United States v. Rudolph Anthony Nicholson

Opinion

Case: 19-10136 Date Filed: 10/03/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10136 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cr-60151-WPD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUDOLPH ANTHONY NICHOLSON, a.k.a. "R.K.S." a.k.a. "J.O.C." a.k.a. "M.G.",

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 3, 2019)

Before MARTIN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 19-10136 Date Filed: 10/03/2019 Page: 2 of 3

Rudolph Anthony Nicholson appeals the substantive reasonableness of the

30-month sentence he received after pleading guilty to using a passport obtained

by a false statement and aggravated identity theft. Nicholson asserts his sentence

was substantively unreasonable because the district court should have granted him

a greater downward variance based on his personal history and characteristics and

there is an unwarranted sentencing disparity between himself and a similarly-

situated defendant.

Nicholson invited the district court to impose the sentence he is now

challenging on appeal, and thus has waived any challenge to its reasonableness.

See United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (explaining we do

not review invited error and that a defendant invites error at sentencing when he

requests a sentence and then challenges that sentence on appeal). At the

sentencing hearing, Nicholson requested a sentence of time served for Count 2,

which he stated was a 2-month downward variance from the 8-14 month

Guidelines range because he had already served 6 months in custody. Nicholson

acknowledged the court had no discretion regarding the 24-month consecutive

sentence for Count 3. The district court imposed the sentence Nicholson requested

by sentencing him to 6 months on Count 2, followed by 24 months consecutive on

Count 3. Nicholson did not object after the imposition of the sentence. This court

2 Case: 19-10136 Date Filed: 10/03/2019 Page: 3 of 3

cannot review Nicholson’s challenge to the reasonableness of his sentence because

he invited any potential error by the district court in imposing it. See id.

AFFIRMED.