US v. Christian G. Rhode

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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factors,

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whether

the

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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
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court’s

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explicit

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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
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that

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the

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defendant’s

under-represents

the

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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

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sentence be upheld.”

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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

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