USA v. James Rogers

Filing

Case: 09-20595

Document: 00511196975

Page: 1

Date Filed: 08/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20595 S u m m a r y Calendar August 6, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J A M E S GORDON ROGERS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-13-1

B e fo r e REAVLEY, STEWART and SOUTHWICK, Circuit Judges. P E R CURIAM:* J a m e s Gordon Rogers appeals the 120-month sentence imposed following h is guilty plea conviction for 14 counts of passing fictitious securities, namely, c e r t ific a t e s of deposit (CDs). Rogers presents three arguments: (1) that the d is t r ic t court erred by imposing the two-level abuse of trust enhancement p u r s u a n t to U.S.S.G. § 3B1.3; (2) that the district court erred by failing to a d e q u a t e ly explain its reasons for varying upward from the 46-to-57-month g u id e lin e s range of imprisonment and by failing to address the mitigation
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511196975 Page: 2 No. 09-20595

Date Filed: 08/06/2010

a r g u m e n t s he presented; and (3) that his sentence is substantively unreasonable b e c a u s e it is greater than necessary to achieve the goals of 18 U.S.C. § 3553(a). In challenging the abuse of trust enhancement, Rogers first contends that w h e t h e r he abused a position of trust is a legal issue, reviewed de novo. However, the issue of de novo review is foreclosed, and instead we review the d is t r ic t court's application of § 3B1.3 to the facts for clear error. See United S ta te s v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008). S e c t io n 3B1.3 of the Guidelines provides in pertinent part that "[i]f the d e fe n d a n t abused a position of public or private trust . . . in a manner that s ig n ific a n t ly facilitated the commission or concealment of the offense, increase b y 2 levels." Rogers was the president and chief executive officer (CEO) of his c o m p a n y , which he portrayed to his victims was a tax business and a financial p la n n in g business. Rogers directly approached his victims to invest their funds in t o his company. When he ran out of money, he then persuaded those investors a n d other victims to purchase CDs from his company, which he represented had h ig h rates of return. It was relatively easy for Rogers, who had unfettered d is c r e t io n over the investment funds, to conceal his wrongdoing by falsely a s s u r in g his victims that all their money had been placed in CDs by supplying t h e m with fraudulent records of those CDs and by falsely assuring his investors t h a t his company was profitable by paying them small dividends. His position o f trust, as president and CEO of his company, put him in a position superior to t h a t of the general public to obtain and use his victims' funds for his own use a n d to pay other investors dividends. See United States v. Buck, 324 F.3d 786, 7 9 5 (5th Cir. 2003). The district court did not err in overruling Rogers' objection t o the § 3B1.3 enhancement. R o g e r s ' second claim, that the court procedurally erred by not adequately e x p la in in g its reasons for varying upward and by failing to address his m it ig a t io n arguments, also fails. Contrary to Rogers' assertions, the district c o u r t carefully weighed the § 3553(a) factors, emphasized that each case must 2

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b e considered individually, and articulated sufficiently compelling reasons to ju s tify the 120-month sentence. The court provided an explicit oral and written e x p la n a t io n for the upward variance that included fact-specific reasons such as t h e length of the scheme to defraud, the striking similarity between the instant o ffe n s e and Rogers' prior security fraud offense, and the profound negative effect t h a t the offense had on the victims. The district court also explained that the v a r ia n c e was necessary to reflect the seriousness of the offense, provide just p u n is h m e n t , and afford actual deterrence to future criminal conduct. Additionally, the court read and listened to the mitigation arguments presented b y Rogers and his counsel and, in its statement of reasons, cited Rogers' history a n d characteristics as one of its reasons for imposing the sentence. The district c o u r t's reasons, tied to specific facts and particular § 3553(a) factors, were s u ffic ie n t to justify the variance and the extent and satisfy the requirement that t h e court give reasons to permit meaningful appellate review. See United States v . Smith, 440 F.3d 704, 707 (5th Cir. 2006). Accordingly, Rogers has not shown a n y procedural error. F in a lly , Rogers has not shown that his sentence is substantively u n r e a s o n a b le . The district court made the required individualized assessment a n d was free to conclude, as it did, that in Rogers' case the guidelines range gave in s u ffic ie n t weight to some of the sentencing factors, including the seriousness o f the offense, the need to provide just punishment, and the need for deterrence. See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008); § 3553(a). Furthermore, though Rogers lists a set of factors he contends the court did not c o n s id e r , he presents no convincing argument that any of these is substantial e n o u g h that it should have been weighted more heavily. See Smith, 440 F.3d at 7 0 8 (5th Cir. 2006). T h e district court's judgment is AFFIRMED.

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