United States v. Deandre Rogers

670 F. App'x 274

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 1, 2016
• Docket: 16-30230 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Deandre Lamont Rogers pleaded guilty to two-violations of 18 U.S.C. §§ 111 and 1114 based on two separate incidents in which he groped or attempted to grope a female U.S. Postal Worker. His Presen-tenee Investigation Report calculated a guidelines sentencing range of 18 to 24 months and noted (1) several prior convictions based on similar incidents in which Rogers groped or sexually touched women in public, as well as (2) his history of mental illness and suicide attempts. The district court denied Rogers’s motion for a downward variance to time served, granted the Government’s motion for an upward variance, and sentenced Rogers to 48 months of imprisonment based on his history and characteristics, the need for deterrence of criminal conduct, and to protect the public. Rogers now challenges the substantive reasonableness of his sentence, which we review for abuse of discretion. United States v. Diehl, 775 F.3d 714, 724 (5th Cir.), cert. denied, — U.S. —, 136 S.Ct. 213, 193 L.Ed.2d 163 (2015).

The upward variance imposed in this case is “commensurate with the individualized, case-specific reasons provided by the district court” and within the range of upward variances we have affirmed in the past. See United States v. McElwee, 646 F.3d 328, 338, 343-45 (5th Cir. 2011). Although Rogers argues that the district court made “a clear error of judgment in balancing the sentencing factors” by putting too little weight on his mental illness as a mitigating factor and too much weight on his purportedly exaggerated criminal history, he has not demonstrated that the district court abused its discretion. See McElwee, 646 F.3d at 338; Diehl, 775 F.3d at 724.

Rogers also has not shown an unwarranted sentencing disparity between himself and any defendants “with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3563(a)(6). The defendants he offers in comparison are not similarly situated. See United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). The nationwide sentencing statistics on which he relies do not establish an unwarranted sentencing disparity. See United States v. Willingham, 497 F.3d 541, 544-45 (5th Cir. 2007).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.