On appeal from The United States District Court for the Western District of Oklahoma - Oklahoma City ">

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Date: 11-21-2021

Case Style:

United States of America v. Bobby Von Rogers

Case Number: 19-6083

Judge: Bobby R. Baldock

On appeal from The United States District Court for the Western District of Oklahoma - Oklahoma City

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Denver, CO - Best Criminal Defense Lawyer Directory


Denver, CO - Criminal defense lawyer represented defendant with one count of being a felon in possession of a firearm.

Defendant, a previously convicted felon, has a long criminal history due in
large part to drug and alcohol abuse. Defendant sustained upward of a dozen
criminal convictions between 1999 and 2016. In the midst of a domestic dispute in
April 2018, Defendant’s wife called her mother to pick her and her children up from
the house. When Defendant’s mother-in-law attempted to leave the house with
Defendant’s wife and children, Defendant grabbed his wife’s arm and swung her
around in the front yard while she was holding their newborn son in the other arm.
Obviously traumatized, Defendant’s ten year old daughter ran away from the home.
Appellate Case: 19-6083 Document: 010110287323 Date Filed: 01/13/2020 Page: 2
(She was later located at a nearby residence visibly shaken and crying). When
Defendant’s mother-in-law attempted to intervene, Defendant grabbed her by the
back of the neck and pushed her onto the hood of her car. Defendant pulled out a
firearm, put the barrel to his mother-in-law’s head and asked her “if she wanted to
die.” The women, the baby, and two other small children belonging to Defendant’s
wife fled the scene while calling 911. Officers subsequently located a 9mm pistol
next to the fence of a nearby home. The firearm chamber was not loaded but an
attached magazine was capable of holding sixteen rounds of ammunition. (The
magazine actually held fifteen rounds). Both Defendant’s wife and mother-in-law
identified the firearm as being the one Defendant possessed.
Following a sentencing hearing at which the district court, among other things,
heard the testimony of Defendant’s mother-in-law and viewed body camera video
footage from the responding officers, the court commented:
Unfortunately, Mr. Rogers, you stand before me as a repeat offender, a
violent repeat offender involving drugs, guns, and violence. I don’t
know how many times you have been convicted of either assault or
battery or domestic violence or had protective orders entered against
you. And then the night in question here, we’re just lucky someone
wasn’t killed. Obviously, you had a gun and you pulled it on somebody
and stuck it to their head. Just thank goodness that woman wasn’t
killed that night or we’d be here . . . in a much more serious situation
than we are.
I think—when considering 18 U.S.C. § 3553, I think primarily the
public needs to be protected against you. I think . . . your children and
the women that you associate with need to be protected from you, and
I’m going to give you the maximum sentence because of that.
Appellate Case: 19-6083 Document: 010110287323 Date Filed: 01/13/2020 Page: 3
As noted, the district court in its statement of reasons for the maximum sentence also
explained that three other § 3553(a) factors justified Defendant’s sentence.
* * *
On appeal, Defendant first asserts his sentence is unreasonable because the
district court failed to consider the aggravating factors cited by the district court
were already taken into account by the advisory sentencing guidelines. But we have
observed on multiple occasions, most recently in 2018, that district courts have broad
discretion to consider particular facts in fashioning a sentence under § 3553(a), even
when those facts are already accounted for in the advisory guideline range. United
States v. Barnes, 890 F.3d 910, 921 (10th Cir. 2018). Defendant’s criminal history
classification of Category IV, while indicative of the seriousness of Defendant’s
criminal history, did not capture the extent or severity of his prior criminal record,
including his predilection for assaulting women with whom he had relationships.
Similarly, the four level enhancement Defendant received pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B) for using a firearm in connection with the offense of assaulting his
mother-in-law with a deadly weapon did not fully capture the wholly unacceptable
and outrageous conduct of the actual assault. The district court did not abuse its
discretion in concluding that the nature and circumstances of the offense coupled
with the history and characteristics of Defendant justified the upward variance.
Appellate Case: 19-6083 Document: 010110287323 Date Filed: 01/13/2020 Page: 4
Defendant also asserts the district court failed to consider whether the advisory
guideline range overstated the seriousness of his offense. Specifically, Defendant
says the enhanced base offense levels for large capacity magazines in U.S.S.G.
§ 2K2.1(a) is not based on “empirical data or national experience.” Contrary to
Defendant’s assertion, however, the record reflects the court did consider this
argument. Defendant raised this argument both in his sentencing memorandum and
at his sentencing hearing. Prior to pronouncing sentence, the court stated that in
determining the appropriate sentence, it had considered both the sentencing
memorandum and the statements of Defendant’s counsel. See United States v.
Morrison, 771 F.3d 687, 693 (10th Cir. 2014) (district court has broad discretion to
reject policy arguments at sentencing and although the court must state its reasons
for a sentence the appropriateness of the brevity or length of such reasons depends
upon the circumstances). Considering the record as a whole, we are satisfied the
district court considered Defendant’s argument that the guidelines overstated the
seriousness of his offense because such guidelines accounted for the high capacity
magazine, but concluded a combination of other factors outweighed this factor
viewed in isolation, thereby justifying an upward variance.
Lastly, Defendant asserts the district court failed to adequately consider the
circumstances of his upbringing and background. Such evidence certainly may
mitigate the circumstances of an offense. But “[e]vidence of childhood trauma,
Appellate Case: 19-6083 Document: 010110287323 Date Filed: 01/13/2020 Page: 5
psychological issues, or youthful indiscretion is most powerful when accompanied
by signs of recovery.” United States v. Lente, 759 F.3d 1149, 1173 (10th Cir. 2014).
The record in this case illustrates that over the years Defendant has shown little
willingness to address his drug and alcohol problem and change his criminal
behavior. Id. (recognizing mitigating evidence related to upbringing and background
may be “double-edged” because it can also indicate a likelihood of recidivism).
Accordingly, the district court was unwilling to give Defendant yet another
opportunity to change his behavior apart from a lengthy term of imprisonment.
The district court did not abuse its discretion in so deciding.

Outcome: Accordingly, the judgment of the district court is AFFIRMED.

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