United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-10189
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUSSELL CURTIS RHODES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-67-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Russell Curtis Rhodes appeals his sentence of 180 months of
imprisonment for aggravated sexual abuse of a child, in violation
of 18 U.S.C. § 2241(c). Rhodes pleaded guilty to the charged
offense pursuant to a plea agreement.
On appeal, Rhodes claims that the district court erred in
failing to provide notice pursuant to FED. R. CRIM. P. 32(h) that it
would impose a non-Guideline sentence. Rhodes also argues that the
district court’s sentence was unreasonable because considered facts
it
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-10189
-2-
unsupported by the record or which had already been taken into
account in establishing the guideline range.
After United States v. Booker, 543 U.S. 220 (2005), this court
continues to review sentences for reasonableness. United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Nevertheless, this court has not expressly held whether
the reasonableness standard or the plain-error standard of review
applies in cases such as this, where the defendant fails to object
to the reasonableness of the sentence in the district court.
However, this court need not address the issue at this time because
even under the more generous reasonableness standard Rhodes fails
to make the requisite showing.
Under the reasonableness standard, the district court must
more thoroughly articulate its reasons for imposing a non-
guidelines sentence than when it imposes a sentence within the
Guidelines system. United States v. Smith, 440 F.3d 704, 707 (5th
Cir. 2006). Such reasons should be fact-specific and consistent
with the sentencing factors expressed in 18 U.S.C. § 3553(a). Id.
“The farther a sentence varies from the applicable Guideline
sentence, ‘the more compelling the justification based factors in
section 3553(a)’ must be.” Id. (citation omitted).
In this case, the district court imposed the non-guidelines
sentence based on the nature and characteristics of the offense and
the history and characteristics of the defendant, as well as the
need to reflect the seriousness of the offense, to deter further
No. 06-10189
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criminal conduct and to protect the public, as required under
§ 3553(a). Specifically, the court noted that in deciding to issue
the variance, it considered the particularly young age of the
victim, who was only three–years old at the time of the abuse; the
fact that not only was the victim in the care or custody of Rhodes,
but is his daughter; and evidence of repeated instances of sexual
abuse of the victim. Because it was not improper for the court to
consider these factors, we conclude that Rhodes’s sentence was
reasonable.
With respect to Rhodes’s argument that the court erred in
failing to give notice of its intent to impose a variance, thereby
denying him of a meaningful opportunity to challenge the findings
of the district court, this court finds that because Rhodes could
have raised an objection to the lack of notice under Rule 32(h),
but failed to do so, the proper standard of review is plain-error.
See United States v. Jones, 444 F.3d 430, 436 (5th Cir.)(citing
United States v. Olano, 507 U.S. 725, 731 (1993)), cert. denied,
126 S. Ct. 2958 (2006). Rhodes must therefore demonstrate that
such error is plain and affected his substantial rights. Plain
error is error that is clear under the current law. See Olano, 507
U.S. at 743. Since the law at the time Rhodes was sentenced was
not clear as to whether notice under FED. R. CRIM. P. 32(h) is
required for non-guideline sentences, Rhodes cannot demonstrate
that there was plain error, and has failed to meet the required
burden.
No. 06-10189
-4-
AFFIRMED.