* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10189 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUSSELL CURTIS RHODES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:05-CR-67-ALL

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Russell Curtis Rhodes appeals his sentence of 180 months of

imprisonment for aggravated sexual abuse of a child, in violation

of 18 U.S.C. § 2241(c). Rhodes pleaded guilty to the charged

offense pursuant to a plea agreement. 

On appeal, Rhodes claims that the district court erred in

failing to provide notice pursuant to FED. R. CRIM. P. 32(h) that it

would impose a non-Guideline sentence. Rhodes also argues that the

district court’s sentence was unreasonable because it considered facts
No. 06-10189

-2-

unsupported by the record or which had already been taken into

account in establishing the guideline range. 

After United States v. Booker, 543 U.S. 220 (2005), this court

continues to review sentences for reasonableness. United States v.

Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005). Nevertheless, this court has not expressly held whether

the reasonableness standard or the plain-error standard of review

applies in cases such as this, where the defendant fails to object

to the reasonableness of the sentence in the district court.

However, this court need not address the issue at this time because

even under the more generous reasonableness standard Rhodes fails

to make the requisite showing. 

Under the reasonableness standard, the district court must

more thoroughly articulate its reasons for imposing a nonguidelines sentence than when it imposes a sentence within the

Guidelines system. United States v. Smith, 440 F.3d 704, 707 (5th

Cir. 2006). Such reasons should be fact-specific and consistent

with the sentencing factors expressed in 18 U.S.C. § 3553(a). Id.

“The farther a sentence varies from the applicable Guideline

sentence, ‘the more compelling the justification based factors in

section 3553(a)’ must be.” Id. (citation omitted).

In this case, the district court imposed the non-guidelines

sentence based on the nature and characteristics of the offense and

the history and characteristics of the defendant, as well as the

need to reflect the seriousness of the offense, to deter further
No. 06-10189

-3-

criminal conduct and to protect the public, as required under

§ 3553(a). Specifically, the court noted that in deciding to issue

the variance, it considered the particularly young age of the

victim, who was only three–years old at the time of the abuse; the

fact that not only was the victim in the care or custody of Rhodes,

but is his daughter; and evidence of repeated instances of sexual

abuse of the victim. Because it was not improper for the court to

consider these factors, we conclude that Rhodes’s sentence was

reasonable. 

With respect to Rhodes’s argument that the court erred in

failing to give notice of its intent to impose a variance, thereby

denying him of a meaningful opportunity to challenge the findings

of the district court, this court finds that because Rhodes could

have raised an objection to the lack of notice under Rule 32(h),

but failed to do so, the proper standard of review is plain-error.

See United States v. Jones, 444 F.3d 430, 436 (5th Cir.)(citing

United States v. Olano, 507 U.S. 725, 731 (1993)), cert. denied,

126 S. Ct. 2958 (2006). Rhodes must therefore demonstrate that

such error is plain and affected his substantial rights. Plain

error is error that is clear under the current law. See Olano, 507

U.S. at 743. Since the law at the time Rhodes was sentenced was

not clear as to whether notice under FED. R. CRIM. P. 32(h) is

required for non-guideline sentences, Rhodes cannot demonstrate

that there was plain error, and has failed to meet the required

burden. 
No. 06-10189

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AFFIRMED.