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

_______________

m 05-10761

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RICHARD JAMES ROACH,

Defendant-Appellant

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 2:05-CR-2-ALL

______________________________

Before JONES, Chief Judge, and 

SMITH and STEWART, Circuit Judges. 

JERRY E. SMITH, Circuit Judge:*

Richard Roach appeals the sentence he received after pleading guilty of being an addict

or unlawful user of a controlled substance in

possession of a firearm. The district court calculated the appropriate offense level under the

sentencing guidelines, upwardlydeparted from

that level, then and ultimately deviated from

the guidelines, sentencing Roach to sixty

months of imprisonment and three years ofsupervised release. Roach argues that his sentence violates the Constitution and is unreasonable. We affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published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.
2

I.

Roach was a district attorney when he

pleaded guilty to one count of possession of a

firearm by a drug user or addict. He became

addicted to and used methamphetamine in the

final months of 2004. He was arrested in

January 2005 carrying a briefcase containing

two firearms, in addition to which he also possessed thirty-three other guns.

The district court calculated Roach’s sentence by starting with the base offense 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 firearms pursuant to

§ 2K2.1(b)(1)(C), and two points for abusing

a position of trust pursuant to § 2K2.1(b)(5).

The level was decreased three points because

Roach had accepted responsibility.

After calculating the correct offense level,

the court departed two points upward for

abuse of a position of trust pursuant to

§ 5K2.0(a)(3), resulting in a final offense level

of 21 and a guideline range of 37-46 months.

Finding that the nonmandatory guidelines

range did not adequately address the seriousness of the offense, the court imposed a nonguideline sentence of 60 months of imprisonment, 14 months above the final offense level.

Roach initially appealed his sentence on

seven grounds, then abandoned his third and

fourth grounds. We address each of the remaining grounds individually.

II.

Roach challenges his sentence on two constitutional grounds. First, he argues that the

district court violated the ex post facto and

due process provisions bytreating the sentencing guidelines as merely advisory and not

mandatory. Second, he argues that the law to

which he pleaded guilty is unconstitutional

because it violates equal protection and due

process principles.

A.

Roach contendsthat the decision to deviate

from the sentencing guidelines violates the

Constitution’s ex post facto and due process

provisions. He notes that on the date that he

committed this offense, the then-mandatory

guidelinesset themaximumstatutorysentence.

Though in United States v. Booker, 543 U.S.

220 (2005), the Court held that the guidelines

are only advisory, Roach avers that the remedial portion of Booker’s holdingSSi.e., the

portion rendering the guidelines nonmandatorySSmay not be applied to his case without violating the ex post facto and due process

provisions of the Constitution. Also, he argues that facts increasing hissentence must be

proven to a jury or admitted, despite the fact

that after Booker, judges are entitled to find

sentencing facts by a preponderance of the

evidence. See United States v. Mares, 402

F.3d 511, 517 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005).

Fifth Circuit precedent rules out Roach’s

position, because we have consistently followed Justice Breyer’s instruction in Booker

that “we must apply today’s holdingsSSboth

the Sixth Amendment holding and our remedial interpretation of the Sentencing ActSSto

all cases on direct review.” Booker, 543 U.S.

at 224. Accord United States v. Austin, 432

F.3d 598, 599 (5thCir. 2005); United States v.

Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).

Our decision in Austin deals with the same

situation we encounter here: Sentences based

on advisoryguidelines do not implicate the due

process or ex post facto protections. Id. at

599. Austin also made plain that “the specific
3

division of labor between judge and jury” does

not affect whether a sentence imposed after

Booker is unconstitutional. Id. at 600.

B.

Roach argues that 18 U.S.C. § 922-

(g)(3)SSthe law under which he was convictedSSis unconstitutional because it violates the

Constitution’s Equal Protection Clause and

substantive due process. That provision

states the following:

It shall be unlawful for any person . . . who

is an unlawful user of or addicted to any

controlled substance (as defined in section

102 of the Controlled Substances Act (21

U.S.C. 802)) . . . to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Roach argues that the right to keep and bear

arms is fundamental, requiring that we apply

strict scrutiny in determining whether a law

infringing on the right violates equalprotection

or due process.

We review Roach’s challenge to the constitutionality of § 922(g)(3) for plain error,

because Roach did not challenge § 922(g)(3)’s

constitutionality in the district court. United

States v. Coil, 442 F.3d 912, 915-16 (5th Cir.

2006) (citing United States v. Knowles, 29

F.3d 947, 950 51 (5th Cir. 1994)). “A conviction based upon an unconstitutional statute is

both ‘plain’ and ‘error.’” Id. at 916 (citing

Knowles, 29 F.3d at 951). 

Section 922(g)(3) does not violate theConstitution’s equal protection or substantive due

process provisions,so the district court did not

commit plain error by enforcing the statute. A

drug user does not have a fundamentalright to

keep and bear arms, so § 922(g)(3) must only

survive rational basis review, and it does.

“[T]he Second Amendment’s right to bear

arms is subject to ‘limited, narrowly tailored

specific exceptions or restrictions for particular

cases that are reasonable and not inconsistent

with the right of Americans generally to individually keep and bear their private arms as

historically understood in this country.’”

United States v. Patterson, 431 F.3d 832, 835

(5th Cir. 2005) (quoting United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001)).

Though we have not specifically reached the

question whether § 922(g)(3) violates equal

protectionorsubstantive due process, we have

held that several of § 922(g)’s other specific

exceptionsto 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 that position, explicitly affirming

§ 922(g)(3) as a constitutional exception to the

Second Amendment: 

Prohibiting unlawful drug users from possessing firearmsis not inconsistent with the

1 E.g., Emerson, 279 F.3d at 261 (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 (6thCir. 1999) (holding that personssubject to

domestic violence protective orders are not a

suspect class and that the statute does not implicate

a fundamental right); United States v. McKenzie,

99 F.3d 813, 817-18 (7th Cir. 1996) (same, for

felons in possession).
4

right to bear arms guaranteed by the Second Amendment as construed in Emerson

and Everist. Like the classes of criminals in

Emerson and Everist, unlawful users of

controlled substances pose a risk to society

if permitted to bear arms. 

Patterson, 431 F.3d at 836.

Patterson’s conclusion is sufficient to defeat Roach’s equal protection and due process

claims. Because drug users and addicts have

no fundamentalright to bear arms, § 922(g)(3)

does not interfere with a fundamental right, so

we do not apply strict scrutiny.2

Though he tries, Roach cannot rely on Emerson to establish that Second Amendment

rights are fundamental, because we foreclosed

that notion in Darrington, 351 F.3d at 635: 

Again, Emerson is a carefully and laboriously crafted opinion, and if it intended to

recognize that the individual right to keep

and bear arms is a ‘fundamental right,’ in

the sense that restrictions on this right are

subject to ‘strict scrutiny’ by the courts and

require a ‘compelling state interest,’ it

would have used these constitutional terms

of art.

Under a rational basis review, § 922(g)(3) is

constitutional, because Congress has an interest in keeping guns out of the hands of drug

users, and § 922(g)(3) is rationally related to

this interest.3 Thus, Roach was convicted under a constitutional statute, so his second

ground for appeal fails.

III.

Roach presents three questions regarding

the sentence itself. He challenges the upward

departure, the reasons for imposing a nonguideline sentence, and the extent of the deviation from the sentence calculated under the

guidelines.

Even after 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 the district

court’s findings of fact related to sentencing

unless they are clearly erroneous. United

States v. Creech, 408 F.3d 264, 270 n. 2 (5th

Cir.), cert. denied, 126 S. Ct. 777 (2005).

The district court ultimately deviated from

the guidelines, so Roach’s sentence is a nonguideline sentence.4 We review non-guideline

sentencesfor reasonableness. Smith, 440 F.3d

at 706. “Though flexible, the reasonableness

standard is 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 United States

v. Mares, we adopted the phrase ‘non-Guideline

sentence’to expressthis distinction. 402 F.3d 511,

519 n.7 (5th Cir. 2005).”).
5

court’s post-Bookersentencing discretion and

the reasonableness inquiry on appeal must be

guided by the sentencing considerations set

forth in 18 U.S.C. § 3553(a).” Id. (citing

Booker, 125 S. Ct. at 766.). Though we ultimatelyreview the sentence for reasonableness,

we still must review the District Court’s upward departure, because “[w]ithout a properly-calculated Guideline range, we cannot ensure that the disparity between [the] sentence

and the Guideline range is warranted.” Id. at

706 n.2. Thus, we begin by reviewing the

two-point upward departure.

A.

“In evaluating both a decision to depart and

the extent of the departure, we review for

‘abuse of discretion.’” Id. at 707 (citing United States v. Saldana, 427 F.3d 298, 308 (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 

the guidelines do not adequately address a

public official betraying the public trust and

the seriousness of the offense. The Court

finds the defendant had 2 loaded guns and

a stun gun in his briefcase in the Courtroom, 2 loaded guns and a stun gun in his

office and possessed a total of 35 guns.

Drug use is a course of conduct that is out

of bounds and unscrupulous. A 2-level

increase is added for abuse of trust.

Roach claims that the court based its upward departure on impermissible factors. We

disagree.

Roach’s first complaint is that considering

his position as a public official and his betrayal

of the public trust is an impermissible reason

for departing from the guidelines. He cites

two cases in which this court noted that a

sentencing court cannot consider a defendant’s

socio-economic status. See United States v.

Hatchett, 923 F.2d 369, 374 (5th Cir. 1991);

United States v. Stout, 32 F.3d 901, 903 04

(5th Cir. 1994). Other decisions of this court

lend some support to Roach’s position. See

United States v. Brunson, 915 F.2d 942, 943

(5th Cir. 1990); United States v. Harrington,

82 F.3d 83, 87 (5th Cir. 1996). In Brunson,

we recognized, though ultimately ignored

under a plain error review, the merit of an assistant district attorney’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. See Brunson, 915 F.2d at

943-44. In Harrington, we stated that an attorney’s position as an officer of the court was

not grounds for an upward departure. See

Harrington, 82 F.3d at 87.

The district court’s decision in Roach’s

case, however, is different from those in Hatchett, Stout, Brunson, and Harrington. Here

the court did not upwardly depart merely because ofRoach’ssocio-economic status or position in public office, but because he betrayed

the public trust. In United 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 ofthat position. There, we explained

that

in certain cases, law enforcement experience is an acceptable reason to depart upwards. In the instant case, Wade abused

his position as sheriff to further his drug

manufacturing conspiracy. For example,

Wade passed along information regarding

future investigations to coconspirators;

seized drug manufacturing equipment that
6

was to be used as evidence in another drug

case; convinced the Hardin County Sheriff

to release Guillory, a coconspirator, from

jail; had Guillory released by the Houston

Police Department following an arrest; recruited Duhon, another coconspirator, to

be a deputy sheriff; removed meth oil from

the Sheriff’s office; and had Baker’s parole

supervision transferred to Orange County.

Given Wade’s egregious behavior in abusing his position as sheriff, the district judge

reasonably relied upon his position as sheriff as a factor 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 prosecuting others for the same behavior, and he

consistently abused his office. For instance, a

Texasstate trooper, Jason Henderson, testified

at the sentencing hearing that Roach had tried

to bribe him and another trooper to work for

Roach by offering them a share of seized

funds. Thus, just as this court permitted an

upward departure in Wade based on egregious

abuse of a public office, the district court did

not err by considering Roach’s betrayal of

public trust.

As a second argument, Roach claims that

the district court impermissiblyfactored in“the

seriousness of the offense.” He objects to this

factor, because the “seriousness” of his crime

is already accounted for in the base level of the

offense and because “seriousness” is not a

sufficiently specific reason. 

The district court, however, provided a specific finding that makes Roach’s offense more

seriousthan the offense specified in the guidelines, and the finding is not clearly erroneous.

The court found that Roach’s abuse of the

public trust made his offense more seriousthan

the guidelines, without an upward departure,

permit.

Roach advances various theories to try to

exclude the findings of fact underlying the district court’s decision. His argument that he

was authorized to possess guns as a law enforcement officer is of no consequence, because the grounds for an upward departure do

not have to be illegal or criminal conduct.

United States v. Arce, 118 F.3d 335, 340-41

(5th Cir. 1997). Also, although Roach correctly notes that drug use is not usually a reason for upward departure, United States v.

Williams, 937 F.2d 979, 983 (5th Cir. 1991),

here the drug use was extraordinary: The

district court explained that Roach prosecuted

people for drug use while using drugs. In sum,

the district court did not abuse its discretion in

calculating the guidelines sentence using an

upward departure.

B.

Roach arguesthat the fourteen-monthdeviation from the calculated guideline range is

unreasonable because (1) the reasons cited by

the district court for deviation are not permissible, and (2) the evidence failsto establish any

legal basis for the deviation. Also, Roach

urges that the extent of the deviation is unreasonable.

The court, after calculating the guideline

sentence, deviated from the guidelines and imposed a discretionary sentence because “the

guidelines do not adequately address the conduct in this case” in light of the fact that Roach

engaged in “a course of out of bounds and

unscrupulous behavior” that included

(1) carrying and possessing loaded guns as a

district attorney and drug addict and (2) be-
7

havior involving office staff and Department of

Public Safety officers. We review the district

court’s statement of reasons for deviating 

to determine whether, as a matter of substance, the sentencing factors in section

3553(a) support the sentence . . . . A

non-Guideline sentence unreasonably fails

to reflect the statutory sentencing factors

where it (1) does not account for a factor

that 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

the sentencing factors.

Smith, 440 F.3d at 707-08.

Roach claims that his position as district

attorney and his use of drugs are impermissible

factors, but, as we have explained, the district

court did not err in considering them. Roach

further maintains that his behavior involving

the office staff and Department of Public Safety officers was not illegal, and the evidence offered as proof of that behavior was not verifiable or reliable. 

We have already noted that conduct does

not need to be illegal to be considered in deviations, so Roach’s objection on that ground

fails. See United States v. Arce, 118 F.3d 335,

340-41 (5th Cir. 1997). His claim that allegations about his behavior were not verifiable or

reliable also is without merit, because the allegations are contained in the presentence report

(“PSR”), and PSR’s generally bear sufficient

indicia of reliability to be considered by a district court; the defendant bears the burden of

showing the information is untrue or unreliable

ifthe court relies on it. United States v. Rome,

207 F.3d 251, 254 (5th Cir. 2000). Roach did

not present rebuttal evidence, and the district

court reasonably relied on the PSR and did not

consider impermissible factors or facts when

deviating from the guidelines.

The stated reasons for deviating demonstrate that the court considered § 3553(a)’s

factors. Section 3553(a)(1) instructs the court

to consider the nature and extent of the offense and the position of the defendant, and

the district court’s reason for departing does

just that: It specifically notes why the nature

of the offense is egregious. Also, § 3553(a)-

(2)(A) instructs the court to consider whether

the sentence reflects the seriousness of the

crime. Here, the court deviated specifically

because the guideline sentence did not reflect

the seriousness of the crime; the court correctly considered § 3553(a)’s factors. 

Roach arguesthat the court did not specifically indicate what factors in § 3553(a) it considered in assessing the deviation. Yet, a

court need not recite all the 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

ground for appeal. The deviation is reasonable, so Roach cannot prevail on that claim.

The sentence is only fourteen months more

than is allowed under the guidelines; we have

consistently upheld sentences of greater

lengths in analogous cases. See, e.g., Smith,

417 F.3d at 491-93. “When the district court

imposes a non-Guideline sentence, it ‘must

more thoroughly articulate itsreasons’ for doing so, and the greater the difference between

the sentence and the Guideline range, ‘the

more compelling the justification based on factors in section 3553(a) must be.’” United

States v. Guidry, 2006 U.S. App. LEXIS

22038, at *5 (5thCir. Aug. 23, 2006) (quoting
8

Smith, 440 F.3d at 707). Roach engaged in

particularly egregious abuses of his office, so

sixty months is not unreasonable based on the

facts, and the district court’s statement of reasons is adequate under our prevailing standards.

The judgment of sentence is AFFIRMED.