United States v. Robert Rigsby , 445 F. App'x 838 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0756n.06
No. 10-4189
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT
Nov 09, 2011
UNITED STATES OF AMERICA, )
LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
ROBERT C. RIGSBY, ) OHIO
)
Defendant-Appellant. )
Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Robert C. Rigsby, a federal prisoner, appeals
through counsel the sentence imposed following his guilty plea to a charge of possession of child
pornography.
Rigsby’s presentence report calculated a guidelines sentencing range of 135 to 168 months
of imprisonment, but the statutory maximum for the offense was ten years, which became the
guidelines sentence. The government moved for a downward departure under USSG § 5K1.1, which
resulted in a lower guidelines range of 87 to 108 months. The district court sentenced Rigsby to
sixty months of imprisonment.
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 10-4189
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On appeal, Rigsby argues that 1) he was denied his right to allocute; 2) a revision to USSG
§§ 5H1.3 and 5H1.4 which allows the consideration of mental conditions and physical impairments
should be applied to his sentence; and 3) his sentence is disparate from a similar defendant’s one day
of incarceration.
We review for plain error the claim of denial of allocution because Rigsby failed to object
below. See United States v. Bostic, 371 F.3d 865, 871-73 (6th Cir. 2004). Rigsby suffers from a
hearing impairment. He has no hearing in his left ear, but he has a cochlear implant in his right ear.
He does not know sign language, but he can read lips. Review of the transcripts reveals that Rigsby
was able to participate in the plea proceeding and sentencing. At sentencing, his attorney read a
statement that Rigsby had prepared, as well as making an argument for a lenient sentence. Rigsby
argues that the district court never directly addressed him or asked if he had anything else to say.
No denial of allocution is apparent in this circumstance. Rigsby had prepared his statement
in advance and asked his attorney to read it. In United States v. Thomas, 875 F.2d 559, 561-62 (6th
Cir. 1989), we approved the district court’s invitation to both the defendants and counsel to make
any comments, following which counsel presented argument on defendants’ behalf. Likewise,
Rigsby received an opportunity to allocute, which he accomplished through his prepared statement
read by counsel, in addition to counsel’s argument. There was no plain error.
Rigsby next argues that his sentence should be vacated and remanded so that the district court
can consider his mental condition and physical impairments, under revised USSG §§ 5H1.3 and
5H1.4. The record reflects, however, that the district court considered both Rigsby’s hearing
impairment and his depression in arriving at the sentence (which was substantially below the
guidelines range). Moreover, the revision to USSG § 5H1 has not been declared by the sentencing
No. 10-4189
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commission to be retroactive. See Braxton v. United States, 500 U.S. 344, 348 (1991) (holding that
the sentencing commission has the power to decide whether amendments are retroactive). Therefore,
Rigsby has demonstrated neither that his impairments were not considered by the district court, nor
that he is entitled to retroactive application of the revised guideline.
Finally, Rigsby compares his sentence with the one day of incarceration imposed in United
States v. Young, No. 1:09-CR-252, 2010 WL 502754 (W.D. Mich. Feb. 5, 2010) for a conviction of
possession of child pornography. Rigsby’s argument that his hearing impairment is indistinguishable
from Young’s total disability due to multiple sclerosis is not persuasive. His claim of an unduly
disparate sentence is therefore rejected. Rigsby has not persuaded us that his below-guidelines
sentence is unreasonably severe. See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).
For all of the above reasons, the district court’s judgment is affirmed.