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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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