* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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. Ho wever, 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 ClerkNo. 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 theapplicableguidelines rangeand lamented “theglitch” that prevented Rho des 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 guidelinessentence under thecircumstancesofthecase. 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. H easserts 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 variancefrom theapplicableguidelines rangewould 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. U nited Statesv. Gall , 128 S. Ct. 586, 597 (2007). The district court commits a procedural error if it miscalculates or fails to cal culate 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 hisNo. 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.