#### UNITED STATES of America, Plaintiff-Appellee v. Richard Dean ROBERTS, Defendant-Appellant

No. 16-1243

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2016

Filed: November 23, 2016

Dan Chatham, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.

Cory Jon Goldensoph, Cedar Rapids, IA, for Defendant-Appellant.

Richard Dean Roberts, Pro Se.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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 court1 sentenced Roberts to 24 months imprisonment. We affirm the sentence.

Roberts had previously been in a relationship with K.D. and had one child with her. On August 12, 2015, HD. lost her job and began drinking with her friend and coworker. She later contacted Roberts and asked if he would come to her home. Roberts and HD. drank alcohol at HD.’s residence. An obviously intoxicated HD. then asked Roberts if she could use heroin and stated that she could not inject herself. Roberts injected a small amount of heroin—less than .1 gram—into HD. HD. overdosed and lost consciousness. Roberts could not revive HD., so he called 9-1-1, and emergency medical technicians administered Narcan to revive HD. HD.’s 13 and 9 year old children were present at the residence during the overdose.

At sentencing, Roberts agreed that he was subjéct 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. Roberts requested 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.

*902Roberts 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 United States v. Townsend, 618 F.3d 915, 918 (8th Cir. 2010) (holding failure to timely object to procedural sentencing error “means that the error is forfeited 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.

1

. The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.