United States v. Jerome Henry ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4066
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROME HENRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-00416-TLW-7)
Submitted: October 16, 2012 Decided: November 2, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bobby G. Frederick, FREDERICK LAW OFFICE, Myrtle Beach, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Henry pled guilty in accordance with a written
plea agreement to conspiracy to distribute five kilograms or
more of cocaine, 280 grams or more of cocaine base, fifty
kilograms or more of marijuana, and a quantity of
methamphetamine, in violation of 21 U.S.C. § 846 (2006). He was
sentenced to 188 months in prison. Henry now appeals. His
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), claiming that the sentence is
unreasonable but concluding that there are no meritorious issues
for appeal. Henry has filed a pro se supplemental brief raising
additional issues. We affirm.
I
Counsel questions whether the sentence is reasonable.
According to the presentence investigation report (PSR), Henry
was responsible for 1583.91 grams of crack and 28.35 grams of
powder cocaine, for a base offense level of 34. Two levels were
added for possession of a firearm, two levels were added for
role in the offense, and three levels were subtracted for
acceptance of responsibility. See U.S. Sentencing Guidelines
Manual §§ 2D1.1(a)(5)(c)(3), 2D1.1(b)(1), 3B1.1(c), 3E1.1
(2010). Henry’s total offense level was 35. He was in criminal
2
history category IV. Henry’s Guidelines range was 235-293
months.
At sentencing, the Government informed the court that
it had agreed to withdraw the firearm enhancement. There were
no objections to the PSR. With the firearm adjustment, Henry’s
offense level was 33, and his Guidelines range was 188-235
months. The court heard arguments from counsel and Henry’s
allocution. Two of Henry’s family members spoke. The court
then sentenced Henry to 188 months in prison. In imposing
sentence, the court stated that it had considered the 18 U.S.C.
§ 3553(a) (2006) sentencing factors. The court commented that
Henry had not served any significant time for past offenses.
While he had a criminal record, he did not have any prior drug
convictions, and his overall record was not as significant as
the records of many defendants. The court stated that Henry had
shown no respect for the law. Further, Henry was on probation
when he committed the instant offense. The court concluded that
a sentence at the low end of Henry’s Guidelines range was
appropriate.
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.We first determine whether the district court correctly
3
calculated the defendant’s advisory Guidelines range, considered
the applicable § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. United States v. Lynn, 592 F.3d 572, 575-76
(4th Cir. 2010). With respect to the explanation of the
sentence, the court “must place on the record an individualized
assessment based on the particular facts of the case before it.”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If
the sentence is free of procedural error, we then review the
substantive reasonableness of the sentence. Lynn, 592 F.3d at
576. This review requires us to consider the totality of the
circumstances and to decide “whether the sentence was reasonable
— i.e., whether the [d]istrict [j]udge abused his discretion in
determining that the § 3553(a) factors supported” the selected
sentence. Gall, 552 U.S. at 56.
We conclude that the district court did not abuse its
discretion in imposing the 188-month sentence. The court fully
complied with the required procedures, properly calculating the
Guidelines range, * considering the arguments presented, providing
*
We reject Henry’s claims in his pro se brief, all of which
he raises for the first time on appeal and which, accordingly,
are subject to plain error review. See United States v. Olano,
507 U.S. 725, 732-37 (1993). First, Henry is factually
incorrect when he claims that the PSR reflected that he had only
six criminal history points: the PSR assessed six points for
various convictions and two points because the instant offense
(Continued)
4
an individualized assessment, and taking into account the
§ 3553(a) factors. The sentence, which falls within the
Guidelines range, is presumptively reasonable, see United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), and Henry did
not rebut this presumption.
II
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm. This court requires that counsel inform
Henry, in writing, of the right to petition the Supreme Court of
the United States for further review. If Henry requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
was committed while Henry was on probation. Second, the PSR
states that David McFarlin and Rodney McNeil sold crack cocaine
for Henry, and Charles Jones was a runner for Henry in the drug
business. There was no objection to these statements. We
conclude that Henry’s offense level was properly enhanced by two
levels based on his role in the offense.
Finally, Henry complains that the PSR in his
possession does not show that the firearm enhancement was
withdrawn. It is unclear from the record before us whether the
copy of the PSR that was submitted to the Bureau of Prisons
reflects withdrawal of the enhancement. Further, Henry does not
assert that he has been prejudiced by the claimed omission.
While we reject his conclusory claim, Henry might present his
concern to the district court for consideration.
5
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Henry.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
6