               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 13a0312n.06

                                    Nos. 12-3609/3611
                                                                              FILED
                       UNITED STATES COURT OF APPEALS                     Mar 28, 2013
                            FOR THE SIXTH CIRCUIT                    DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                   )
                                            )
      Plaintiff-Appellee,                   )
                                            )
v.                                          )   ON APPEAL FROM THE UNITED
                                            )   STATES DISTRICT COURT FOR THE
ROBERT S. ROOP,             (12-3609)       )   NORTHERN DISTRICT OF OHIO
                                            )
      Defendant-Appellant,                  )
                                            )
RICHARD T. ROOP,            (12-3611)       )
                                            )
      Defendant-Appellant.                  )


      Before: DAUGHTREY, SUTTON, and KETHLEDGE, Circuit Judges.


      MARTHA CRAIG DAUGHTREY, Circuit Judge. In these consolidated appeals, the

defendants, brothers Robert Roop and Richard Roop, appeal the sentences imposed by

the district court following their guilty pleas to participation in a drug-manufacturing

conspiracy. Each defendant received an 80-month sentence. We review sentences in

criminal cases for substantive and procedural reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). For the reasons that

follow, we affirm both sentences.


No. 12-3609
      Defendant Robert Roop pleaded guilty to conspiracy to possess with intent to

distribute methamphetamine, under 21 U.S.C. § 846. He now contends that the district
Nos. 12-3609/3611
United States v. Roop


court erred in assessing two criminal history points based on a 2003 conviction in state

court that has since been invalidated because he was not notified at the time of sentencing

that he would be subject to “post-release control.” He cites as authority note 6 to USSG

§ 4A1.2, which provides that a conviction that has been reversed or vacated should not be

included in a defendant’s criminal history score. However, his argument is precluded by

State v. Fisher, 942 N.E. 2d 332 (Ohio 2010), which held that the failure to advise of post-

release control invalidates only the post-release control and not the underlying conviction

or the rest of the sentence. See also United States v. Coleman, 655F.3d 480, 485 (6th Cir.

2011) (upholding the inclusion of an Ohio conviction in a defendant’s criminal history after

post-release control was invalidated). Thus, the district court did not err in counting

Robert’s state court conviction when calculating his criminal history score.


No. 12-3611
       Defendant Richard Roop pleaded guilty to conspiracy to possess and distribute a

listed chemical, under 21 U.S.C. § 846. He argues that his sentence is substantively

unreasonable because his more culpable co-defendants received the same sentence he

did. However, the district court was not required to consider sentencing disparities

between co-defendants. See United States v. Mitchell, 681 F.3d 867, 883 (6th Cir. 2012).

Moreover, this argument overlooks the fact that Richard was sentenced as a career

offender, which subjected him to a higher guideline range in spite of his lesser role in the




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Nos. 12-3609/3611
United States v. Roop


offense. Thus, the district court did not commit an abuse of discretion in regard to

Richard’s sentence.


      AFFIRMED.




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