United States v. Brian Henderson , 631 F. App'x 118 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4399
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN DARNELL HENDERSON, a/k/a B,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00023-RLV-DCK-2)
Submitted: October 30, 2015 Decided: November 20, 2015
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina,
for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Brian Darnell Henderson of (1) conspiracy
to possess with intent to distribute at least 50 grams of
cocaine base and at least 5 kilograms of cocaine, in violation
of 21 U.S.C. § 846 (2012) (Count 1); (2) possession with intent
to distribute at least 50 grams of cocaine base, in violation of
21 U.S.C. § 841(a) (2012) (Count 3); (3) using and carrying a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2012) (Count 4); and (4) possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e) (2006) (Count 5). The district court
imposed life sentences on Count 1 and 3, a concurrent 120-month
sentence on Count 5, and a consecutive mandatory minimum
sentence of 60 months on Count 4. On appeal, we affirmed
Henderson’s conviction and sentence. United States v.
Henderson, 380 F. App’x 295, 296-97 (4th Cir. 2010) (No. 08-
5047).
Subsequent to Henderson’s first appeal, we decided United
States v. Simmons, holding that a prior conviction qualifies as
a felony for sentencing enhancement purposes only if the prior
conviction actually exposed that defendant to a term of
imprisonment exceeding one year. 649 F.3d 237, 241-45 (4th Cir.
2011) (en banc). Henderson filed a 28 U.S.C. § 2255 (2012)
motion, seeking relief pursuant to Simmons. The district court
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granted Henderson relief under Simmons by vacating his
conviction in Count 5 and ordering resentencing. At
resentencing the district court imposed concurrent terms of 188
months on Count 1 and 3, to be served consecutive to the
mandatory minimum term of 60 months on Count 4.
On appeal, Henderson’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issue for appeal, but questioning
whether (1) the district court erred in determining the drug
weight attributable to Henderson at sentencing; (2) the district
court erred in denying Henderson’s motion to suppress; (3) the
question of drug weight for sentencing purposes needed to be
submitted to a jury under Alleyne v. United States, 133 S. Ct.
2151 (2013); and (4) Henderson’s sentence is substantively
unreasonable in light of the sentences his coconspirators
received. Henderson has filed a pro se supplemental brief,
raising several issues identified by counsel, as well as
asserting that the district court’s instruction to the jury on
Count 4 constructively amended the indictment. We affirm in
part and dismiss in part.
“For sentencing purposes, the government must prove the
drug quantity attributable to a particular defendant by a
preponderance of the evidence.” United States v. Bell, 667 F.3d
431, 441 (4th Cir. 2011). When determining drug quantity
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attributable to a defendant, “[w]here there is no drug seizure
or the amount seized does not reflect the scale of the offense,
the court shall approximate the quantity of the controlled
substance.” U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. n.5
(2013). While a district court may rely on witness testimony to
approximate drug quantity, “when the approximation is based only
upon uncertain witness estimates, district courts should
sentence at the low end of the range to which the witness[]
testified.” Bell, 667 F.3d at 441 (internal quotation marks
omitted).
As Henderson did not object to the drug quantity
determination at resentencing, we review his argument on appeal
for plain error. United States v. Strieper, 666 F.3d 288, 292
(4th Cir. 2012). To satisfy the plain error standard, Henderson
must show (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) that seriously affects the fairness,
integrity or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 731-32, 735-36 (1993).
Under the applicable version of the U.S. Sentencing
Guidelines Manual, a base offense level of 34 was appropriate if
the combined marihuana equivalency of the drugs attributable to
Henderson was “[a]t least 3,000 KG but less than 10,000 KG.”
USSG § 2D1.1(c)(3) (drug quantity table). Even discounting
testimony disputed by Henderson and relying on the drug
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quantities stipulated to by the Government with respect to the
execution of a search warrant on July 31, 2006, the record
contains sufficient evidence to support the conclusion that
Henderson possessed an amount of powder cocaine and cocaine base
with a marihuana equivalence of at least 3000 KG. See § 2D1.1
cmt. n.8. Accordingly, we conclude that Henderson has not shown
any error that affected his substantive rights.
Henderson’s claim regarding his motion to suppress is
foreclosed by the law of the case. “The law of the case
doctrine posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in
subsequent stages in the same case.” United States v. Lentz,
524 F.3d 501, 528 (4th Cir. 2008) (internal quotation marks
omitted). The doctrine applies to both subsequent proceedings
in the trial court and on a later appeal. Id. We addressed and
rejected Henderson’s challenge to the district court’s denial of
his motion to suppress on his initial appeal, Henderson, 380 F.
App’x at 296-97, and we are bound by that ruling.
Next, Henderson argues that the district court’s drug
quantity determination at sentencing was invalid because it was
not submitted to a jury pursuant to Alleyne v. United States,
133 S. Ct. 2151 (2013). We reject this argument. The district
court’s drug quantity determination merely controlled
Henderson’s Sentencing Guidelines range, and did not alter the
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statutory minimum sentenced he faced. See id. at 2163
(acknowledging that Alleyne’s holding “does not mean that any
fact that influences judicial discretion must be found by a
jury”).
We review the substantive reasonableness of Henderson’s
sentence for plain error. Olano, 507 U.S. at 731-32, 735-36.
Substantive reasonableness is determined by considering the
totality of the circumstances, and if the sentence imposed falls
within or below the properly-calculated Guidelines range, we
apply a presumption of reasonableness. United States v. Susi,
674 F.3d 278, 289 (4th Cir. 2012). Henderson has not rebutted
that presumption, and we conclude that the sentence imposed by
the district court is substantively reasonable.
Turning to the final issue raised by Henderson, his
challenge to a jury instruction, an issue not raised on an
initial appeal is waived, Doe v. Chao, 511 F.3d 461, 465 (4th
Cir. 2007), and not subject to review on a second appeal. Cf.
Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc.,
974 F.2d 502, 505 (4th Cir. 1992). Accordingly, we dismiss
Henderson’s appeal with respect to his claim that the district
court’s instruction to the jury on Count 4 constructively
amended his indictment.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. We therefore affirm Henderson’s conviction and sentence
and dismiss his appeal with respect to his challenge regarding
the district court’s jury instruction. This court requires that
counsel inform Henderson, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Henderson requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Henderson.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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