          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                December 23, 2008
                               No. 08-10249
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

WILLIAM MICHAEL RHODES

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 3:07-CR-119-ALL
                         USDC No. 3:07-CR-209-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      William Michael Rhodes appeals the statutory maximum twenty-year
sentences he received for three counts of bank robbery. His criminal history
included two burglary of a habitation offenses that occurred on different dates.
However, because he was arrested for both offenses on the same day, the
Guidelines treated them as a single offense. As a result, Rhodes did not qualify




      *
      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should not be published and is not precedent except under the limited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. 08-10249

as a career offender under U.S.S.G. § 4B1.1, despite his extensive criminal
record.
      In explaining the basis for the sentences, the district court first calculated
the applicable guidelines range and lamented “the glitch” that prevented Rhodes
from qualifying as a career offender. The court then applied the 18 U.S.C.
§ 3553(a) factors to determine that a non-guidelines sentence was more
appropriate than a guidelines sentence under the circumstances of the case. The
judge explained to Rhodes that, “[i]n my judgment in this case the guideline
range does not provide sufficient punishment. I believe that it understates what
is appropriate . . ., and I intend to sentence you under the statute to a more
significant sentence than the guideline range.”
      Rhodes asserts that the district court committed reversible procedural
error by miscalculating the career offender guidelines range. He asserts that the
court’s sole basis for imposing the statutory maximum was its belief that he
should be treated as a career offender and that, therefore, the only justifiable
variance from the applicable guidelines range would have been a sentence within
the properly-calculated career offender range.
      In reviewing the sentence imposed, we must first determine whether the
district court committed any significant procedural error. United States v. Gall,
128 S. Ct. 586, 597 (2007). The district court commits a procedural error if it
miscalculates or fails to calculate the proper guidelines range, treats the
Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails adequately to explain its
chosen sentence or any deviation from the guidelines range. Id. at 597.
      As Rhodes concedes, the district court began its sentencing determination
by properly calculating the applicable guidelines range. We find no indication
in the record that the court also calculated (or miscalculated) the guidelines
range that would have applied if Rhodes qualified as career offender. It simply
expressed its belief that he should qualify as a career offender because of his

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extensive criminal history. The court did not impose the statutory maximum
solely because it believed Rhodes should be treated as a career offender under
the Guidelines. The court’s opinion that Rhodes should qualify as a career
offender was the first reason it provided for imposing a sentence above the
guidelines range. The court then analyzed each of the § 3553(a) factors and
determined a non-guidelines, statutory maximum sentence was necessary to
meet the sentencing goals of the statute. Accordingly, we reject Rhodes’s
argument that the district court committed a reversible procedural error.
      AFFIRMED.




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