United States v. Larry Henderson , 381 F. App'x 620 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1082
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Larry L. Henderson, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: June 14, 2010
Filed: June 18, 2010
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Larry Henderson was convicted of twenty counts of manufacturing forged
securities, in violation of 18 U.S.C. § 513(a), and sentenced to sixty three months
imprisonment followed by twenty four months of supervised release. On December
31, 2009, the district court1 revoked Henderson's period of supervised release and
sentenced him to twenty four months imprisonment. Henderson appeals.
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
We review a district court's sentence on revocation of a supervised release for
procedural soundness and substantive reasonableness, adopting "the same
reasonableness standard that applies to initial sentencing proceedings[.]" United
States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008) (quotation omitted).
Henderson was charged with a number of violations of the conditions of his
release. He admitted that he had traveled outside the state without court permission
and had not made any payments toward his restitution obligations, both Grade C
violations under the guidelines. See U.S.S.G. § 7B1.4. On October 15, 2009,
Henderson was indicted by a federal grand jury which charged him again with
securities fraud; the district court concluded that this was a Grade B violation. Given
Henderson's criminal history category, the guideline range was seven to thirteen
months for each Grade C violation and eighteen to twenty four months for the Grade
B violation. Thus, he was sentenced at the high point of the advisory guidelines. See
U.S.S.G. § 7B1.1(b) ("Where there is more than one violation of the conditions of
[supervised release], . . . the grade of the violation is determined by the violation
having the most serious grade.").
Because Henderson raised no objection to procedural errors at his revocation
hearing, we review the district court's procedure for plain error, United States v. Gray,
533 F.3d 942, 945 (8th Cir. 2008), and find none. Henderson argues that the district
court committed procedural error by considering only his criminal background and not
other factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38,
50-51 (2007). The district court discussed numerous other § 3553 factors at length,
however, including the need to protect the public from further crimes given
Henderson's extensive history of previous fraud convictions and revocations of
supervised release.
Applying a deferential abuse of discretion standard, Gall, 552 U.S. at 56, we
also find Henderson's sentence substantively reasonable. We accord the sentence a
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presumption of reasonableness since it falls within the guideline range. See United
States v. Harris, 493 F.3d 928, 932 (8th Cir. 2007). "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. Miner, 544 F.3d 930, 932 (8th Cir. 2008). Henderson
argues that the district court placed too much weight on his indictment because the
allegations within it were unproven.
A court may find that a defendant violated a supervised released condition by
only a preponderance of the evidence. 18 U.S.C. § 3583(e)(3). The district court
properly considered and weighed the federal grand jury's finding of probable cause
to believe that Henderson engaged in fraud, particularly when he engaged in new
fraud within months of his release from imprisonment for similar crimes. On this
record we find no abuse of discretion.
The judgment of the district court is affirmed.
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