USA v. Robert Roop

Filing

OPINION filed : AFFIRMED, decision not for publication. Martha Craig Daughtrey, Authoring Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Raymond M. Kethledge, Circuit Judge. [12-3609, 12-3611]

Case: 12-3609

Document: 006111636148

Filed: 03/28/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0312n.06
Nos. 12-3609/3611
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT S. ROOP,

(12-3609)

Defendant-Appellant,
RICHARD T. ROOP,

(12-3611)

Defendant-Appellant.

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FILED
Mar 28, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO

Before: DAUGHTREY, SUTTON, and KETHLEDGE, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. In these consolidated appeals, the
defendants, brothers Robert Roop and Richard Roop, appeal the sentences imposed by
the district court following their guilty pleas to participation in a drug-manufacturing
conspiracy. Each defendant received an 80-month sentence. We review sentences in
criminal cases for substantive and procedural reasonableness under an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). For the reasons that
follow, we affirm both sentences.

No. 12-3609
Defendant Robert Roop pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine, under 21 U.S.C. § 846. He now contends that the district

Case: 12-3609

Document: 006111636148

Filed: 03/28/2013

Page: 2

Nos. 12-3609/3611
United States v. Roop
court erred in assessing two criminal history points based on a 2003 conviction in state
court that has since been invalidated because he was not notified at the time of sentencing
that he would be subject to “post-release control.” He cites as authority note 6 to USSG
§ 4A1.2, which provides that a conviction that has been reversed or vacated should not be
included in a defendant’s criminal history score. However, his argument is precluded by
State v. Fisher, 942 N.E. 2d 332 (Ohio 2010), which held that the failure to advise of postrelease control invalidates only the post-release control and not the underlying conviction
or the rest of the sentence. See also United States v. Coleman, 655F.3d 480, 485 (6th Cir.
2011) (upholding the inclusion of an Ohio conviction in a defendant’s criminal history after
post-release control was invalidated). Thus, the district court did not err in counting
Robert’s state court conviction when calculating his criminal history score.

No. 12-3611
Defendant Richard Roop pleaded guilty to conspiracy to possess and distribute a
listed chemical, under 21 U.S.C. § 846. He argues that his sentence is substantively
unreasonable because his more culpable co-defendants received the same sentence he
did. However, the district court was not required to consider sentencing disparities
between co-defendants. See United States v. Mitchell, 681 F.3d 867, 883 (6th Cir. 2012).
Moreover, this argument overlooks the fact that Richard was sentenced as a career
offender, which subjected him to a higher guideline range in spite of his lesser role in the

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Case: 12-3609

Document: 006111636148

Filed: 03/28/2013

Page: 3

Nos. 12-3609/3611
United States v. Roop
offense. Thus, the district court did not commit an abuse of discretion in regard to
Richard’s sentence.

AFFIRMED.

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