* 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should not be published and is not precedent except under the limited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 THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10249

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2008

Charles R. Fulbruge III

Clerk
No. 08-10249

2

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 ofthe 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 thatthe

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
No. 08-10249

3

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.