United States v. Rogers
696 F. App'x 878
10th Cir.2017Background
- Rogers pled guilty to a drug conspiracy and was sentenced as a career offender under § 4B1.1 to 188 months.
- The PSR classified Rogers as a career offender based on two California drug offenses and one crime of violence, producing a 188–235 month guideline range.
- At sentencing, the court denied a downward variance and imposed the bottom of the range, 188 months.
- Rogers and his counsel filed an Anders brief arguing only a potential issue regarding the career-offender designation; the government joined that there were no non-frivolous issues.
- The panel reviewed for plain error because Rogers did not object at sentencing to the career-offender designation; the court analyzed the predicate offenses under the categorical and, for divisible statutes, the modified categorical approach.
- The court ultimately held there was no plain error and affirmed that the two qualifying offenses supported the career-offender designation; it discussed the divisibility of § 11378 and applied the modified categorical approach, finding no error that affected the outcome
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rogers’ career-offender designation was proper | Rogers argues the designation may be improper | Rogers' designation supported by prior offenses | Career-offender designation affirmed (no plain error) |
| Whether §11378 is divisible and subject to the modified categorical approach | District court failed to apply modified categorical approach / Shepard documents | §11378 is divisible; records permit modified approach | §11378 is divisible; conviction under §11378(5) qualifies as a controlled-substance offense under §4B1.2(b) via modified categorical approach |
| Whether any district-court error regarding examination of Shepard-type documents affected Rogers’ substantial rights | Error in not consulting Shepard documents | No impact on outcome given two qualifying predicates | No plain error; substantial rights not affected; two predicates still qualify |
Key Cases Cited
- Karam v. United States, 496 F.3d 1157 (10th Cir. 2007) (standard for reviewing career-offender determinations; de novo/legal questions on applicability)
- Ruiz-Terrazas v. United States, 477 F.3d 1196 (10th Cir. 2007) (plain-error review when no objection to sentence procedure was raised)
- Descamps v. United States, 133 S. Ct. 2275 (2013) (modified categorical approach for divisible statutes)
- Shepard v. United States, 544 U.S. 13 (2005) (documents courts may consult in applying the modified categorical approach)
- Titties v. United States, 852 F.3d 1257 (9th Cir. 2017) (discusses use of the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for divisible statutes)
- Bennett v. United States, 823 F.3d 1316 (10th Cir. 2016) (requires access to Shepard-approved documents when applying.modified categorical approach)
- United States v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002) (supports categorization of California §11359 as a controlled-substance offense)