) (individuals subject to domestic re-
tion based upon an unconstitutional statute is
                                                        straining orders). For similar authority from other
both ‘plain’ and ‘error.’” Id. at 916 (citing           circuits, see United States v. Baker, 197 F.3d 211,
Knowles, 29 F.3d at 951).                               216 (6th Cir. 1999) (holding that persons subject to
                                                        domestic violence protective orders are not a
    Section 922(g)(3) does not violate the Con-         suspect class and that the statute does not implicate
stitution’s equal protection or substantive due         a fundamental right); United States v. McKenzie,
process provisions, so the district court did not       99 F.3d 813, 817-18 (7th Cir. 1996) (same, for
                                                        felons in possession).

                                                    3
   right to bear arms guaranteed by the Sec-               this interest.3 Thus, Roach was convicted un-
   ond Amendment as construed in Emerson                   der a constitutional statute, so his second
   and Everist. Like the classes of criminals in           ground for appeal fails.
   Emerson and Everist, unlawful users of
   controlled substances pose a risk to society                                  III.
   if permitted to bear arms.                                 Roach presents three questions regarding
                                                           the sentence itself. He challenges the upward
Patterson, 431 F.3d at 836.                                departure, the reasons for imposing a non-
                                                           guideline sentence, and the extent of the devi-
   Patterson’s conclusion is sufficient to de-             ation from the sentence calculated under the
feat Roach’s equal protection and due process              guidelines.
claims. Because drug users and addicts have
no fundamental right to bear arms, § 922(g)(3)                Even after Booker, we review the district
does not interfere with a fundamental right, so            court’s application of the guidelines de novo.
we do not apply strict scrutiny.2                          See United States v. Villegas, 404 F.3d 355,
                                                           359 (5th Cir. 2005). We accept the district
   Though he tries, Roach cannot rely on Em-               court’s findings of fact related to sentencing
erson to establish that Second Amendment                   unless they are clearly erroneous. United
rights are fundamental, because we foreclosed              States v. Creech, 408 F.3d 264, 270 n. 2 (5th
that notion in Darrington, 351 F.3d at 635:                Cir.), cert. denied, 126 S. Ct. 777 (2005).

   Again, Emerson is a carefully and labori-                  The district court ultimately deviated from
   ously crafted opinion, and if it intended to            the guidelines, so Roach’s sentence is a non-
   recognize that the individual right to keep             guideline sentence.4 We review non-guideline
   and bear arms is a ‘fundamental right,’ in              sentences for reasonableness. Smith, 440 F.3d
   the sense that restrictions on this right are           at 706. “Though flexible, the reasonableness
   subject to ‘strict scrutiny’ by the courts and          standard is not unbounded. Both a district
   require a ‘compelling state interest,’ it
   would have used these constitutional terms
   of art.                                                    3
                                                                 See Huddleston v. United States, 415 U.S.
                                                           814, 824 (1974) (stating that Congress’s purpose
Under a rational basis review, § 922(g)(3) is              in enacting federal gun control legislation was to
constitutional, because Congress has an inter-             keep “lethal weapons our of the hands of criminals,
est in keeping guns out of the hands of drug               drug addicts, mentally disordered persons, juve-
users, and § 922(g)(3) is rationally related to            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,
   2
      See United States v. Darrington, 351 F.3d            which is not the result of a Guidelines-authorized
632, 634 35 (5th Cir. 2003) (holding that the fel-         upward or downward departure. In United States
on-in-possession statute, § 922(g)(1), does not vio-       v. Mares, we adopted the phrase ‘non-Guideline
late equal protection, because a felon does not have       sentence’ to express this distinction. 402 F.3d 511,
a fundamental right to keep and bear arms).                519 n.7 (5th Cir. 2005).”).

                                                       4
court’s post-Booker sentencing discretion and            two cases in which this court noted that a
the reasonableness inquiry on appeal must be             sentencing court cannot consider a defendant’s
guided by the sentencing considerations set              socio-economic status. See United States v.
forth in 18 U.S.C. § 3553(a).” Id. (citing               Hatchett, 923 F.2d 369, 374 (5th Cir. 1991);
Booker, 125 S. Ct. at 766.). Though we ulti-             United States v. Stout, 32 F.3d 901, 903 04
mately review the sentence for reasonableness,           (5th Cir. 1994). Other decisions of this court
we still must review the District Court’s up-            lend some support to Roach’s position. See
ward departure, because “[w]ithout a proper-             United States v. Brunson, 915 F.2d 942, 943
ly-calculated Guideline range, we cannot en-             (5th Cir. 1990); United States v. Harrington,
sure that the disparity between [the] sentence           82 F.3d 83, 87 (5th Cir. 1996). In Brunson,
and the Guideline range is warranted.” Id. at            we recognized, though ultimately ignored
706 n.2. Thus, we begin by reviewing the                 under a plain error review, the merit of an as-
two-point upward departure.                              sistant district attorney’s argument that the
                                                         district court should have used U.S.S.G.
                       A.                                § 3B1.3, and not an upward departure, where
   “In evaluating both a decision to depart and          the assistant district attorney had abused his
the extent of the departure, we review for               public position. See Brunson, 915 F.2d at
‘abuse of discretion.’” Id. at 707 (citing Unit-         943-44. In Harrington, we stated that an at-
ed States v. Saldana, 427 F.3d 298, 308 (5th             torney’s position as an officer of the court was
Cir.), cert. denied, 126 S. Ct. 810 (2005), and          not grounds for an upward departure. See
cert. denied, 126 S. Ct. 1097 (2006)). The               Harrington, 82 F.3d at 87.
district court provided reasons for the depar-
ture, stating that                                           The district court’s decision in Roach’s
                                                         case, however, is different from those in Hat-
   the guidelines do not adequately address a            chett, Stout, Brunson, and Harrington. Here
   public official betraying the public trust and        the court did not upwardly depart merely be-
   the seriousness of the offense. The Court             cause of Roach’s socio-economic status or po-
   finds the defendant had 2 loaded guns and             sition in public office, but because he betrayed
   a stun gun in his briefcase in the Court-             the public trust. In United States v. Wade, 931
   room, 2 loaded guns and a stun gun in his             F.2d 300, 307 (5th Cir. 1991), we affirmed an
   office and possessed a total of 35 guns.              upward departure despite the fact the district
   Drug use is a course of conduct that is out           court considered the defendant’s position and
   of bounds and unscrupulous. A 2-level                 his abuse of that position. There, we explained
   increase is added for abuse of trust.                 that

   Roach claims that the court based its up-                in certain cases, law enforcement experi-
ward departure on impermissible factors. We                 ence is an acceptable reason to depart up-
disagree.                                                   wards. In the instant case, Wade abused
                                                            his position as sheriff to further his drug
   Roach’s first complaint is that considering              manufacturing conspiracy. For example,
his position as a public official and his betrayal          Wade passed along information regarding
of the public trust is an impermissible reason              future investigations to coconspirators;
for departing from the guidelines. He cites                 seized drug manufacturing equipment that


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


                                                        6
havior involving office staff and Department of         court reasonably relied on the PSR and did not
Public Safety officers. We review the district          consider impermissible factors or facts when
court’s statement of reasons for deviating              deviating from the guidelines.

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


                                                    7
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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