     Case: 10-60586 Document: 00511489756 Page: 1 Date Filed: 05/26/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 26, 2011
                                     No. 10-60586
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

CORNELIUS HENLEY,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 4:09-CR-48-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Cornelius Henley appeals from the 60-month sentence of imprisonment
imposed for his guilty plea conviction for aiding and abetting another to make
false statements to a federally licensed firearm dealer in connection with the
purchase of a firearm. He argues that the district court erred by determining
that he warranted an upward departure under U.S.S.G. § 4A1.3(a) and by failing
to follow the correct procedure when calculating the extent of the departure
under § 4A1.3(a)(4).

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-60586 Document: 00511489756 Page: 2 Date Filed: 05/26/2011

                                 No. 10-60586

      Although the district court stated at sentencing that it would impose an
“upward departure,” it also stated that it would “impose a sentence that is above
the advisory guideline range,” discussed the various 18 U.S.C. § 3553(a) factors
that justified the sentence, and noted that it received guidance from United
States v. Herrera-Garduno, 519 F.3d 526 (5th Cir. 2008). Moreover, because the
district court clarified in the Statement of Reasons that it was imposing a
sentence outside the advisory sentencing guidelines system, we review the
imposed sentence as a non-guideline sentence. See United States v. Jacobs, 635
F.3d 778, 780 n.1 (5th Cir. 2011).
      Henley’s arguments specifically regarding the § 4A1.3(a) departure are not
relevant as to the imposed non-guideline sentence. Moreover, our review of the
district court’s reasons for applying the variance and determining the extent of
the variance show that the imposed sentence was not unreasonable under the
circumstances. See Herrera-Garduno, 519 F.3d at 532.
      The judgment of the district court is AFFIRMED.




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