NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30094
Plaintiff-Appellee, D.C. No. 2:15-cr-00144-SMJ-12
v.
DUSTIN W. RHODES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Dustin W. Rhodes appeals from the district court’s judgment and challenges
the 12-month sentence imposed upon revocation of his supervised release. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rhodes first contends that the court miscalculated the Guidelines range.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Although the court initially misstated the applicable Guidelines range, defense
counsel immediately corrected the court’s misstatement and identified the correct
Guidelines range. The court then acknowledged the correction. Therefore, any
error was harmless. See United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th Cir.
2012).
Rhodes next challenges the district court’s failure to provide advance notice
of its intent to impose an above-Guidelines sentence. However, the court was not
obligated to provide such notice. See United States v. Leonard, 483 F.3d 635, 638
(9th Cir. 2007) (“Because Chapter 7 is advisory, a judge issuing a sentence outside
the Chapter 7 range is not ‘departing’ from a binding guideline, and, therefore, we
also held that notice of an intent to ‘depart’ is unnecessary”). Moreover, Rhodes
has failed to demonstrate any due process violation.
Finally, Rhodes contends that the district court failed to explain the sentence
adequately. The court explained that, taking into consideration the relevant
sentencing factors, it was concerned that Rhodes had amassed 15 supervised
release violations in two years, despite probation’s attempts to provide him with
treatment options. This explanation was sufficient to justify the court’s decision to
vary upward and impose a 12-month sentence. See Rita v. United States, 551 U.S.
338, 359 (2007).
AFFIRMED.
2 18-30094