United States Court of Appeals Fifth Circuit 

## FILED October 6, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

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### m 05-10761

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee 

### ,
VERSUS


### R ICHARD 

### J AMES 

### R OACH 

### ,

Defendant-Appellant

_________________________ Appeal from the United States District Court fo r the Northern District of Texas 

### m 2:05-CR-2-ALL

______________________________

Before J ONES , Chief Judge, and S MITH and S TEWART , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *Richard Roach appeals the sentence he received aft er pleading guilty of being an addict
or unlawful user of a controlled substance in possession of a fir earm. The district court calculated the appropri ate of fense level under th e sentencing guidelines, upwardly departe d from th at level, th en and ultimately deviated from the guide lines, sentencing Roach to sixty
mo nt hs of imprisonment and th ree years of supervi sed release. Roach argues that his sentence vio lat es the Constitution and is unreasonable. We affirm. * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.2 I. Roa ch was a di strict attorney when he pleaded guilt y to one count of possession of a fir earm by a drug user or addict . He became addicted to and used met hamphetamine in the f inal mo nt hs of 2004. He was arrested in January 2005 carrying a briefcase containing two fir earms, in addition to which he also possessed thirty-three other guns.
The district court calculated Roach’s sentence by starting wit h th e base of fense level of 14 pursuant to U.S.S.G . § 2K2.1(a)(6). The court enhanced the base level six points for possessing thirty -five fir earms pursuant to § 2K2.1(b)(1)(C), and two point s fo r abusing a position of trust pursuant to § 2K2.1(b)(5). The level was decreased three points because Roach had accepted responsibility.
Aft er calculating th e c orrect of fense level, th e co urt departed two point s upward for abuse of a position of trust pursuant to § 5K2.0(a)(3), resulting in a final of fense level of 21 and a guideline range of 37-46 months. Finding that the nonmandatory guidelines range did not adequatel

y address th e seriousness of th e of

fense, th e court impo s ed a nonguideline s e nt ence of 60 mo nt hs of imprisonment , 14 mo nt hs above th e final of fense level.

R oach init ially appealed his sentenc e on seven grounds, th en abandoned his thir d an d fo urth grounds . We address each of the remaining grounds individually.

II. Roach challenges his sentence on two constitutional grounds. Fi

rst, he argues that the district court vio lat ed th e ex post facto and due process provisions by treating th e sentencing guidelines as merely advisor y and not mandatory. Second, he argues that the law to which he pleaded guilt y is unconstitutional b ecause it vio lat es equal protection and due process principles.
A. Roach contends th at the decision to deviate from the sentencing guidelines vio lat es the C onstitution’s ex post facto and due proce s s provisions. He notes that on the date that he
co mmit ted this of

fense, the then-mandatory guidelines set the maximum statut ory sentence. Though in United States v. Booker , 543 U.S. 220 (2005), the Court held th at the guidelines
are only advisory, Roach avers that the remedial portion of Booker ’s hold ing 

### S S i. e., th e portion rendering the guidelines nonmand atory 

### S S may not be applied to his case wit hout vio lat ing the ex post facto and due process provisions of th e Constitution. Also, he argues th at facts increasing his sentence must be proven to a jury or admit ted, despi te the fact th at aft er Booker , judges are entitled to f ind sentencing fa cts by a preponderance of the evidence. S ee United States v. Mares , 402 F.3d 511, 517 (5th Cir.), cert. denied , 126 S. Ct. 43 (2005).
Fift h Circ uit precedent rules out Roach’s position, because we have consistently fo llo wed Justice Breyer’s inst ruction in Booker th at “we must apply today ’s holdings 

### SS both th e Sixt h Amendment holding and our remedial int erpretation of the Sentencing Act 

### S S to all cases on direct review.” B ooker , 543 U.S. at 224. Accord United States v. Austin , 432 F.3d 598, 599 (5th Cir. 2005); United States v. Scroggins , 411 F.3d 572, 576 (5th Cir. 2005).
Our decision in Austin deals with the same sit uation we encounter here: Sentences based
on advisory guidelines do not implicat e th e due process or ex post fa cto protections. I d. at 599. A ustin also made plain th at “the specific3

divisio n of labo r between judge and jury” does not affect whether a sentence impo sed aft er Booker is unconstitutional. Id. at 600.

B. Roach argues th at 18 U.S.C. § 922- (g)(3) 

### SS th e law under which he was convicted 

### SS is unconstitutional because it vio lat es the Constitution’s Equal Protec t io n Clause and substantive due pr ocess. That provi sio n states the following:
It shall be unlawful fo r any person
. . . who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of th e Controlled Substances Act (21 U.S.C. 802))

. . . to ship or transport in interstate or fo reign com

merce, or possess in or af fecting commerce, any firearm or ammunit io n; or to receive any fir earm or ammunit io n which has been shipped or transported in int erstate or foreign commerce.
Roach argues th at th e right to keep and bear
arms is fundamental, requiring th at we appl y strict scrutiny in determ

ining whether a law infringing on th e right vio lat es equal protection or due process.
We review Roach’s challenge to th e constitutionali t y of § 922(g)(3) fo r plain error, because Roach did not challenge § 922(g)(3)’s constitutionality in th e district court

. U nited States v. Coil , 442 F.3d 912, 915-16 (5th Cir. 2006) ( citing U

nited States v. Knowles , 29 F.3d 947, 950 51 (5th Cir. 1994)). “A conviction based upon an unconstitutional statute is both ‘plain’ and ‘error. ’ ” I d. at 916 (citing Knowles , 29 F.3d at 951).
Section 922(g)(3) does not vio lat e the Constitution’s equal protection or substantive due process provisions, so th e district court did not com mit plain error by enforcing the statute. A drug user does not have a fundamental right to keep and bear arms, so § 922(g)(3) m ust only survive rational basis review, and it does. “[T]he Second Amendment’s right to bear
arms is subject to ‘limit ed, narrowly tailo red specific e xceptio ns or restrictions for particular cases that are reasonable and not inconsistent wit h the right of Americans generally to individually keep and bear their private arms as hist orically understood in this country .’” United States v. Patterson , 431 F.3d 832, 835 (5th Cir. 2005) (quoting United States v. Emers on , 270 F.3d 203, 261 (5th Ci r. 2001)). Th o ugh we have not specifically reached th e question whether § 922(g)(3) vio lat es equal protection or substantive due process, we have held that several of § 922(g)’s other specific exceptions to the Second Amendment are constitutional. 1

We have specifically discussed the constitutionality of § 922(g)(3) in Patterson , in which defendant challenged § 922(g)(3) as unconstitutionally vague and overbroad. We rejected th at posit i on, explicit ly affirming § 922(g)(3) as a constitutional exception to th e Second Amendment:
Prohi bit ing unlawful drug users from possessing fir earms is not inco nsist ent wit h th e

1 E.g. , Emerson , 279 F.3d at 2 61 (felons); United States v. Everist , 368 F.3d 517, 519 (5th Cir. 2004) (individuals subject to domestic restraining orders). For similar authority from other circuits, see United States v. Baker , 197 F.3d 211, 216 (6th Cir. 1999) (holding that persons subject to domestic violence protective orders are not a suspect class and that the statute does not implicate
a fundamental right); United States v. McKen zie , 99 F.3d 813, 817-18 (7th Cir. 1996) (sa me, for felons in possession).4

right to b ear arms guaranteed by the Second Amendment as construed in Emerson and Everist

. Like the classes of criminals in Emerson an d Everist , unlawful users of controlled substances pose a ri sk to society if permit ted to bear arms.
Patterson , 431 F.3d at 836.

Patterson ’s concl

usion i s sufficient to defeat Roach’s equal protection and due process claims. Because drug users and addicts have
no fundamental right to bear arms, § 922(g)(3) does not int erfere wit h a fundamental right, so we do not appl

y st rict scrutiny. 2 Though he tries, Roach cannot rely on Emerson to e s tablish th at Second Amendment rights are fundamental, because we fo reclosed th at notion in Darrington , 351 F.3d at 635: Again, Emerson is a carefully and labo ri

ousl y crafted opinio n, an d if it int ended to recognize th at th e individual right to keep and bear arms is a ‘fundamental right,’ in th e sense th at restric ti ons on thi s right are subject to ‘strict scrutiny’ by th e courts and require a ‘compelling state int erest,’ it would have used th ese constitutional terms of art.
U n der a rational basis review, § 922(g)(3) is constitutional, because Congress has an int erest in keeping guns out of th e hands of dru g users, and § 922(g)(3 ) i s rationally related to this int erest. 3 Thus, Roach was convicted under a constitutional statute, so his secon d ground for appeal fails.

III. Roach presents th

ree questions r egarding the sentence it self. He challenges the upward departure, th e reasons for imposing a nonguideline sentence, and the extent of the deviation from the sentence calculated under th e guidelines.
Even aft er Booker , we review the district court’s application of the guidelines de novo
. See United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). We accept th e district court’s findings of fact related to sentencing unless they are clearly erroneous. U nited States v. Creech , 408 F.3d 264, 270 n. 2 (5th Cir.), cert. denied , 126 S. Ct. 777 (2005).
The district court ul

timat ely deviat ed from the guidelines, so Roach’ s sentence is a nonguideline sentence. 4 We review non-guideline sentences fo r reasonableness. Smith , 440 F.3d at 706. “Though flexible, the reasonableness standard i s not unbounded. Both a district

2 See United States v. Darrington , 351 F .3d 632, 634 35 (5th Cir. 2003) (holding that the felon-in-possession statute, § 922(g)(1), does not violate equal protection, because a felon does not have a fundamental right to keep and bear arms). 3 See Huddleston v. United States , 415 U.S. 814, 824 (1974) (stating that Congress’s purpose in enacting federal gun control legislation was to keep “lethal weapons our of the hands of criminals, drug addicts, mentally disordered persons, juveniles, 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, which is not the result of a Guidelines-authorized upward or downward departure. In U nited States
v. Mares , we adopted the phras e ‘non-Guideline sentence’ to express this distinction. 402 F.3d 511, 519 n.7 (5th Cir. 2005).”).5

court’s post- Booker sentencing discretion and th e reasonableness inquiry on appeal must be guided by th e sentencing considerati on s set fo rth in 18 U.S.C. § 3553(a).” I d. (citing Booker , 125 S. Ct. at 766.). Though we ul ti

mat ely review th e sentence fo r reasonableness,
we still mu st review the District Court’s upward departure, because “[w]ithout a properly- calculated Guide line range, we cannot ensure that the disparity between [the] sentence and th e Guideline range is warranted.” I d. at 706 n.2. Thus, we begin by reviewing the two-point upward departure.

A. “In evaluating both a decision to depart and th e extent of th e departure, we revie w f or ‘abuse of discretion.’” I

d. at 707 (citing United States v. Saldana , 427 F.3d 298, 3 0 8 (5th Cir.), cert. denied , 126 S. Ct. 810 (2005), and cert. denied , 126 S. Ct. 1097 (2006)). The district court provided reasons for the departure, stating that
th e guidelines do not adequatel y address a public of ficial betraying th e public trust and th e seriousness of th e of

fense. The Court finds th e defendant had 2 lo aded guns and
a stun gun in his brie fcase in t he Courtroom , 2 loaded guns and a stun gun in his of fice and possessed a total of 35 guns. Drug use is a course of conduct that is out of bounds an d unscrupulous. A 2-level increase is added for abuse of trust.
Roach claims t hat the court based its upward departure on impermissible factors. We disagree.
Roach’s fir st com

plaint is th at considering his position as a public of

ficial and his betray al of th e public trust is an impe rmissible reason fo r departing from th e guidelines. He cites two cases in whic h t his court noted that a sentencing court cannot consider a defendant’s socio-econo mic status. S ee United States v. Hatchett , 923 F.2d 369, 37 4 (5th Ci r. 1991); United States v. Stout , 32 F.3d 901, 903 04 (5th Cir. 1994). Other decisions of this court lend som e support to Roach’s p osi ti on. S ee Uni ted States v. Brunson , 915 F.2d 942, 943 (5th Cir. 1990); United States v. Harrington , 82 F.3d 83, 87 (5th Cir. 199 6). In B runson , we reco gnized, though ultimately ignored under a plain error review, the merit of an assist ant district att orney ’s argument that the district court should have used U.S.S.G. § 3B1.3, and not an upward departure, where the assistant district attorney had abused his public position. S ee Brunson , 915 F. 2 d at 943-44. In H

arrington , we stated th at an attorney ’s position as an of

ficer of the court was not grounds fo r an upward depar ture. S ee Harrington , 82 F.3d at 87.
The district court’s decision in Ro a ch’s case, however, is different from those in Hatchett , Stout , Brunson , and Harrington

. Here the court did not upwardly depart merely because of Roach’s socio-econom ic status or posit io n in public of

fice, but because he betrayed the public trust. In U

nited States v. Wade , 931 F.2d 300, 307 (5th Cir. 1991), we affirmed an upward departure despite the fact the district court considered the defendant’s position and his abuse of th at position. There, we explained th at
in certain cases, law enforceme nt experience is an accept able reason to depart upwards. In the instant case, Wade abused his position as sheriff to further his drug
manufacturing conspiracy. For example, Wade passed alo ng info r mat io n regarding future invest igati ons to coconspi rators; seized drug manufacturing equipment th at6

was to be used as evidence in another drug case; convinced the Hardin County Sheriff to release Guillo ry , a coco nspirator, f rom jail; had Guillory released by the Houston Pol ice Departm

ent following an arrest; recru it ed Duhon, another coconspirator, to be a deputy sheriff; removed met h oil from th e Sheriff’s of

fice; and had Baker’s parole supervision transferred to Orange County

.Given Wade’s egregious behavior in abusing his position as sheriff, th e district judge reasonably relied upon his position as sheriff as a fact or in departing upwards.
Id.
Roach’s abuse of his position as district attorney mirrors Wade’s abuse of his position as sheriff. Roach used illegal drugs while prosecutin g oth ers for the same behavior, and he consistently abused his of fice. For instance, a Texas state trooper, Jason Henderson, testified at th e sentencing hearing th at Roach had tried to bribe him and another trooper to work f or Roach by of

fering th em a share of seized funds. Thus, just as this court permitted an upward departure in Wade based on egregious abuse of a public of

fice, th e di strict court did not err by considering Roach’s betray al of public trust.
As a second argument, R oach claims that th e district court impermissibly factored in “t he seriousness of th e of

fense.” He objects to this factor, because th e “seriousness” of his crime is already accounted fo r in th e base level of the of fense and because “seriousness” is not a sufficient ly specific reason.
The district court, however, provided a specific finding th at makes Roach’s of fense mo re serious th an th e of

fense specified in th e guidelines, and the finding is no t clearly erroneous. The court fo und th at Roach’s abuse of the public trust made his of

fense mo re serious th an the guidelin es, wit hout an upward departure, permit.
Roach advances various t heories to try to exclude the findings of fact underlying th e district court’s decision. His argument that he
was authorized to p ossess guns as a l aw enfo rcement of

ficer is of no consequence, because the grounds fo r an upward departure do not have to be illegal o r cri minal co nduct. U nited States v. Arce , 118 F.3d 335, 340 -41 (5th Cir. 199 7 ). Also , al th ough Roach correctl y no tes that drug use is no t usually a reason fo r upward departure, U nited States v. Williams , 937 F.2d 979, 983 (5th Cir. 1991), here the drug use was extraordinary : The district court explained th at Roach prosecuted people fo r drug use while using drugs. In sum, the district court did not abuse it s discretion in calculating the guidelines sente nce using an upward departure.
B. Roach argues th at the fo urteen-month deviation from the calculated guideline range is unreasonable because (1) the reasons cit ed by the district court fo r deviation are not permissible, and (2) the evidence fails to establish any legal basis fo r the deviation. Also , Roach urges th at the extent of the deviation is unreasonable.
The cou r t, aft er calculating the guideline sentence, deviated from the guidelines and imposed a discretionary sentence becaus e “the guidelines do not adequatel y address the conduct in this case” in light of the fact th at Roach engaged in “a course of out of bounds and unscrupulous behavior” that included (1) carrying and possess ing loaded guns as a district attorney and drug addict and (2) be-7

havio r invo lving of

fice staff and Departm

ent of Public Safety officers. We review the district court’s statem

ent of reasons for deviating

to determ ine whether, as a matter of substance, th e senten c ing factors in section 3553(a) support th e sentence . . . . A non-Guideline sentence unreasonably fails to reflect th e stat utory sentencing factors where it (1) does no t account f or a f actor th a t should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing th e sentencing factors.
Smith , 440 F.3d at 707-08.
Roach claims th at his positio n as district attorney and his use of drugs are impermissible factors, but, as we have explained, th e district court did not err in co nsidering them. Roach further maint ains that his behavior involving th e of fice staff and Departm

ent of Public Safety of ficers was not illegal, and th e evidence of

fered a s proof of th at behavior was not verifiable o r rel

iable.
W e have already noted th at conduct do e s not need to be illegal t o be considered in deviat io ns, so Roach’s objection on that ground fails. S ee United States v. Arce , 118 F.3d 335, 340-41 (5th Cir. 1997). His claim t hat allegations about his behavior were not verifiable or reliable also is wit hout merit , because the allegations are contained in th e presentence report (“PSR”), and PSR’s generally bear sufficient indicia o f reliabilit y t o be considered by a district court; th e defendant bears th e burden of showing th e info rmation is untrue or unreliable if th e court relies on it

. U

nited States v. Rome , 207 F.3d 251, 254 (5th Cir. 2000). Roach did not present rebuttal evidence, and th e district court reasonably relied on the PSR and did not consider impermissible factors or facts when deviating from the guidelines.
The stated reasons fo r deviating demonstrate th at th e court considered § 3553(a)’s factors. Section 3553(a)(1) instructs the court to consider the nature and extent of th e o f

fense and the position of the defendant, and the district court’s reason f or departing does just th at: It specifically notes why the nature of the of fense is egregious. Also, § 3553(a)- (2)(A) inst ructs the court to consider whether the sentence reflects the seriousness of th e crime. Here, the court deviated specifically because the guideline sentence did not reflect t he seriousness of the crime; the court correctl y co nsidered § 3553(a)’s factors.
Roach argues th at the court did not specifically indicate what factors in § 3553(a) it considered in a ssessing the deviation. Yet, a court need not reci

te all t he factors by going down a checklist. Here the statement of reasons is sufficient , because it enables review of the sentence. Smith , 440 F.3d at 707.
The extent of the deviation is Roach’s final groun d for appeal . The deviation is reasonable, so Roach canno t prev ail o n t hat claim. The sentence is only fo urteen mo nt hs mo re th an is allo wed under the guidelines; we have consistently upheld sentences of greater lengths in analogous cases. S ee, e.g. , Smith , 417 F.3d at 491-93. “When the district court impo ses a non-Guideline sentence, it ‘must
mo re th oroughl

y articulate it s reasons’ fo r doing so, and the greater the difference between the sentence and the Guideline range, ‘the
mo re com pelling the justification based on factors in section 3553(a) m u st be.’” U

nited States v. Guidry , 2006 U.S. App. LEXIS 22038, at *5 (5th Cir. Aug. 23, 2006) (quoting8

Smith , 440 F.3d at 7 07). Roach engaged in p articularly egregious abuses of his office, so sixt y mo nt hs is not unreasonable based on the facts, and th e district court’s statem ent of reasons is adequate under our prevailing st andards. The judgment of sentence is AFFIRMED.