United States v. Rush

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 14, 2007

Charles R. Fulbruge III
Clerk
No. 05-51333

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

PAUL ADAMS RUSH

Defendant - Appellant

Appeal from the United States District Court
For the Western District of Texas, Austin Division
1:05-CR-00032

Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

The Defendant-Appellant, Paul Adams Rush, was indicted and

convicted on two counts of wire fraud, in violation of 18 U.S.C. §

1343; two counts of bank fraud, in violation of 18 U.S.C. § 1344;

eight counts of making false statements related to a loan, in

violation of 18 U.S.C. § 1014; and five counts of money laundering,

*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
in violation of 18 U.S.C. § 1957. Rush challenges the sufficiency

of the evidence to sustain his convictions for wire fraud and money

laundering and appeals his sentence of 120 months imprisonment on

each of the seventeen counts. For the reasons set forth below, we

AFFIRM.

I. Factual Background and Procedural History

Paul Adams Rush (“Rush”) was charged in a seventeen-count

indictment with wire fraud, bank fraud, making false statements

related to a loan, and money laundering. The charges against Rush

involved two separate schemes, both concerning a company founded by

Rush, Audiobooks of Texas, Inc. dba Earful of Books, Inc.

(“Earful”). Rush was the President and Chief Executive Officer of

Earful, as well as the company’s largest single shareholder. At

the time, Earful was experiencing great financial difficulties.

The first scheme involved Rush’s dealings as trustee of a

trust, and form the basis of the wire fraud and money laundering

counts. In March 1999, Vera and Stewart Bowen (the “Bowens”)

established a trust fund for the benefit of their four children

(the “Bowen Trust”). After becoming acquainted with Rush through

church activities and naming Rush as the godfather of one of their

children, the Bowens asked Rush to serve as the trustee of the

trust, and Rush accepted. The trust was created to purchase

$12,000,000 of life insurance and was fully funded with an advance

deposit of $575,000. Northwestern Mutual Life Insurance Company

2
(“Northwestern Mutual”) became the repository of the cash and

assets related to the Bowen Trust.

In January 2001, Rush contacted Steven Saunders (“Saunders”),

the Bowens’ estate-planning attorney who drafted the trust

instrument, and Michael Steward (“Steward”), who was previously

employed by Northwestern Mutual and assisted the Bowens in creating

the insurance policy for the trust, and falsely maintained that the

Bowens wanted to borrow money from the trust fund as a “bridge

loan” to purchase a new home. Saunders advised Rush that it was

not a good idea, but that it was allowed under the provisions of

the trust if the loan was, inter alia, properly secured with

collateral.

Rush expressed to Steward a sense of urgency in obtaining the

loan, as the Bowens needed money quickly to purchase their new

house, and, believing Rush to be the Bowens’ representative,

Steward assisted Rush in completing the necessary loan documents.

On February 2, 2001, the first wire transfer of $499,985 from

Northwestern Mutual took place. Approximately 30 days later, Rush

applied for another loan from the policy of $29,000. Again, Rush

expressed to Steward a sense of urgency in obtaining the money. As

a result, on March 5, 2001, a second wire transfer of $29,000 from

the same Northwestern Mutual account took place.

Steward testified that, for months, Rush maintained that when

the Bowens sold their house in Austin, the proceeds from the sale

3
would be used to dramatically reduce, if not eliminate, the debt to

the policy. However, no payments were ever made on the loan, and,

according to Steward, the Northwest Mutual life insurance policy

was in jeopardy. As a result, Steward suggested to Rush that the

Bowens replace the current insurance policy with another carrier

and refinance the loan, which would require updated physical

examinations of the Bowens. Steward informed Rush that time was

critical because the coverage was going to terminate due to the

exhaustion of the policy. Nevertheless, although Rush indicated

numerous times that the Bowens would be taking - and Mr. Bowen had

taken - the requisite physicals, Rush never provided the medical

examinations and the loans were never refinanced.

Instead of using the money to finance the purchase of a house

for the Bowens, Rush used the borrowed money to pay down debt in

Earful, which was experiencing increasing cash-flow and financial

difficulties. In fact, at no time did the Bowens ever tell Rush

that they needed a “bridge loan” to finance the purchase of their

house1 and they did not learn what happened until after the loans

were made, and the money spent.

The second scheme involved efforts by Rush to secure loans on

behalf of Earful and form the basis of the bank fraud and making

false statements counts. Beginning in 2001, Rush obtained several

1
The Bowens financed the down payment for the purchase of their new house with a loan
from Vera Bowen’s parents.

4
loans from City National Bank and Village Bank and Trust on behalf

of Earful. Rush submitted numerous documents purportedly signed by

Russell Grigsby (“Grigsby”), a member of the Board of Directors of

Earful, to renew and guarantee the loans. However, Grigsby neither

signed nor authorized loan documentation related to the subject

loans. Instead, Rush forged Grigsby’s signature and directed his

assistant, Judy Nodecker (“Nodecker”), to notarize the signatures

and certify that she witnessed the signatures.

Rush was convicted by a jury on all seventeen counts. The

district court subsequently sentenced Rush to 120 months

imprisonment on each of the seventeen counts, to be served

concurrently.2

On appeal, Rush claims that the evidence was insufficient to

establish wire fraud and money laundering and that the district

court erred in imposing his sentence.3

II. Sufficiency of the Evidence

We first address whether the evidence was sufficient to

sustain Rush’s convictions for wire fraud and money laundering.

We examine the sufficiency of the evidence to determine

“whether, viewing all the evidence in the light most favorable to

2
Rush was also sentenced to five years of supervised release on each of counts one
through twelve, and three years of supervised release on each of counts thirteen through
seventeen, all to be served concurrently. Restitution of $1,669,813.61 was ordered and a special
assessment of $1,700 was imposed.
3
Rush does not challenge his convictions for bank fraud and making false statements
related to a loan. Rush does, however, challenge his sentence for those convictions.

5
the verdict, a rational trier of fact could have found that the

evidence establishes the essential elements of the offense beyond

a reasonable doubt.”4 “[I]t is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided

that a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.”5

A. Wire Fraud

We begin by considering the sufficiency of the evidence

supporting the charges of wire fraud. The elements of wire fraud,

under 18 U.S.C. § 1343, are (1) “a scheme to defraud;” and (2) “the

use of, or causing the use of, wire communications in furtherance

of that scheme.”6 Critical to a showing of a scheme to defraud is

proof that the defendant possessed a fraudulent intent.7

Fraudulent intent can be shown by proving that the defendant

contemplated or intended some harm to the property rights of his

victims.8

Rush argues that the evidence was insufficient to establish

4
United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003).
5
United States v. Stephens, 964 F.2d 424, 427 (5th Cir. 1992).
6
United States v. Odiodio, 244 F.3d 398, 402 (5th Cir. 2001).
7
See United States v. St. Gelais, 952 F.2d 90, 95 (5th Cir. 1992).
8
See United States v. Stouffer, 986 F.2d 916, 922 (5th Cir. 1993) (citing St. Gelais, 952
F.2d at 95).

6
that he intended to deprive the Bowen Trust of money because the

money was only a “loan” to Earful that he intended to repay. We

disagree.

There is ample evidence that Rush had the requisite fraudulent

intent when he wired the money from the Northwestern Mutual

account. As Rush concedes, he made several false statements in

connection with the loans from the Bowen Trust and misrepresented

the purpose of the loans. A jury could have reasonably construed

these lies as an attempt by Rush to hide illegal activities. In

addition, Rush used the money to pay down the debt of Earful, which

was in grave financial condition. Earful had been unprofitable

since its inception and by 2001 had an accumulated deficit of over

$9.5 million.9 Testimony indicated that Earful was in need of cash

and was unable to pay its bills. Moreover, Rush depleted

virtually all of the funds in the Bowen Trust. As a result, the

insurance policy “was effectively cannibalizing itself,”

eliminating any cash value. Rush was notified that the insurance

policy was about to be terminated and that the Bowens needed to

take out another policy to refinance the loans. However, contrary

to Rush’s false assurances that the necessary steps were being

taken to refinance the loans, a new insurance policy was never

executed and, thus, the loan was not refinanced. Lastly, although

9
Earful had a net loss of $1,109,202 and an accumulated deficit of $2,560,746 in 1999; a
net loss of $2,554,883 and an accumulated deficit of $5,115,462 in 2000; and a net loss of
$4,596,061 and an accumulated deficit of $9,711,523 in 2001.

7
Rush had the authority to borrow money from the trust fund, under

the terms of the trust instrument, Rush was obligated to manage the

funds in a “prudent way.”10 Rush’s action in taking virtually all

of the assets of the trust and placing the funds into a financially

failing company was far from prudent.11 A jury could have

reasonably interpreted Rush’s actions against his fiduciary duty

and the interests of the beneficiaries as evidence of an intent to

defraud.

The jury was entitled to reject Rush’s characterization of the

funds he took from the trust as “loans” to Earful that he intended

to repay. No collateral was ever provided for the purported loans

and no payments were ever made. In addition, the money was spent

in one week and was largely used to pay delinquent bills and to

fund prior overdrafts. As a result, the funds did not produce any

new prosperity for the unprofitable company which could be used to

repay the alleged loan.12 A jury could have reasonably concluded

that, at the time of the wire transfers, the funds would be wasted

10
In addition, in a letter to Rush outlining his duties and responsibilities as trustee, Rush
was notified that if the funds were borrowed, they had to be prudently invested. The letter to
Rush defined “prudence” as, inter alia, preservation of capital, including not making speculative
investments, and a reasonable return in terms of income.
11
In the same above-mentioned letter, Rush was also informed that, as
part of his duty of loyalty to the beneficiaries, he was to “exclude from consideration [his] own
personal interests . . . .,” and, under the Texas code, a trustee generally cannot engage in self-
dealing.
12
Although Earful was seeking to sell assets and obtain investment capital, Grigsby
discovered that Rush’s leads to sell some assets were “totally fabricated.”

8
on a doomed enterprise and not repaid.

Viewing the evidence in the light most favorable to the

verdict, we conclude that a jury could have found beyond a

reasonable doubt that Rush possessed an intent to defraud. The

evidence amply supports the wire fraud convictions.

B. Money Laundering

Rush appeals his money laundering convictions on sufficiency

of the evidence grounds, arguing that the evidence was insufficient

to establish the underlying specified unlawful activity of wire

fraud.

The money laundering statute, 18 U.S.C. § 1957, requires a

financial transaction involving the proceeds of a specified

unlawful activity, which includes wire fraud.13 Rush’s five money

laundering convictions were based on the specified unlawful

activity of wire fraud. The wire frauds alleged in the money

laundering counts are the same as those in the wire fraud counts.

Therefore, for the reasons previously stated, the money laundering

convictions are affirmed.

III. Sentencing

Rush disputes the district court’s application of the

Guidelines and claims that his sentence is unreasonable.

The district court calculated the guideline range to be 87 to

13
See 18 U.S.C. § 1961(1).

9
108 months.14 However, after determining the Guideline range, the

district court decided that an upward variance was justified and

imposed a non-Guideline sentence15 of 120 months imprisonment on

each count, to be served concurrently.

In determining the Guideline range, counts one through twelve

(“group one”) were grouped together and counts thirteen through

seventeen (“group two”) were grouped together.16 Since group one

included conduct that was treated in the guidelines applications of

group two, the groups were closely related and the highest offense

level was used.17 Group one produced the highest offense level, 28.

The base offense level for group one was six.18 Because the

fraud involved more than $1,000,000, which was derived from one or

more financial institutions, a total of eighteen points was added,19

14
Although the 2004 guidelines were in effect at the time of sentencing, the probation
officer used the 2001 Guidelines Manual when preparing the presentence report (“PSR”), having
determined that the latter was more advantageous to Rush.
15
We use the term “non-Guideline” sentence to distinguish it from a Guideline sentence
which includes a sentence that has been adjusted by applying a “departure” as allowed by the
Guidelines. United States v. Mares, 402 F.3d 511, 519 n.7 (5th Cir. 2005). Contrary to Rush’s
assertion, the sentence imposed by the district court did not involve an “upward departure.” In
imposing the 120-month sentence, the court made no reference to upwardly departing and
specifically stated that it was granting a variance pursuant to 18 U.S.C. § 3553(a). See United
States v. Smith, 440 F.3d 704, 708 n.3 (5th Cir. 2006).
16
U.S.S.G. § 3D1.2.
17
U.S.S.G. § 3D1.3.
18
U.S.S.G. § 2B1.1(a).
19
Sixteen points were added pursuant to U.S.S.G. § 2B1.1(b)(1)(I) and two points
pursuant to U.S.S.G. § 2B1.1(b)(12)(A).

10
bringing Rush’s offense level up to 24. The court then added a

two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) for Rush’s

role as an “organizer, leader, manager or supervisor,” and a two-

level enhancement pursuant to U.S.S.G. § 3B1.3 because Rush abused

a position of trust. In light of Rush’s criminal history score of

II, his sentence range was 87 to 108 months.

The district court calculated the offense level for group two

to be 27. In arriving at this figure, the court determined that

the base offense level was 24 because the offense level from which

the laundered funds were derived resulted in an offense level of 24

since the fraud involved over $1,000,000 derived from one or more

financial institutions.20 Because Rush was convicted under 18

U.S.C. § 1957, one level was added, pursuant to U.S.S.G. §

2S1.1(b)(2)(A). In addition, a two-level enhancement was added

because Rush abused a position of trust.21 Consequently, group

two’s total offense level of 27 was lower than that of group one.

Rush argues that the district court erred in imposing his

sentence by (1) increasing group one by two points pursuant to

U.S.S.G. § 3B1.1(c) for being a supervisor in a criminal activity;

(2) increasing group two by two points pursuant to U.S.S.G. § 3B1.3

for abusing a position of trust; (3) calculating the guideline

range for money laundering using the total amounts involved in the

20
U.S.S.G. § 2S1.1(a)(1).
21
U.S.S.G. § 3B1.3.

11
fraud prosecutions; and (4) imposing a sentence above the Guideline

range.

We review the district court’s findings of fact for clear

error and its application of the Guidelines de novo.22 Under United

States v. Booker,23 we ultimately review a sentence for

“unreasonableness” with regard to the statutory sentencing factors

enumerated in 18 U.S.C. § 3553(a).24

Before imposing a non-Guideline sentence, a district court

must consider the Sentencing Guidelines.25 This consideration

22
Smith, 440 F.3d at 706 (citation omitted).
23
543 U.S. 220 (2005).
24
Id. at 261. The relevant factors include:

(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed ... medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-
(A) the applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines ...;
(5) any pertinent policy statement ...;
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct . . . .

18 U.S.C. § 3553(a).

25
Smith, 440 F.3d at 707.

12
requires that the court calculate the appropriate Guideline range.26

A. The Guideline Range

Rush first argues that the district court erred in imposing a

two-level leadership enhancement to group one because Nodecker was

not a “participant.”27 We agree.

“To qualify for an adjustment under this section, the

defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.”28 A “participant”

is defined as a person who, although not necessarily convicted, “is

criminally responsible for the commission of the offense.”29

The district court overruled Rush’s objection to the two-point

enhancement, stating

It’s clear from the evidence I heard in the trial that
Mr. Rush was responsible for leading his trusted employee
. . . to commit criminal offenses by notarizing
signatures when she didn’t have them executed in her
presence, not knowing, I’m sure, they were forged.30

The group to which the leadership enhancement was applied

involved the charges for wire fraud, bank fraud, and making false

26
Id. at 707.
27
U.S.S.G. § 3B1.1(c).
28
U.S.S.G. § 3B1.1(c), comment n.2 (emphasis added).
29
U.S.S.G. § 3B1.1, comment, n.1 (emphasis added).
30
In response to Rush’s objections to the PSR, the government argued that Nodecker did
not see Grigsby sign the loan documents and thus, when she notarized that she had witnessed the
signatures of Grigsby, Nodecker made a false oath and could be prosecuted under Tex. Penal
Code Ann. § 37.02. However, this was not an offense for which Rush was charged.

13
statements related to a loan. On appeal, the government maintains

that Nodecker was a criminally responsible participant in the false

statements offenses because she falsely asserted that she witnessed

Grigsby’s signatures on the loan documents when she knew that it

was important to banks that she actually witness such signatures.

Even assuming that Nodecker’s actions would constitute a violation

of 18 U.S.C. § 1014, the false statements relevant to Rush’s

offenses were that Grigsby had actually signed the subject

documents. As recognized by the district court, Nodecker was not

aware that Grigsby’s signatures were forged. Accordingly, Nodecker

was not a “participant” in the offense.

As a result, we conclude that the district court erred in

increasing the offense level for group one by two levels pursuant

to U.S.S.G. § 3B1.1(c).31 Without this error, the adjusted offense

level for group one would have been 26. Since group two had an

adjusted offense level of 27, it would have produced the highest

offense level.

Having determined that the district court made an error in an

application of the Guidelines, we need not decide whether the

district court committed further errors in calculating the

guideline range because such errors do not change the disposition

31
See United States v. McCoy, 242 F.3d 399, 410 (D.C. Cir. 2001); United States v.
Gross, 26 F.3d 552, 554 & n.5 (5th Cir. 1994).

14
of this case.32

B. Reasonableness

Generally, if the district court makes an error in an

application of the Guidelines, we vacate the resulting sentence

without reaching the sentence’s ultimate reasonableness.33 This is

so because Booker did not invalidate 18 U.S.C. § 3742(f), which

provides:

If the court of appeals determines that . . . the
sentence was imposed in violation of law or imposed as a
result of an incorrect application of the sentencing
guidelines, the court shall remand the case for further
sentencing proceedings . . . .34

However, a non-Guideline sentence that did not directly

“result” from the Guidelines error need not be vacated based solely

on the miscalculation.35 Nevertheless, “a miscalculation of the

guideline range deprives the sentence of great deference and is a

factor to be considered in assessing the reasonableness of the

sentence.”36

32
We note that if we were to adopt the calculations as
suggested by Rush in his brief, his adjusted offense level would
be 27, only one level lower than that calculated by the district
court. This results in a guideline range of 79 to 97 months.
33
United States v. Duhon, 440 F.3d 711, 716 (5th Cir. 2006) (citing United States v.
Villegas, 404 F.3d 355, 362 (5th Cir. 2005)).
34
18 U.S.C. § 3742(f) (emphasis added).
35
Duhon, 440 F.3d at 716.
36
United States v. Medina-Argueta, 454 F.3d 479, 483 (5th Cir. 2006) (citation and
internal quotations omitted).

15
 In imposing the non-Guideline sentence in this case, the

district court stated that, “notwithstanding any objection, this

court would not give you a sentence less than 120 months under any

circumstances.” Rush’s sentence did not “result” from an incorrect

application of the Guidelines and, therefore, the district court’s

miscalculation of the Guideline range does not require reversal

under 18 U.S.C. § 3742(f)(1).37 “Formalism does not require us to

vacate [Rush’s] sentence so that the district court on remand, will

simply impose the exact same sentence . . . .”38 We therefore

proceed to review Rush’s sentence for reasonableness.

Our reasonableness review in non-guideline cases begins with

the requirement in Mares that the district court justify a non-

guideline sentence with “fact specific reasons involving

aggravating circumstances, personal characteristics of the

defendant, his offense conduct, criminal history, or other conduct

specific to the case at hand.”39 Here, the district court justified

its sentence, in part, as follows:

I’m going to grant a variance in this case pursuant to 18
United States Code 3553(a). One of the reasons is your
own personal characteristic of having no remorse for your
action and no conscience trying to rectify the evil that

37
Duhon, 440 F.3d at 716 (involving statement by district court that it would have
imposed the same non-guideline sentence regardless of the Guideline range); see Medina-Arqueta,
454 F.3d at 483 n.2 (noting that the district court stated that, in its view, any lower sentence
would be inappropriate).
38
See Medina-Arqueta, 454 F.3d at 483 n.2.
39
Mares, 402 F.3d at 519.

16
 you’ve done through restitution and through paying your
bills. You’ve just got a history of stealing and
stealing big. Time in the penitentiary from the Frost
stealing didn’t even slow you down when you accomplished
this criminal conduct as we’ve indicated you owe still a
half a million dollars to Frost, as well as being
indebted to the Internal Revenue Service. And the
evidence is undisputed in this case, you took advantage
of friends, fellow church members, and even those persons
who asked you to be a godfather to children, you stole
money from all of them. You even stole money on projects
that was to protect the same children that you accepted
religious responsibility for . . . . [Y]ou also impaired
and damaged the lives of more than 50 employees [and many
investors]. . . . The Court was taken with the evidence
when you placed Ms. Nodecker in a position where she
could actually go to jail having her notarize what you
knew to be forged signatures. The Court finds you’re
really truly a scoundrel without a conscience. You’re a
serious threat to the public, and your sentence for this
type of conduct must be a deterrent.

By providing these reasons, the district court satisfied the

requirement in Mares that it enumerate the factors on which its

sentence is based so the appellate court can conduct a

reasonableness review.

However, Rush’s sentence is not per se reasonable merely

because the district court articulated its justification for the

sentence as Mares requires. Our inquiry turns now to whether the

court’s proffered justification for the 120-month sentence is

sufficient to withstand our reasonableness review. In reviewing

for reasonableness, we assess whether the statutory sentencing

factors support the sentence.40 A non-Guideline sentence is

unreasonable where it “(1) does not account for a factor that

40
Smith, 440 F.3d at 707.

17
should have received significant weight; (2) gives significant

weight to an irrelevant or improper factor; or (3) represents a

clear error of judgment in balancing the sentencing factors.”41

The district court justified the sentence with specific

reference to the language of § 3553(a). The district court

considered the nature and circumstances of the offense and the

history and characteristics of Rush to be particularly

reprehensible in light of Rush’s lack of remorse and his

relationship to his victims.42 The court’s statements also reflect

a concern for the seriousness of the offense and the need to

provide just punishment pursuant to § 3553(a)(2)(A). In addition,

the court specifically addressed the need to afford adequate

deterrence to criminal conduct and to protect the public from

further crimes of Rush, as outlined in § 3553(a)(2)(B) and (C).

Rush maintains the court improperly placed significant weight

on his lack of remorse and 1990 conviction for embezzlement. In

addition, Rush contends that his actions in taking advantage of his

friends, fellow church members, and co-workers were already

accounted for in the guidelines by the leadership enhancement and

the enhancement for abusing a position of trust. We conclude that

the district court properly considered these factors in imposing

the 120-month sentence.

41
Id. at 707-08.
42
See 18 U.S.C. § 3553(a)(1).

18
 Although Rush’s 1990 embezzlement conviction was used to

calculate his criminal history, this calculation did not take into

account Rush’s failure to make any effort to remedy the harm he

caused or the specific characteristics of that offense. Moreover,

in stressing Rush’s lack of remorse, the district court also cited

his failure to repay the Internal Revenue Service, the Bowens, and

the subject banks. In addition, the abuse of a position of trust

enhancement focused on Rush’s status as trustee of the Bowen Trust.

The enhancement did not take into consideration other instances in

which Rush took advantage of his friends and fellow church members.

Similarly, the leadership enhancement only involved Rush’s

direction of Nodecker. Therefore, Rush’s actions impairing the

lives of other co-employees and investors were not considered.43

Viewing the district court’s justification in light of all the

§ 3553(a) factors, we conclude that Rush’s sentence is not

unreasonable. The factors considered by the district court are all

relevant, proper factors. We see no other factors relating to Rush

that should have received significant weight and find no errors of

43
Rush also argues that the district court did not use the proper procedure in imposing his
sentence because it did not examine each successive criminal history category to determine
whether it was adequate before imposing an upward departure. See United States v. Lambert,
984 F.2d 658, 662-63 (5th Cir. 1993). Because the district court imposed a non-Guideline
sentence in this case and not an upward departure pursuant to U.S.S.G. § 4A1.3, the court was
not required to consider each intermediate criminal history category before arriving at its
sentence. See Smith, 440 F.3d at 708 n.3 (where the district court does not make reference to
upwardly departing, “we do not examine whether an upward departure . . . was available under
the Guidelines”); see also, United States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006)
(citing id.).

19
judgment in the district court’s balancing of the sentencing

factors. Accordingly, we affirm Rush’s sentence.

IV.

For the foregoing reasons, the judgment of the district court

is affirmed.

AFFIRMED.

20