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The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3276

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United States of America,

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri. 

Rodger Roberson, also known *

as Pistol, also known as P, * [UNPUBLISHED]

also known as D, * 

*

Defendant-Appellant. *

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Submitted: June 8, 2009

Filed: June 22, 2009

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Before BYE, HANSEN, and BENTON, Circuit Judges.

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PER CURIAM.

Rodger Roberson appeals the district court’s1

 sentence of 120 months

imprisonment following his plea of guilty to being a Felon in Possession of a Firearm

in violation of 18 U.S.C. § 922(g)(1). We affirm.
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I

On October 14, 2007, an off-duty police officer was driving with his girlfriend

in his personal vehicle, a Chevrolet Cavalier, in St. Louis, Missouri. As he was

stopped at a traffic light before entering Interstate 70, the police officer observed a

silver Chevrolet Tracker, operated by Roberson, approach from behind. Roberson did

not know the driver of the Cavalier was a police officer. As they entered the entrance

ramp onto Interstate 70, Roberson pulled next to the Cavalier and retrieved a .38

caliber revolver from inside the car. For no discernable reason, Roberson pointed the

revolver at the passenger window of the Cavalier and fired three times, shooting out

the passenger side window and shooting two holes in the passenger side door of the

Cavalier. Remarkably, the police officer and his girlfriend were not physically

injured. The police officer returned fire, injuring a passenger in the backseat of the

Tracker, and Roberson drove away.

Later that morning, St. Louis police detectives were called to Barnes Jewish

Hospital for a reported gunshot victim. The victim stated that he was riding in the

backseat of a silver Chevy Tracker being operated by Roberson when he was shot.

According to the victim, he, Roberson, and two other people were returning from East

St. Louis, Illinois, and Roberson transported the revolver he used in the shooting

across state lines. Roberson apparently became belligerent at the driver of the

Cavalier, and, despite attempts by the other occupants of the car to calm Roberson

down, he shot at the Cavalier. When interviewed, the other two occupants of the car

confirmed this version of the events.

A review of Roberson’s criminal history revealed that he has previously been

convicted in the Eastern District of Missouri of possession of a firearm with an

obliterated serial number. That conviction stemmed from an incident on May 28,

2006, when police officers attempted to arrest Roberson for traffic violations.

Roberson led the officers on a high-speed chase, which ended with Roberson crashing
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his vehicle. As the officers pulled Roberson from his vehicle, they discovered a .38

caliber revolver with an obliterated serial number. Roberson was sentenced in the

Eastern District of Missouri to ten months imprisonment and two years of supervised

release.

Based on this prior felony conviction, Roberson was indicted with being a felon

in possession of a firearm. Following his indictment, Roberson’s supervised release

for his prior felony conviction was revoked, and he was sentenced to eighteen months

imprisonment. On July 22, 2008, Roberson pleaded guilty to the felon-in-possession

charge. Pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 2K2.1(c)(1)(A), which requires a court to cross reference a defendant’s base offense

level if the defendant used or possessed a firearm in conjunction with another crime

for which the offense level is higher, Roberson’s base offense level was 27,

correlating with the base offense level for attempted murder. Roberson’s offense level

was adjusted down to 24 for his acceptance of responsibility. Roberson’s Criminal

History Category was IV, resulting in part from an increase because Roberson

committed the instant offense within two years of being released from his prior felony

conviction. This created a Guidelines range of 77 to 96 months imprisonment.

Roberson and the government agreed in the plea agreement to argue for a withinGuidelines sentence to be served consecutively to the eighteen-month sentence

previously imposed for the supervised release violation.

At sentencing, the district judge varied upward and imposed the statutory

maximum of 120 months imprisonment. The court enumerated several reasons for its

sentence:

Usually one prior felony doesn’t like stand out, but here a prior felony

where law enforcement officials attempting to arrest him for violating

traffic laws results in a high speed chase which results in a traffic

accident shows incredible disregard for the safety of law enforcement

and other citizens . . . [A]nd within a matter of months after he is
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released, he commits an act of this violent nature . . . . Protect the public,

I mean one of the hardest things about this is the randomness of the act.

Most crimes are not random. There are very specific victims for very

specific reasons. Rarely do we see such a random act of violence of such

an extreme nature. 

. . . 

[H]e has both, a lack of respect for law enforcement evidenced by his

first conviction and the total random act of violence against an ordinary

citizen, both of which had the possibility of death, to roll a car, cause an

automobile accident because he is leaving, fleeing, a traffic stop or to

open fire into a random vehicle. The possibility of death for people just

doing their job or just driving down the street is not an acceptable risk,

and I don’t think the guidelines in this case fully took into consideration

the nature, the short nature, of his history being as violent as it is as risky

to law enforcement and citizens; I mean the ultimate consequence of

losing someone’s life over what, a traffic violation. You didn’t like the

way someone was driving.

The court also noted that one kilogram of heroin or one thousand marijuana plants

would require a mandatory minimum of 120 months imprisonment.

Roberson now appeals, arguing the district court’s upward variance was

unreasonable.

II

We review Roberson’s sentence for an abuse of discretion and consider both

the procedural soundness and substantive reasonableness of the sentence imposed.

See United States v. Zech, 553 F.3d 663, 665-66 (8th Cir. 2009) (standard of review).

Roberson does not argue the district court committed any procedural error, only that

it imposed a substantively unreasonable sentence. We review “the ultimate sentence,

whether inside or outside the guidelines range, for reasonableness under an abuse of
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discretion standard.” United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.

2009). An abuse of discretion may occur “when (1) a court fails to consider a relevant

factor that should have received significant weight; (2) a court gives significant weight

to an improper or irrelevant factor; or (3) a court considers only the appropriate factors

but in weighing those factors commits a clear error of judgment.” United States v.

Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (internal quotation omitted). A district

court does not automatically abuse its discretion by varying upward from the advisory

Guidelines range. In such cases, we “may consider the extent of the deviation, but

must give due deference to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.” Gall v. United States, 128 S. Ct. 586, 597

(2007).

Roberson argues the district court’s rationale for varying upward was based on

the violent nature of the instant offense and his prior felony conviction, both of which

were already taken into account in calculating his Guidelines range. Additionally,

Roberson argues his sentence creates unwarranted sentencing disparities and was

based on the district court’s improper consideration of mandatory minimum sentences

for drug offenses.

Considering the totality of the evidence, however, we conclude the district court

did not abuse its discretion in sentencing Roberson to the statutory maximum of 120

months imprisonment. The district court concluded the Guidelines did not take into

account Roberson’s violent tendencies, particularly his deliberate disregard for the

safety of others during random acts of violence. While it is true the Guidelines

accounted for the seriousness of the instant offense and Roberson’s recent conviction,

the district court did not abuse its discretion in concluding the Guidelines did not

account for the extreme, dangerous, and random nature of the acts. Specifically,

Roberson embarked on a dangerous high-speed car chase that led to his prior

conviction, and, within months of being released from prison for that offense, he

attempted to kill two people in another vehicle apparently because he was upset at the
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manner in which they were driving. Moreover, given the danger Roberson poses to

society, his 120-month sentence does not create unwarranted sentencing disparities

with others convicted of being a felon in possession of a firearm. Finally, although

the district court did briefly mention the mandatory minimum sentences for drug

offenses, it is clear from the record the court did not base its sentence on any improper

considerations. Rather, the court gave a lengthy explanation, excerpted above,

justifying Roberson’s sentence based on the nature of the offense and his criminal

history. In sum, we conclude the district court did not abuse its discretion in

sentencing Roberson.

III

Accordingly, we affirm.

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