United States Court of Appeals

For the Eighth Circuit

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No. 16-1243

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Richard Dean Roberts

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: November 14, 2016

Filed: November 23, 2016

[Unpublished]

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.
Richard Dean Roberts appeals his sentence imposed after he pled guilty to

heroin distribution, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district

court sentenced Roberts to 24 months imprisonment. We affirm the sentence. 1

Roberts had previously been in a relationship with K.D. and had one child with

her. On August 12, 2015, K.D. lost her job and began drinking with her friend and

co-worker. She later contacted Roberts and asked if he would come to her home. 

Roberts and K.D. drank alcohol at K.D.’s residence. An obviously intoxicated K.D.

then asked Robertsif she could use heroin and stated thatshe could not inject herself. 

Roberts injected a small amount of heroin—less than .1 gram—into K.D. K.D.

overdosed and lost consciousness. Roberts could not revive K.D., so he called 9-1-1,

and emergency medical technicians administered Narcan to revive K.D. K.D.’s 13

and 9 year old children were present at the residence during the overdose. 

At sentencing, Roberts agreed that he wassubject to an upward departure under

U.S.S.G. § 5K2.2 (“If significant physical injury resulted, the court may increase the

sentence above the authorized guideline range.”). The presentence investigation

report gave Roberts a total offense level of 10 and a criminal history category of I. 

Robertsrequested a 3-level upward departure which would have made his Guidelines

sentencing range 12 to 18 months. The government requested the district court

impose a 24-month sentence. The district court determined a 5-level departure under

U.S.S.G. § 5K2.2 was appropriate, giving Roberts a Guidelines sentencing range of

18 to 24 months. After considering the 18 U.S.C. § 3553(a) factors, the court

sentenced Roberts to 24 months imprisonment. 

Roberts appeals, arguing the district court plainly erred in giving him a harsher

upward departure under U.S.S.G. § 5K2.2 than others similarly situated to him. See

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa. 

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United States v. Townsend, 618 F.3d 915, 918 (8th Cir. 2010) (holding failure to

timely object to proceduralsentencing error “means that the error isforfeited and may

only be reviewed for plain error” (internal citation and quotation marks omitted)). 

Sentencing disparity is not a listed factor when deciding the extent of an upward

departure under U.S.S.G. § 5K2.2 (“The extent of the increase ordinarily should

depend on the extent of the injury, the degree to which it may prove permanent, and

the extent to which the injury was intended or knowingly risked.”). District courts

consider “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct” when “determining

the particular sentence to be imposed.” 18 U.S.C. § 3553(a)(6). Because the court

stated it considered the 18 U.S.C. § 3553(a) factors, which includes avoiding

unwarranted sentencing disparities among similar defendants, as it determined

Roberts’s particular sentence, we find the district court did not plainly err. 

Accordingly, we affirm Roberts’s sentence. 

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