United States v. Robert Rogers
551 F. App'x 174
5th Cir.
2014
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UNITED STATES of America, Plaintiff-Appellee v. Robert Arthur ROGERS, Defendant-Appellant.

No. 13-10430

United States Court of Appeals, Fifth Circuit.

Jan. 8, 2014.

550 Fed. Appx. 174

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

Summary Calendar.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

James Warren St. John, Esq., Fort Worth, TX, for Defendant-Appellant.

PER CURIAM:*

Robert Arthur Rogers challenges his 210-month sentence following his guilty-plea conviction for possession with intent to distribute methamphetamine. For sentencing purposes, Rogers was held accountable for over 1.8 kilograms of methamphetamine. Based on an offense level of 37 and a criminal history category of I, his advisory sentencing range under the Sentencing Guidelines was 210 to 262 months’ imprisonment. As noted, he was sentenced at the bottom of the range.

Although Rogers contends the district court erred in increasing his offense level for a leadership role, he offers nothing to support this assertion. Accordingly, the issue is deemed abandoned. See FED. R. APP. P. 28(a)(8); (citations omitted).

Rogers also contends his sentence is unconstitutionally excessive because it is grossly disproportionate to the severity of his crime. Because Rogers did not object to his sentence in district court, review is limited to plain error. See . Under the plain-error standard, Rogers must show a clear or obvious forfeited error that affected his substantial rights. See . If he makes such a showing, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. See

Rogers’ claim fails because there is no clear or obvious error. Along that line, the Eighth Amendment prohibits a sentence that is grossly disproportionate to the severity of the crime for which it is imposed. . The scope of review for Eighth Amendment proportionality challenges is narrow. (citation omitted). The first step is a threshold comparison between the gravity of the offense and the severity of the sentence. (citation omitted). If the reviewing court concludes the sentence is not grossly disproportionate to the gravity of the offense, then the inquiry is complete. Only if the reviewing court determines the sentence is grossly disproportionate to the offense will the court proceed to the second step, a comparison between the defendant‘s sentence with sentences imposed for similar crimes in the same jurisdiction, and in other jurisdictions. (citation omitted).

This court has identified , as a “benchmark” case in a proportionality analysis. See , abrogated on other grounds by , as recognized in . In , the Supreme Court upheld a life sentence for an offender‘s third nonviolent felony offense of obtaining money by false pretenses. . In , this court determined a non-habitual offender‘s 30-year sentence for using or carrying a firearm in furtherance of a drug-trafficking offense was not excessive when measured against benchmark, because the gravity of the offense was greater and the penalty less severe than in . . In , the Supreme Court affirmed, in the light of , a life sentence for possession of a large quantity of cocaine. .

Using and its progeny as benchmarks, Rogers’ 210-month sentence is not grossly disproportionate to his offense. The gravity of Rogers’ offense is greater, and the sentence less severe, than in . See, e.g., . Because Rogers has not shown his sentence is grossly disproportionate to his offense, the inquiry is complete.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee v. Benito URBINA, Defendant-Appellant.

No. 13-40183

United States Court of Appeals, Fifth Circuit.

Jan. 8, 2014.

550 Fed. Appx. 176

Before WIENER, OWEN, and HAYNES, Circuit Judges.

Summary Calendar.

Julia Bowen Stern, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.

PER CURIAM:*

Defendant-Appellant Benito Urbina appeals from his sentence following the revocation of his term of supervised release. His only contention is that the district court impermissibly considered the need to promote respect for the law and the need for just punishment when imposing sentence.

Because Urbina failed to object in the district court, our review is for plain error. . To prevail under the plain error standard, Urbina “must show an error that is clear or obvious and affects his substantial rights.” . If he makes such a showing, we may exercise our discretion to correct the error, “but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Among the factors a district court should consider when imposing sentences

Notes

*
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. 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.
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