IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10430

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ROBERT ARTHUR ROGERS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:12-CR-210-1

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Robert Arthur Rogers challenges his 210-month sentence following his 

guilty-plea conviction for possession with intent to distribute 

methamphetamine. For sentencing purposes, Rogers was held accountable for 

over 1.8 kilograms of methamphetamine. Based on an offense level of 37 and 

a criminal history category of I, his advisory sentencing range under the 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-10430 Document: 00512492737 Page: 1 Date Filed: 01/08/2014
No. 13-10430

Sentencing Guidelines was 210 to 262 months’ imprisonment. As noted, he 

was sentenced at the bottom of the range. 

Although Rogers contends the district court erred in increasing his 

offense level for a leadership role, he offers nothing to support this assertion. 

Accordingly, the issue is deemed abandoned. See FED. R. APP. P. 28(a)(8); 

United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006) (citations omitted).

Rogers also contends his sentence is unconstitutionally excessive 

because it is grossly disproportionate to the severity of his crime. Because 

Rogers did not object to his sentence in district court, review is limited to plain 

error. See United States v. Chon, 713 F.3d 812, 823 (5th Cir. 2013). Under the 

plain-error standard, Rogers must show a clear or obvious forfeited error that 

affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, we have the discretion to correct the error, 

but should do so only if it seriously affects the fairness, integrity, or public 

reputation of the proceedings. See id.

Rogers’ claim fails because there is no clear or obvious error. Along that 

line, the Eighth Amendment prohibits a sentence that is grossly

disproportionate to the severity of the crime for which it is imposed. Solem v. 

Helm, 463 U.S. 277, 289-90 (1983). The scope of review for Eighth Amendment 

proportionality challenges is narrow. United States v. Thomas, 627 F.3d 146, 

160 (5th Cir. 2010) (citation omitted). The first step is a threshold comparison 

between the gravity of the offense and the severity of the sentence. Id. (citation 

omitted). If the reviewing court concludes the sentence is not grossly 

disproportionate to the gravity of the offense, then the inquiry is complete. Id. 

Only if the reviewing court determines the sentence is grossly disproportionate 

to the offense will the court proceed to the second step, a comparison between 

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the defendant’s sentence with sentences imposed for similar crimes in the same 

jurisdiction, and in other jurisdictions. Id. (citation omitted). 

This court has identified Rummel v. Estelle, 445 U.S. 263 (1980), as a

“benchmark” case in a proportionality analysis. See United States v. Gonzales, 

121 F.3d 928, 943 (5th Cir. 1997), abrogated on other grounds by United States 

v. O’Brien, 560 U.S. 218 (2010), as recognized in United States v. Johnson, 398 

F. App’x 964, 968 (5th Cir. 2010). In Rummel, the Supreme Court upheld a life 

sentence for an offender’s third nonviolent-felony offense of obtaining money 

by false pretenses. 445 U.S. at 285. In Gonzales, this court determined a nonhabitual offender’s 30-year sentence for using or carrying a firearm in 

furtherance of a drug-trafficking offense was not excessive when measured 

against Rummel’s benchmark, because the gravity of the offense was greater 

and the penalty less severe than in Rummel. 121 F.3d at 943-44. In Harmelin

v. Michigan, the Supreme Court affirmed, in the light of Rummel, a life 

sentence for possession of a large quantity of cocaine. 501 U.S. 957, 961-62, 

996 (1991). 

Using Rummel and its progeny as benchmarks, Rogers’ 210-month 

sentence is not grossly disproportionate to his offense. The gravity of Rogers’ 

offense is greater, and the sentence less severe, than in Rummel. See, e.g.,

Gonzales, 121 F.3d at 943-44. Because Rogers has not shown his sentence is 

grossly disproportionate to his offense, the inquiry is complete.

AFFIRMED.

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