     Case: 11-40285     Document: 00511710410         Page: 1     Date Filed: 12/30/2011




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

                                                                            FILED
                                                                        December 30, 2011
                                     No. 11-40285
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TREVOR HENDERSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:10-CR-1-8


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Trevor Henderson received a 51-month prison term following his guilty
plea to one count of possession of methamphetamine with intent to distribute.
He challenges the district court’s calculation of the sentencing guidelines range
under U.S.S.G. § 2D1.1, asserting that the court reversibly erred by including
in the drug quantity the 56.7 grams of methamphetamine he promised to obtain
for undercover officers but did not deliver. Inclusion of that amount increased
his offense level from 12 to 26.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40285    Document: 00511710410     Page: 2   Date Filed: 12/30/2011

                                  No. 11-40285

      According to Henderson, he did not intend or have the capability to deliver
the drugs but instead intended to rob the buyers of the purchase price. The
district court erroneously ruled that his intent and/or capability were irrelevant
once he arrived for a face-to-face meeting with the buyers. See § 2D1.1, cmt.
(n.12); United States v. Davis, 478 F.3d 266, 268-70 (5th Cir. 2007). The
Government fails to show that the significant procedural error was harmless.
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). Accordingly, we vacate
Henderson’s sentence and remand for resentencing. See Delgado-Martinez, 564
F.3d at 752-53.
      Henderson also asserts that the district court reversibly erred by
classifying as relevant conduct his possession of .18 grams of methamphetamine
for personal use while on pre-trial release. He correctly concedes, however, that
the alleged error will not affect his guidelines range.       Thus, it is not a
“significant procedural error.” See Gall, 552 U.S. at 597 (defining “significant
procedural error” warranting reversal to include improper calculation of the
guidelines range).
      SENTENCE VACATED AND REMANDED.




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