United States v. Brian Rhodes ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3332
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brian Lee Rhodes
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: September 21, 2020
Filed: November 4, 2020
[Unpublished]
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Before BENTON, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Brian Rhodes pleaded guilty to three counts of coercion and enticement of a
minor, in violation of 18 U.S.C. § 2422(b), and one count of distribution of child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1). At sentencing, the
district court1 sentenced Rhodes to three concurrent terms of 360 months in prison on
the coercion and enticement counts and 240 months, also to be served concurrently,
on the distribution count. The resulting sentence of 360 months was at the bottom of
the advisory guidelines range of 360 months to life. The district court imposed a
fifteen-year term of supervised release on each count, to be served concurrently. In
addition, the court imposed a $100 special assessment per count and a $5,000
mandatory special assessment under the Justice for Victims of Trafficking Act
(JVTA), 18 U.S.C. § 3014. The fine range for the offense was from $50,000 to
$250,000. However, a fine was waived and restitution was not identified. On appeal,
Rhodes argues the district court erred by imposing the $5,000 special assessment. He
also challenges the substantive reasonableness of his sentence. We affirm.
“[Section] 3014 expressly limits its special assessment to ‘non-indigent’
persons.” United States v. Kelley, 861 F.3d 790, 799 (8th Cir. 2017); see also 18
U.S.C. § 3014(a)(3) (stating that “the court shall assess an amount of $5,000 on any
non-indigent person or entity convicted of” enumerated offenses, including the sexual
exploitation of children). Rhodes argues the district court erred by ordering the
$5,000 special assessment (1) without making an express finding that he was
non-indigent and (2) based on a record that fails to support such a finding. Because
Rhodes raises this argument for the first time on appeal, we review for plain error.
To obtain relief, Rhodes “must show that there was an error, the error is clear or
obvious under current law, the error affected the party’s substantial rights, and the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
To determine whether a defendant is non-indigent for purposes of the JVTA,
a court can consider a defendant’s current financial situation and his ability to pay in
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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the future. Kelley, 861 F.3d at 801. An individual may be indigent for purposes of
appointing counsel and, at the same time, may be non-indigent for purposes of the
JVTA special assessment. Id. At sentencing, the district court adopted the
Presentence Investigation Report (PSR).2 The PSR contained factual information
about Rhodes’s “overall financial status,” including his assets, liabilities, net worth,
education, work history, and recent annual income. The PSR indicated that Rhodes’s
net worth at the time of sentencing was slightly negative and stated that, “[b]ased on
the defendant’s present financial status, it appears [Rhodes] is unable to pay a
monetary obligation in addition to restitution.” The PSR also indicated that Rhodes
completed high school and some portion of community college. He had a consistent
work history and had reported an adjusted gross annual income of between $38,723
and $45,457 to the Internal Revenue Service for the three years prior to his
incarceration.
The district court made no additional findings of fact when it imposed the
$5,000 special assessment. The court noted it was “imposing the $5,000 victim
assessment and . . . prioritizing that over the imposition of a fine,” and instructed
Rhodes and the United States Probation Office to develop a monthly payment plan
once Rhodes was on supervised release.
The district court’s ruling reflects at least an implicit determination that Rhodes
was “non-indigent,” and we conclude that this implicit finding was both adequate
under the circumstances and not plainly erroneous. Rhodes made no objection to the
financial facts in the PSR or to the imposition of the special assessment. Under these
circumstances, the district court did not commit plain error by relying on the facts as
presented in the PSR in coming to its conclusion that the mandatory special
2
The court adopted the PSR with a slight factual amendment about the
underlying offense conduct.
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assessment was applicable to Rhodes and that he had the ability to pay the assessment
in the future. Further, despite the record showing that Rhodes had a slightly negative
net worth at the time of sentencing, given his future ability to work and his access to
a payment plan, we conclude there was no plain error in finding that Rhodes is non-
indigent for purposes of the $5,000 special assessment. See Kelley, 861 F.3d at 802
(concluding that the district court did not clearly err in finding the defendant non-
indigent for purposes of JVTA because, even though he had a slightly negative net
worth at the time of sentencing, he had the ability to earn money in the future); see
also Poitra, 648 F.3d at 889 (refusing to grant relief, even upon a finding that the
district court committed plain error, because the error was “not egregious enough or
of such magnitude that, if uncorrected, would seriously affect the fairness, integrity,
or public reputation of judicial proceedings”).
Rhodes also argues his sentence was substantively unreasonable because the
district court did not give sufficient weight to mitigating evidence about his traumatic
childhood. “A district court abuses its discretion and imposes an unreasonable
sentence when it fails to consider a relevant and significant factor, gives significant
weight to an irrelevant or improper factor, or considers the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v. Green,
946 F.3d 433, 440 (8th Cir. 2019) (quoting United States v. Kreitinger, 576 F.3d 500,
503 (8th Cir. 2009)). The record establishes that the district court sufficiently
considered the statutory sentencing factors, 18 U.S.C. § 3553(a), and did not rely on
an improper factor or commit a clear error of judgment. Id. The court expressly
noted that the mitigating evidence about Rhodes’s childhood weighed in favor of its
decision to impose concurrent bottom-of-the-range sentences. In the view of the
district court, the seriousness of the offense still carried enough weight that a
downward variance was not warranted. We find no abuse of discretion.
The judgment is affirmed.
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