United States of America v. Randolph Benjamin Rodman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH BENJAMIN RODMAN,
Defendant - Appellant.
No. 15-10470
D.C. No. 2:10-cr-01047-ROS-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted May 12, 2016**
San Francisco, California
Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.
Randolph Rodman appeals the district court’s application of the U.S.
Sentencing Guidelines on remand for resentencing after our decisions in United
FILED
MAY 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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States v. Rodman, 776 F.3d 638 (9th Cir. 2015), and United States v. Rodman, 596
F. App’x 548 (9th Cir. 2015). Rodman argues that the district court engaged in
impermissible double counting by applying an enhancement for committing an
offense wherein “any firearm . . . had an altered or obliterated serial number,”
U.S.S.G. § 2K2.1(b)(4)(B), in sentencing Rodman for convictions under 18 U.S.C.
§ 922(k) and 26 U.S.C. § 5861(g) (Counts 62 and 65, respectively), both of which
involved an element of obliterating a serial number. We affirm the district court’s
sentencing under the harmless error doctrine. See United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 & n.5 (9th Cir. 2011) (per curiam).
Harmless error review applies where the district court “performs the
sentencing analysis with respect to an incorrect Guidelines range that overlaps
substantially with a correct Guidelines range such that the explanation for the
sentence imposed is sufficient even as to the correct range.” Id. at 1030 n.5. Here,
Rodman argues for an error in double counting only with respect to Counts 62 and
65. He identifies no double counting error with respect to the sentences for the
remainder of the fifteen counts of conviction, each of which was to run
concurrently, and at least some of which would have received the same base
offense level under U.S.S.G. § 2K2.1(a)(5) because they “involved a firearm
described in 26 U.S.C. § 5845(a).” Further, the U.S.S.G. § 2K2.1(b)(4)(B)
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enhancement could have been, and in fact was, applied to at least one of these same
counts. Rodman would therefore have received the same sentence even if the
district court did not apply the enhancement to the convictions under Counts 62
and 65. Accordingly, any double counting error on Counts 62 and 65 was
harmless.
AFFIRMED.
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