                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4736


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARKO RUDI,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00412-NCT-1)


Argued:   October 25, 2011               Decided:   November 8, 2011


Before MOTZ, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jenifer Wicks, Washington, D.C., for Appellant.  Robert
Michael Hamilton, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.    ON BRIEF: John W.
Stone, Jr., Acting United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Estonia extradited Marko Rudi to the United States to face

charges   in     federal   court   for       a    fraud    scheme   in   which   he

attempted   to    obtain   kickbacks     in       return   for   awarding   United

States government contracts in Iraq.                   Rudi pled guilty to one

count of major fraud against the United States in exchange for

the dismissal of a second wire fraud charge and recommendation

of a sentence at the low end of the applicable guideline range.

On   appeal,     Rudi   contends   that          the   Government   obtained     his

conviction in violation of the Estonian extradition order and

did not fulfill its obligations under the plea agreement; he

also maintains that the district court abused its discretion in

sentencing him.     We affirm.



                                       I.

     On November 26, 2007, a federal grand jury issued a five

count indictment charging Rudi with wire fraud and deprivation

of honest services, in violation of 18 U.S.C. §§ 1343, 1346;

bribery, in violation of 18 U.S.C. § 666(a)(1)(B); major fraud

against the United States, in violation of 18 U.S.C. § 1031;

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i);

and concealment of money laundering, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i).



                                         2
         Research Triangle Institute International, Inc. (“RTI”), a

company that has managed approximately one billion dollars in

contracts        for     the     United     States    Agency    for    International

Development (“USAID”), had employed Rudi.                       Around April 2003,

while working at RTI, Rudi was responsible for supervising a

USAID contract in Iraq known as the Local Governance Project.

Instead     of    obtaining        competitive       bids   from     providers,      Rudi

attempted to obtain kickbacks from two bidders, SMitTeq LLC and

Business Systems House FZ-LLC (“BSH”), in exchange for awarding

a contract.            After the contract was awarded to it, BSH wired

approximately $255,000 to an attorney in Durham for the purchase

of   a    house   at     7     Birnham    Lane,   Durham,     N.C.     The    home    was

purchased in the name of a shell corporation, Southbay Partners,

but Rudi and his family occupied the house.

         At the time of his indictment, Rudi lived in his native

country of Estonia.              On September 17, 2008, the United States

formally     requested         that     Estonia   extradite    Rudi    based    on    the

pending indictment.             On December 12, 2008, the Estonian Ministry

of Justice ordered the extradition of Rudi on the two fraud

charges, but refused to extradite him for the charges of bribery

and money laundering.              Following his arraignment, Rudi moved to

dismiss     the    bribery        and     money   laundering       charges    based    on

Estonia’s refusal to extradite him on those grounds.                         The United



                                              3
States ultimately consented to the dismissal of those charges,

and the charges were dropped.

        On March 18, 2010, Rudi pled guilty to one count of major

fraud against the United States pursuant to a plea agreement.

The   agreement       provided,    inter    alia,       that    the    remaining     wire

fraud charge would be dismissed and that “the United States will

recommend to the Court that the defendant receive a sentence at

the low end of the applicable advisory guideline range.”

      At sentencing, the district court determined the applicable

advisory range to be 24-30 months imprisonment.                        When the court

asked     for    the    Government’s       recommendation,            the     prosecutor

replied “in the plea agreement the Government recommended to the

Court     a     sentence     at     the        lowest     end     of         guidelines.”

Nevertheless,        the   district    court      determined          that    an   upward

variance      was    appropriate   and     sentenced      Rudi    to    33     months   of

confinement, 3 years of supervised release, and a $150,000 fine.

Rudi noted this timely appeal.



                                          II.

        Rudi first contends that his conviction was obtained in

violation       of   the   Estonian       extradition      order       and      therefore

violates the rule of specialty.                 He argues that his conviction

for major fraud against the United States was dependent on facts



                                           4
that   showed   that    he    accepted     a    bribe       from   BSH,    and    Estonia

explicitly refused to extradite Rudi on the charge of bribery.

       The rule of specialty prohibits a requesting nation from

prosecuting     an   extradited     individual         for    offenses      other    than

those on which the surrendering nation agreed to extradite.                              See

United States v. Rauscher, 119 U.S. 407, 418-19 (1886); United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992).                        The rule of

specialty    finds     root    in   many       of   the     reciprocal     extradition

treaties of the United States.                  In the case of Estonia, the

treaty provides that “[n]o person shall be tried for any crime

or   offense    other   than    that     for        which    he    was    surrendered.”

Treaty Between the United States and Esthonia for Extradition of

Fugitives    from    Justice    art.   IV,      U.S.-Est.,         Nov.   8,     1923,   43

Stat. 1849.

       Assuming, without deciding, that Rudi has standing to raise

the issue of a violation of the rule of specialty, we hold that

Rudi has waived his right to appeal the issue by failing to

raise the argument in the district court.                      See Davis, 954 F.2d

at 186-87.      The rule of specialty is equivalent to a limit on

personal jurisdiction over the defendant, and so is subject to

waiver if not raised in a timely manner.                      See Fed. R. Crim. P.

12(b)(3), (e); United States v. Marquez, 594 F.3d 855, 858 (11th

Cir. 2010); United States v. Anderson, 472 F.3d 662, 668 (9th

Cir. 2006); United States v. Yousef, 327 F.3d 56, 115 (2d Cir.

                                           5
2003); United States v. Vreeken, 803 F.2d 1085, 1088-89 (10th

Cir. 1986).         In the district court, rather than contending that

the    rule    of    specialty    barred   prosecution      on     the   major      fraud

count, Rudi pled guilty to the charge.                     His total failure to

raise the rule of specialty objection with respect to the major

fraud count in the district court waives his reliance on the

specialty doctrine before us.

       Rule 12(e) does provide that a court may grant relief from

such a waiver upon a showing of “good cause.”                      Fed. R. Crim. P.

12(e).       However, Rudi has provided no reason for his failure to

raise the argument before the district court.                        Given that he

moved to       dismiss     the   bribery   and    money    laundering      claims     as

violating the rule of specialty, he clearly understood his right

to    rely    on    the   rule   of   specialty   but     failed    to   do    so    with

respect to the major fraud charge. 1

       Rudi’s contention that his claim presents a “structural”

defect that cannot be waived fails in light of our holding in

Davis.       Considering a nearly identical argument, we there held:

       Because courts construe international treaties as
       equivalent in supremacy to validly enacted federal
       law, the principle of specialty articulated by the

       1
       Rudi also contends that he cannot waive the                             rule of
specialty   because  the   doctrine  is  a  right  of                          Estonia.
Regardless of whether Estonia continues to maintain a                         right to
invoke the doctrine of specialty, Rudi waived his                             right to
invoke the doctrine.    See Davis, 954 F.2d at 186-87;                         Vreeken,
803 F.2d at 1088-89.


                                           6
      . . . Extradition Treaty must be considered no more
      than a statutorily created right. Protection of this
      right does not rise to the level of fundamentality
      that this court has traditionally demanded before
      addressing a question of law not argued at the
      district court level.

954   F.2d    at     187.      Therefore,         Rudi    has   waived    his   rule    of

specialty contention.



                                          III.

      Next,        Rudi   contends      that      the     Government     violated      its

obligation in the plea agreement to recommend a sentence at the

low   end     of    the     applicable     advisory         guidelines    range.        In

particular,        Rudi     argues     that    the       Government    ought    to   have

“advocated” for a sentence at the low end of the guidelines

range instead of “merely stat[ing] the condition of the plea

agreement.”          We     conclude    that      the     Government     fulfilled     its

obligations. 2

      The plea agreement provides, in relevant part:                       “the United

States agrees that, once the Court has determined the applicable


      2
       The parties dispute the proper standard of review.   The
Government contends that Rudi “did not claim the plea agreement
was breached or attempt to withdraw his guilty plea” in the
district court, and therefore we should review only for plain
error.   Rudi contends that he preserved the argument, citing
trial counsel’s statement that the Government must “advocate”
for the low end of the guidelines, and so we should apply the
more forgiving clear error standard of review.     We need not
decide which standard of review applies because even applying
the more generous standard, Rudi cannot prevail.


                                              7
advisory guideline range, the United States will recommend to

the Court that the defendant receive a sentence at the low end

of the applicable advisory guideline range.”                       When the district

court    asked      for   the   Government’s         recommended         sentence,     the

following colloquy ensued:

      THE COURT:           Mr. Hamilton, you are recommending the
                           24 months?
      MR. HAMILTON:        Your Honor, in the plea agreement the
                           Government recommended to the Court a
                           sentence    at  the    lowest   end of
                           guidelines.
      THE COURT:           I think that’s all you can say.
      MR. HAMILTON:        Yes, sir.

The     prosecutor’s       recommendation          was     also    included       in   the

presentence report, which indicates that “the government will

recommend that the defendant be sentenced at the low end of the

guideline range.”

      Rudi   received       exactly        the   benefit    promised       in    the   plea

agreement:         that   the   Government         recommend      that    he    receive   a

sentence     at    the    low   end    of    the    applicable      guideline       range.

“[I]n enforcing plea agreements, the government is held only to

those promises that it actually made to the defendant.”                             United

States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994).                            Unless the

Government        binds   itself      to    “enthusiastically”           recommending     a

sentence, the Government is not obligated to do more than state

its recommended sentence.              United States v. Benchimol, 471 U.S.

453, 455 (1985).          Here, the Government promised to recommend a


                                             8
low end sentence, and did so.       Therefore, the Government did not

violate the plea agreement.

       Rudi points to United States v. Brown, 500 F.2d 375 (4th

Cir. 1974), and United States v. Grandinetti, 564 F.2d 723 (5th

Cir. 1977), to support his contention that the Government must

do more than state its recommendation.           But, in both of those

cases, unlike the case at hand, the prosecutor made remarks at

the sentencing hearing expressing reservations about the plea

agreement or arguing against the agreement entirely.                Here, the

Government did not undermine its recommendation to the court,

and therefore, it met its obligation under the agreement.



                                    IV.

       Lastly, Rudi challenges his sentence on several grounds.

This   court   reviews   the   reasonableness   of   a   sentence     under   a

“deferential     abuse-of-discretion      standard.”      Gall   v.    United

States, 552 U.S. 38, 41 (2007).

       Rudi primarily contends that the district court did not

consider the 18 U.S.C. § 3572(a) factors in imposing a fine of

$150,000.      We disagree.     The court considered the factors and

attempted both to tailor the fine to the crime at hand and to

address Rudi’s arguments.        The court noted the severity of the

crime, the gain to Rudi, and the loss to the victims.               When Rudi

objected to the fine, the district court further noted that “he

                                     9
is well educated.            He has a masters degree in accounting.                        He

has   experience        in   accounting,      and       is    obviously    an     extremely

bright person.”          Moreover, the district court ordered payment of

the fine in the form of small $150 monthly installments and

instructed Rudi that if he was unable to pay that amount, he

could bring it to the court’s attention following his release.

We therefore find that the district court did not abuse its

discretion in imposing a $150,000 fine.

      Rudi      also     contends     that     the       district      court      erred    in

sentencing him to incarceration for 33 months.                             We find that

there was no significant procedural error and that the sentence

was substantively reasonable.                 See United States v. Evans, 526

F.3d 155, 161 (4th Cir. 2008).                The court based its sentence on

the fact that (1) Rudi’s crime was an “awful fraud” that took

advantage       of    taxpayer    dollars;        (2)    Rudi    had     taken    steps     to

conceal his fraud; (3) Rudi may have tried to receive kickbacks

from other companies; and (4) there was a need for deterrence.

Moreover, the 33 month term of incarceration was only a small

variance     from      the   24-30    month   advisory          range.     The        district

court    thus        adequately   considered            the   factors     in     18    U.S.C.

§ 3553(a) and did not abuse its discretion in imposing the 33

month sentence.

      Finally,        Rudi   claims    that       the    district      court     improperly

relied     on    his     national      origin       and       immigration        status    in

                                             10
sentencing.         We cannot agree.       Of course, “sentences imposed on

the basis of impermissible considerations, such as a defendant’s

race or national origin, violate due process.”                      United States v.

Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (internal citations

omitted); see also United States v. Onwuemene, 933 F.2d 650, 651

(8th Cir. 1991); United States v. Borrero-Isaza, 887 F.2d 1349,

1355   (9th    Cir.     1989);   U.S.S.G.       §     5H1.10   (“Race    .    .    .   [and

n]ational [o]rigin . . . are not relevant in the determination

of a sentence.”).             However, there is no indication that the

district court relied on Rudi’s national origin in imposing the

sentence.      Rudi relies entirely on one statement -- “Mr. Rudi

came   to    this     country”   --   that      the    court   made     in   describing

Rudi’s      personal    and    education        background,     factors       that     are

properly considered under 18 U.S.C. § 3553(a)(1).                             The court

made no disparaging remarks about Rudi’s alienage and made no

statement     suggesting       that   it   was      relying    on   Rudi’s        national

origin in imposing the sentence.                We are unable to find that the

district      court    impermissibly       based       the   sentence    on       national

origin.



                                           V.

       For the foregoing reasons, the judgment of the district

court is in all respects

                                                                              AFFIRMED.

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