                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4326




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"USA v. Henry" (2006). 2006 Decisions. Paper 346.
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                                          NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT



                  No. 05-4326


       UNITED STATES OF AMERICA

                        v.

              ANDREW HENRY

                                    Appellant



 On Appeal from the United States District Court
     for the Middle District of Pennsylvania
          District Court No. 03-cr-00152
     District Judge: Hon. William J. Nealon


   Submitted under Third Circuit LAR 34.1(a)
               on July 14, 2006

Before: SMITH, WEIS, and ROTH, Circuit Judges

        (Opinion Filed October 6, 2006)



                 OPINION
ROTH, Circuit Judge:


       Andrew Henry appeals the judgment of sentence imposed by the United States

District Court for the Middle District of Pennsylvania.

I.     Factual Background and Procedural History

       As the facts are well known to the parties, we give only a brief description of the

issues and procedural posture of the case.

       On March 8, 2002, Andrew Henry was stopped by Edwardsville (Pennsylvania)

police for failing to stop at a red light. A subsequent search of the car and occupants

revealed a loaded 9-millimeter semi-automatic pistol and three baggies containing illegal

drugs. Henry was arrested and released on bond. On June 17, 2003, a federal grand jury

indicted Henry for possession of a firearm while being a convicted felon, in violation of

18 U.S.C. § 922(g)(1).

       On March 25, 2004, a confidential informant told agents of the Pennsylvania

Bureau of Narcotics Investigation and Drug Control that he could purchase crack cocaine

from an individual known as “Turtle.” The resulting sting operation ended with Turtle,

who turned out to be Henry, selling the informant six grams of crack cocaine and being

arrested with heroin and marijuana in his possession. On June 9, 2004, a federal grand

jury returned a five-count superceding indictment against Henry that charged him with

possession of a firearm while being a convicted felon, in violation of 18 U.S.C. §

922(g)(1) (Count I); possession of marijuana and cocaine base, in violation of 21 U.S.C. §


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844(a) (Count II); possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 844(a)(1) (Count III); distribution and possession with intent to distribute in excess of

five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count IV); and

possession of heroin and marijuana, in violation of 21 U.S.C. § 844(a), after three prior

drug convictions became final pursuant to 21 U.S.C. § 851 (Count V).

       On August 5, 2004, Henry pled guilty to Count IV of the indictment pursuant to a

written plea agreement. The Presentence Report concluded that, because Henry met the

criteria for the career offender designation in U.S.S.G. § 4B1.1, his Total Offense Level

was 31 and his Criminal History Category was VI. This corresponded to a Guideline

Range of 188-235 months.

       On November 10, 2004, the District Court sentenced Henry to 188 months

imprisonment. On August 10, 2005, we remanded the case for resentencing in light of the

Supreme Court’s holding in United States v. Booker, 543 U.S. 220 (2005). On August

31, 2005, the District Court conducted the resentencing hearing and again sentenced

Henry to 188 months. This appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 (“The district

courts of the United States shall have original jurisdiction . . . of all offenses against the

laws of the United States.”). We have jurisdiction under 28 U.S.C. § 1291. Also, we

have jurisdiction to review the sentence for reasonableness pursuant to 18 U.S.C. §

3742(a)(1). United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). Henry has the

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burden of demonstrating the unreasonableness of the sentence. Id. at 332.

III.   Discussion

       A.     Henry’s Classification as a Career Offender1

       On appeal, Henry challenges his placement in the career offender category

pursuant to § 4B1.1 on the ground that one of the predicate convictions was both

“relatively minor” and remote in time, and, therefore, the career offender designation

overstates the seriousness of Henry’s criminal history. The District Court has discretion

to depart downward in offense level and criminal history category where a career

offender's formal criminal history misrepresents the defendant's actual criminal past and

probability of recidivism. United States v. Shoupe, 35 F.3d 835, 839 (3d Cir. 1994).

       The predicate offense in question consists of the following: On July 23, 1994,

Henry was seen sitting naked in the middle of a road. After telling the police that he was

searching for the Lord and could not leave the area, he became physically combative with

the officers. The police were forced to use mace in their attempt to subdue Henry, who

claimed that he had ingested acid.

       To the extent that Henry argues that the District Court erred in refusing to depart

downward based on the nature of the predicate conviction, we do not review a district

court’s discretionary decision not to depart from the Guidelines. Cooper, 437 F.3d at



   1
    Since we find that the career offender category applies to Henry and sets his Total
Offense Level, the two-level enchantment for possession of a firearm challenged by
Henry on appeal does not affect his sentence. As such, the issue is moot.

                                             4
332-33. Henry argues, however, that as a part of our § 3553 review, we should find the

career offender classification to be unreasonable. We will not, however, conflate this

unreviewable exercise of discretion with our examination of the District Court’s

application of the § 3553 factors which we discuss below.

       B.     The Reasonableness of Henry’s Sentence

       Henry claims that the District Court failed to articulate fully its consideration of

the 18 U.S.C. § 3553(a) sentencing factors. For example, Henry points out that the

District Court failed to address 18 U.S.C. § 3553(a)(6), to wit, how a 188-month sentence

would avoid unwarranted sentence disparities.

       Henry’s assertions are not borne out in the record. The sentencing transcripts

reveal that the District Court articulated and considered the § 3553(a) sentencing factors.

For example, the District Court noted that:

       [Henry’s] history and his characteristics all fit within the comments in 18 United
       States Code, Section 3553, which the Court must consider in imposing the
       sentence. Certainly the violence would make him a danger to the public. The
       handgun, of course, would also constitute a threat to the public generally. And
       while much of his problem has been or problems have been traced to drug use, his
       conduct has been very dangerous and very destructive.

       So that we have here significant involvement with drugs. We have a combative
       attitude. We have possession of handguns and we have one who, when released on
       bond, in essence, became a fugitive.

       Moreover, the District Court does not have to mechanically recite every sentencing

factor. Cooper, 437 F.3d at 329 (“Nor must a court discuss and make findings as to each

of the § 3553(a) factors if the record makes clear the court took the factors into account in


                                              5
sentencing.”). Consequently, the District Court’s failure to recite § 3553(a)(6) does not

render the sentence unreasonable since the record shows that the § 3553 factors were

taken into account. As such, Henry’s sentence is not unreasonable.

IV.    Conclusion

       For the reasons stated above, we will affirm the judgment of sentence of the

District Court.




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