Filed: Dec. 12, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIAN G. RHODES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:15-cr-00076-F-1) Submitted: November 29, 2016 Decided: December 12, 2016 Before GREGORY, Chief Judge, and SHEDD and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Tho
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIAN G. RHODES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:15-cr-00076-F-1) Submitted: November 29, 2016 Decided: December 12, 2016 Before GREGORY, Chief Judge, and SHEDD and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thom..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTIAN G. RHODES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:15-cr-00076-F-1)
Submitted: November 29, 2016 Decided: December 12, 2016
Before GREGORY, Chief Judge, and SHEDD and FLOYD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Chief Appellate Attorney, Jennifer C. Leisten, Research &
Writing Attorney, Raleigh, North Carolina, for Appellant. John
Stuart Bruce, Acting United States Attorney, Jennifer P. May-
Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christian G. Rhodes appeals the 144–month upward departure
sentence imposed by the district court following Rhodes’ guilty
plea to conspiracy to defraud the United States, in violation of
18 U.S.C. § 286 (2012), and aggravated identity theft, in
violation of 18 U.S.C. § 1028A (2012). On appeal, Rhodes
contends that the upward departure sentence is procedurally and
substantively unreasonable. The Government argues that the
appellate waiver precludes Rhodes’ appeal. We hold that Rhodes’
appeal falls outside the scope of the waiver, and, finding no
error in the district court’s judgment, we affirm.
Rhodes does not challenge the validity of the appeal
waiver, but contends that the issues raised do not fall within
its scope. Because the waiver excepted a sentence in excess of
the Guidelines range established at sentencing, and Rhodes
appeals his above-Guidelines-range sentence, we hold that the
claims raised on appeal are not precluded by the waiver. See
United States v. McLaughlin, 813 F.3d 202, 205 (4th Cir. 2016).
Next, we turn to the substance of Rhodes’ appeal. We
review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007); United States v. Lynn,
592 F.3d 572, 577 (4th
Cir. 2010) (internal quotation marks omitted). In conducting
procedural reasonableness review, we consider, among other
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factors, whether the district court analyzed any arguments
presented by the parties and sufficiently explained the selected
sentence. Gall, 552 U.S. at 51. “Regardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an individualized
assessment based on the particular facts of the case before it,”
such that the appellate court need “not guess at the district
court’s rationale.” United States v. Carter,
564 F.3d 325, 329,
330 (4th Cir. 2009) (internal quotation marks omitted).
Rhodes assigns procedural error to the district court’s
failure to address his arguments in favor of a downward
departure. Because Rhodes preserved this issue by arguing for a
sentence other than the one he ultimately received, our review
is for an abuse of discretion. Lynn, 592 F.3d at 576, 578.
Rhodes also argues that his upward-departure sentence is
substantively unreasonable.
Based on our review of the transcript, we agree that the
district court did not expressly address Rhodes’ nonfrivolous
arguments in sentencing him. Thus, “we [must] reverse unless we
conclude that the error was harmless.” 592 F.3d at 576. The
Government may establish that such a procedural error was
harmless, and thus avoid remand, by showing “that the error did
not have a substantial and injurious effect or influence on the
result and we can say with fair assurance that the district
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court’s explicit consideration of the defendant’s arguments
would not have affected the sentence imposed.” United States v.
Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (alterations and
internal quotation marks omitted).
Applying this standard to the facts of this case, we
conclude the Government has satisfied its burden of showing that
the district court’s procedural error was harmless. The
district court’s adoption of the presentence report, which
recited Rhodes’ criminal history, personal history, and
characteristics, demonstrates the court’s familiarity with
Rhodes’ circumstances. Further, the arguments Rhodes advanced
in favor of a below-Guidelines sentence were countered by the
district court’s finding that an upward departure was
appropriate. Finally, the sentencing transcript leaves little
doubt that the district court considered the arguments in favor
of the downward variance, as this issue was discussed at length
during the sentencing hearing. We are thus persuaded that, in
this case, any shortcoming in the district court’s failure to
expressly address Rhodes’ arguments for a downward variance is
harmless and that remand is not warranted.
We turn, then, to the district court’s decision to impose
an upward departure. The Sentencing Guidelines provide for an
upward departure based on the inadequacy of a defendant’s
criminal history category “[i]f reliable information indicates
4
that the defendant’s criminal history category significantly
under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other
crimes.” U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s.
(2014). “When reviewing a departure, we consider whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (internal
quotation marks omitted).
We conclude that, under the totality of the circumstances,
the district court did not abuse its discretion by imposing an
upward departure upon finding that Rhodes’ criminal history
category significantly underrepresented the seriousness of his
criminal history or his likelihood of recidivism. We further
conclude that the court did not abuse its discretion in
determining the extent of the upward departure, which was five
months above the top of the Guidelines range.
In sum, we conclude that any procedural error was harmless
and that the sentence imposed by the district court is
substantively reasonable. The sentence imposed on Rhodes “may
not be the only reasonable sentence, but it is a reasonable
sentence, and the Supreme Court has directed than any reasonable
5
sentence be upheld.” United States v. Evans, 526 F.3d 155, 166
(4th Cir. 2008).
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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