                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2009

USA v. Henry
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2594




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Henry" (2009). 2009 Decisions. Paper 1867.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1867


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 08-2594


                           UNITED STATES OF AMERICA,

                                            v.

                                   KERONE HENRY,
                                       a/k/a "J"

                                Kerone Henry, Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           District Court No. 3-06-cr-00405-3
                     District Judge: The Honorable Edwin M. Kosik


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 30, 2009

          Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges

                                (Filed: February 12, 2009)


                                        OPINION




SMITH, Circuit Judge.

      Appellant Kerone Henry challenges the length of his term of imprisonment.1


      1
        The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court
has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Henry pleaded guilty to conspiracy to distribute marijuana and crack cocaine in violation

of 21 U.S.C. § 846, and aiding and abetting the interference with interstate commerce by

robbery in violation of 18 U.S.C. §§ 1951 and 2. His advisory Sentencing Guidelines

range was 121 to 151 months of imprisonment. On May 19, 2008, the United States

District Court for the Middle District of Pennsylvania sentenced Henry to 150 months of

imprisonment. We will affirm.

       We review the District Court’s sentence first for procedural reasonableness, then

for substantive reasonableness. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.

2008). In doing so, we apply the “abuse of discretion” standard. United States v. Wise,

515 F.3d 207, 217–18 (3d Cir. 2008). “[A] district court will be held to have abused its

discretion if its decision was based on a clearly erroneous factual conclusion or an

erroneous legal conclusion.” Id. at 217. Here, Henry admits his sentence fell within his

advisory Sentencing Guidelines range, and he does not claim any error in the calculation

of that range. This weighs heavily in favor of his sentence’s procedural and substantive

reasonableness. See Gall v. United States, 128 S. Ct. 586, 591 (2007) (“[W]hen a district

judge’s discretionary decision in a particular case accords with the sentence the United

States Sentencing Commission deems appropriate ‘in the mine run of cases,’ the court of

appeals may presume that the sentence is reasonable.”).

       Nevertheless, Henry argues that his sentence was unreasonable because it created a

sentencing disparity between his sentence and those imposed on two co-defendants who

also pleaded guilty to the same offenses. He asserts that the District Court either 1)


                                             2
committed legal error by not recognizing that it had the authority to reduce his sentence to

avoid unwarranted sentencing disparities, or 2) abused its discretion by failing to

adequately consider the need to avoid unwarranted sentencing disparities as mandated by

18 U.S.C. § 3553(a)(6).

       The record does not support Henry’s claims. First, the District Court clearly

recognized its power to adjust Henry’s sentence to avoid unwarranted sentencing

disparities. After Henry raised the sentencing disparity issue at his sentencing hearing,

the District Court asked a number of questions about the nature and circumstances of the

sentences imposed on Henry’s two co-defendants. This shows that the District Court

appreciated the fact that 18 U.S.C. § 3553(a) required it to consider, as one of many

factors, the need to avoid unwarranted sentencing disparities.

       Second, the District Court thoughtfully and meaningfully considered the need to

avoid unwarranted sentencing disparities. As the District Court discovered during

Henry’s sentencing hearing, a number of differences exist between Henry and his two co-

defendants. Most significantly, unlike Henry, both of his co-defendants cooperated with

the Government, and the Government made downward departure motions for them,

pursuant to Sentencing Guidelines § 5K1.1, because of their substantial assistance.

Additionally, unlike Henry, one co-defendant negotiated a plea agreement that specified

the length of his imprisonment. “So long as factors considered by the sentencing court

are not inconsistent with those listed in § 3553(a) and are logically applied to the

defendant’s circumstances, we afford deference to the court’s ‘broad discretion in


                                              3
imposing a sentence within a statutory range.’” United States v. Parker, 462 F.3d 273,

278 (3d Cir. 2006) (quoting United States v. Booker, 543 U.S. 220, 233 (2005)). Here,

we see nothing illogical about the manner in which the District Court applied 18 U.S.C. §

3553(a) to Henry’s particular circumstances.

       Finally, “a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence

designed to lessen disparity between co-defendants’ sentences.” Id. at 277. This is

because “Congress’s primary goal in enacting § 3553(a)(6) was to promote national

uniformity in sentencing rather than uniformity among co-defendants in the same case.”

Id. Here, Henry has not suggested that upholding his sentence would undermine national

uniformity in sentencing, only that it would create sentencing disparities between himself

and his co-defendants. This is not enough to persuade us that Henry’s sentence was

unreasonable. Accordingly, we will affirm the sentence that the District Court imposed.




                                               4
