United States v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 20, 1998
• Docket: 97-2124
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 20 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-2124 (D.C. No. CR 96-509) LLOYD ROGERS, (D. N.M.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant-appellant Lloyd Rogers, along with codefendant Denton

Thomason, entered a plea of guilty to the charge of bank robbery in violation of

18 U.S.C. § 2113. Defendant’s presentence report recommended a total offense

level of twenty-one and a criminal history category of I, resulting in a sentencing

guideline range of thirty-seven to forty-six months’ imprisonment. The court

sentenced defendant to the high end of the range, forty-six months. Codefendant

Thomason’s presentence report also recommended a total offense level of

twenty-one, but with a criminal history category of III, establishing a guideline

range of forty-six to fifty-seven months’ imprisonment. The court sentenced

Thomason to the low end of the range, forty-six months.

Defendant appeals, asserting that the court abused its discretion by

sentencing the two defendants to the same term of imprisonment despite the

difference in their relative criminal history categories. For the following reasons,

we determine that we are without jurisdiction to entertain this appeal.

Pursuant to 18 U.S.C. § 3742(a), a sentence imposed within the guidelines

may not be appealed unless it “(1) was imposed in violation of law; (2) was

imposed as a result of an incorrect application of the sentencing guidelines; . . .

(3) is greater than the sentence specified in the applicable guideline range . . .; or

(4) was imposed for an offense for which there is no sentencing guideline and is

plainly unreasonable.” In United States v. Garcia, 919 F.2d 1478, 1481 (10th Cir.

-2- 1990), this court interpreted § 3742(a) as prohibiting review of sentencing

decisions which are within an admittedly correct guideline range unless

challenged as facially illegal, improperly calculated, or based on clearly erroneous

findings of fact.

Here, defendant does not claim any facial illegality, does not challenge the

court’s calculation of his guideline range, and does not challenge the accuracy of

the facts relied on by the sentencing court. Instead, defendant’s only argument is

that, in light of the disparity in the defendants’ criminal history categories, the

district court’s decision to sentence the two defendants to the same term of

imprisonment was an abuse of discretion.

In Garcia, we opined that “‘[s]entences within the Guidelines may be

deemed to be reasonable and within the exclusive discretion of the sentencing

court solely because of the Commission’s blessing of the permissible range.’”

919 F.2d at 1481 (quoting United States v. Colon, 884 F.2d 1550, 1555 (2d Cir.

1989)); see also United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997)

(holding that district courts have broad discretion in imposing a sentence within

the range prescribed by Congress).

-3- Accordingly, because we discern nothing illegal, improper, or erroneous in

the district court’s sentencing decision, we are without the power to disturb it,

and defendant’s appeal is DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge

-4-