US v. Christian G. Rhode


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00076-F-1 Copies to all parties and the district court/agency. [999984617].. [15-4624]

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Appeal: 15-4624 Doc: 32 Filed: 12/12/2016 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTIAN G. RHODES, Defendant -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 Before GREGORY, Judges. Chief Judge, Decided: and SHEDD and December 12, 2016 FLOYD, Circuit Affirmed by unpublished per curiam opinion.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. MayParker, Seth M. Wood, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4624 Doc: 32 Filed: 12/12/2016 Pg: 2 of 6 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. violation § 286 of 18 (2012), U.S.C. and aggravated § 1028A (2012). identity On theft, appeal, in Rhodes contends that the upward departure sentence is procedurally and substantively unreasonable. The Government appellate waiver precludes Rhodes’ appeal. argues that the 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. the Because the waiver excepted a sentence in excess of 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). procedural reasonableness review, 2 we consider, In conducting among other Appeal: 15-4624 Doc: 32 factors, Filed: 12/12/2016 whether the Pg: 3 of 6 district court analyzed any arguments presented by the parties and sufficiently explained the selected sentence. Gall, 552 U.S. at 51. district court sentence, it imposes must an “Regardless of whether the above, place on below, the or record within-Guidelines 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 failure assigns to departure. address procedural his error arguments to in the favor district of a court’s downward 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. Rhodes also argues that his Lynn, 592 F.3d at 576, 578. 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.” Government may establish that such 592 F.3d at 576. a procedural error The 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 3 Appeal: 15-4624 Doc: 32 court’s Filed: 12/12/2016 explicit Pg: 4 of 6 consideration of the defendant’s would not have affected the sentence imposed.” arguments 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 district court’s adoption recited Rhodes’ criminal characteristics, of the the was harmless. presentence history, demonstrates Rhodes’ circumstances. error personal court’s report, history, familiarity The which and with Further, the arguments Rhodes advanced in favor of a below-Guidelines sentence were countered by the district court’s appropriate. finding that an upward departure was 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. upward departure The Sentencing Guidelines provide for an based on the inadequacy of a defendant’s criminal history category “[i]f reliable information indicates 4 Appeal: 15-4624 that Doc: 32 the Filed: 12/12/2016 defendant’s under-represents the Pg: 5 of 6 criminal history seriousness of category the significantly 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 decision court to acted impose reasonably such a both sentence with and respect its respect with to 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. conclude that the court did not abuse its We further 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 substantively reasonable. imposed by the district court is 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 Appeal: 15-4624 Doc: 32 Filed: 12/12/2016 sentence be upheld.” Pg: 6 of 6 United States v. Evans, 526 F.3d 155, 166 (4th Cir. 2008). Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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