                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4624


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTIAN G. RHODES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:15-cr-00076-F-1)


Submitted:   November 29, 2016            Decided:     December 12, 2016


Before GREGORY,   Chief   Judge,   and   SHEDD   and    FLOYD,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Chief Appellate Attorney, Jennifer C. Leisten, Research &
Writing Attorney, Raleigh, North Carolina, for Appellant.  John
Stuart Bruce, Acting United States Attorney, Jennifer P. May-
Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Christian G. Rhodes appeals the 144–month upward departure

sentence imposed by the district court following Rhodes’ guilty

plea to conspiracy to defraud the United States, in violation of

18    U.S.C.    §    286     (2012),       and       aggravated     identity       theft,   in

violation      of    18     U.S.C.     § 1028A         (2012).       On    appeal,      Rhodes

contends that the upward departure sentence is procedurally and

substantively        unreasonable.               The    Government        argues    that    the

appellate waiver precludes Rhodes’ appeal.                         We hold that Rhodes’

appeal falls outside the scope of the waiver, and, finding no

error in the district court’s judgment, we affirm.

       Rhodes       does     not    challenge          the    validity     of    the    appeal

waiver, but contends that the issues raised do not fall within

its scope.      Because the waiver excepted a sentence in excess of

the    Guidelines          range    established          at    sentencing,       and    Rhodes

appeals his above-Guidelines-range sentence, we hold that the

claims raised on appeal are not precluded by the waiver.                                    See

United States v. McLaughlin, 813 F.3d 202, 205 (4th Cir. 2016).

       Next,    we    turn     to    the    substance         of   Rhodes’      appeal.     We

review a sentence for reasonableness, applying “a deferential

abuse-of-discretion standard.”                    Gall v. United States, 552 U.S.

38, 41 (2007); United States v. Lynn, 592 F.3d 572, 577 (4th

Cir. 2010) (internal quotation marks omitted).                               In conducting

procedural      reasonableness             review,       we    consider,        among     other

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factors,    whether       the    district         court        analyzed      any      arguments

presented by the parties and sufficiently explained the selected

sentence.        Gall, 552 U.S. at 51.                   “Regardless of whether the

district    court      imposes    an    above,          below,    or     within-Guidelines

sentence,        it    must    place    on        the     record       an    individualized

assessment based on the particular facts of the case before it,”

such that the appellate court need “not guess at the district

court’s rationale.”            United States v. Carter, 564 F.3d 325, 329,

330 (4th Cir. 2009) (internal quotation marks omitted).

     Rhodes       assigns      procedural         error    to    the     district        court’s

failure     to    address       his    arguments          in     favor      of    a     downward

departure.       Because Rhodes preserved this issue by arguing for a

sentence other than the one he ultimately received, our review

is for an abuse of discretion.                      Lynn, 592 F.3d at 576, 578.

Rhodes     also       argues    that    his        upward-departure              sentence     is

substantively unreasonable.

     Based on our review of the transcript, we agree that the

district court did not expressly address Rhodes’ nonfrivolous

arguments in sentencing him.              Thus, “we [must] reverse unless we

conclude that the error was harmless.”                          592 F.3d at 576.              The

Government       may    establish      that       such     a     procedural           error   was

harmless, and thus avoid remand, by showing “that the error did

not have a substantial and injurious effect or influence on the

result and we can say with fair assurance that the district

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court’s    explicit     consideration          of     the    defendant’s        arguments

would not have affected the sentence imposed.”                        United States v.

Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (alterations and

internal quotation marks omitted).

      Applying   this    standard      to       the      facts   of      this   case,    we

conclude the Government has satisfied its burden of showing that

the   district   court’s        procedural          error     was     harmless.         The

district    court’s     adoption      of    the       presentence        report,     which

recited    Rhodes’      criminal       history,           personal        history,      and

characteristics,      demonstrates          the       court’s        familiarity      with

Rhodes’ circumstances.          Further, the arguments Rhodes advanced

in favor of a below-Guidelines sentence were countered by the

district    court’s      finding       that         an      upward       departure      was

appropriate.     Finally, the sentencing transcript leaves little

doubt that the district court considered the arguments in favor

of the downward variance, as this issue was discussed at length

during the sentencing hearing.                 We are thus persuaded that, in

this case, any shortcoming in the district court’s failure to

expressly address Rhodes’ arguments for a downward variance is

harmless and that remand is not warranted.

      We turn, then, to the district court’s decision to impose

an upward departure.        The Sentencing Guidelines provide for an

upward    departure     based    on    the      inadequacy          of   a   defendant’s

criminal history category “[i]f reliable information indicates

                                           4
that   the    defendant’s          criminal            history       category    significantly

under-represents           the    seriousness            of    the     defendant’s       criminal

history or the likelihood that the defendant will commit other

crimes.”      U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s.

(2014).       “When reviewing a departure, we consider whether the

sentencing         court   acted        reasonably            both    with     respect    to   its

decision      to    impose       such    a    sentence         and     with    respect    to   the

extent of the divergence from the sentencing range.”                                       United

States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (internal

quotation marks omitted).

       We conclude that, under the totality of the circumstances,

the district court did not abuse its discretion by imposing an

upward    departure        upon     finding            that    Rhodes’        criminal    history

category significantly underrepresented the seriousness of his

criminal history or his likelihood of recidivism.                                   We further

conclude      that     the       court       did       not     abuse    its     discretion      in

determining the extent of the upward departure, which was five

months above the top of the Guidelines range.

       In sum, we conclude that any procedural error was harmless

and    that    the     sentence          imposed         by     the     district     court     is

substantively reasonable.                    The sentence imposed on Rhodes “may

not be the only reasonable sentence, but it is a reasonable

sentence, and the Supreme Court has directed than any reasonable



                                                   5
sentence be upheld.”       United States v. Evans, 526 F.3d 155, 166

(4th Cir. 2008).

      Accordingly, we affirm the judgment of the district court.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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