United States v. Roush, 052213 FED6, 12-3847

Docket Nº:12-3847
Opinion Judge:CLAY, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHANE MATTHEW ROUSH, Defendant-Appellant.
Judge Panel:BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.
Case Date:May 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

SHANE MATTHEW ROUSH, Defendant-Appellant.

No. 12-3847

United States Court of Appeals, Sixth Circuit

May 22, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

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

BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.[*]

CLAY, Circuit Judge.

After pleading guilty to cultivation of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), Defendant Shane Roush was sentenced to a term of 281 months' imprisonment to be followed by five years of supervised release. Defendant appeals his sentence, claiming that the district court committed procedural error in imposing it. For the following reasons, we AFFIRM Defendant's sentence.

BACKGROUND

Defendant Shane Roush had an ongoing dispute with his neighbor Jeff Levering over the easement rights between their properties in rural Morrow County, Ohio. On October 21, 2010, Morrow County Sheriff's Sergeant Robert Chalfant and Detective Brandon Moore responded to a call from Levering complaining that Defendant's van was blocking Levering's access to his fields. Upon arrival, Moore spoke with Defendant, who agreed to move his van; Chalfant then departed.

Moore stayed behind because Levering informed Moore that Defendant was growing marijuana on Defendant's property—something Defendant had been doing since 2005. To investigate Levering's claim, Moore climbed on top of one of Levering's grain bins to get a better view of Defendant's fields. At that time, Moore observed what he believed to be marijuana growing in Defendant's fields. Moore then returned to his vehicle and drove along the fence line to get a better view of the marijuana. Defendant's wife observed Moore on the grain bin and driving the fence line and told her husband. Defendant directed his wife to retrieve his Sig Sauer semiautomatic assault rifle and ballistic vest.

Defendant exited his house, put on his ballistic vest, and walked toward Moore while carrying the assault rifle. Defendant then opened fire on Moore, hitting him four times. Defendant then turned his fire on the Levering family: Levering, his wife, and his son. The Leverings took cover behind their truck as Moore returned fire, wounding. A later investigation yielded over 1, 750 marijuana plants and over 100 firearms from Defendant's property.

The State of Ohio indicted Defendant and charged him with attempted aggravated murder and multiple felonious assault counts, as well as marijuana cultivation and trafficking counts. In December 2010, a federal grand jury in the Southern District of Ohio indicted Defendant for cultivation of more than 1000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and discharging a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(iii). The federal indictment also included a forfeiture count. Due to the overlapping drug charges, the state dismissed its cultivation and trafficking charges.

On August 22, 2011, Defendant pleaded guilty to the remaining state charges for which he received a total of 25 years' imprisonment. Thereafter, Defendant was brought into federal court pursuant to a writ of habeas corpus ad...

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