     Case: 14-30016       Document: 00512742608         Page: 1     Date Filed: 08/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 14-30016                                 FILED
                                   Summary Calendar                         August 22, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAMARIO HENDERSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:10-CR-302-8


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Damario Henderson appeals his 36-month concurrent sentences imposed
following his guilty-plea convictions for: conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371; and health-care fraud, in violation of 18
U.S.C. §§ 1347 and 2. The sentences represented either an upward departure
from the advisory Guidelines-sentencing range, pursuant to Guideline § 4A1.3
(departures based on inadequacy of criminal history category) or an upward


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-30016     Document: 00512742608      Page: 2    Date Filed: 08/22/2014


                                  No. 14-30016

variance, pursuant to the 18 U.S.C. § 3553(a) factors. As explained below,
Henderson challenges both the procedural and substantive reasonableness of
his sentences.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still calculate properly the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). But, Henderson did
not object, on the grounds raised on appeal, in district court to the procedural
or substantive reasonableness of the sentences; therefore, review is only for
plain error. United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
      Under that standard, Henderson must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.
      Henderson contends the sentence is procedurally unreasonable because
the district court did not adequately explain the extent of its departure or
variance or why a lesser sentence would not satisfy the § 3553(a) requirements.
To the contrary, the record confirms the district court provided adequate,
fact-specific reasons for the selected sentence, stating the 36-month sentences
were intended to protect society and deter similar, future offenses. The court
also noted Henderson’s lengthy criminal history, the likelihood he would
continue to commit other crimes, and the § 3553(a) factors. See Gall, 552 U.S.



                                         2
    Case: 14-30016    Document: 00512742608      Page: 3   Date Filed: 08/22/2014


                                 No. 14-30016

at 50. Further, the court’s explanation allows for meaningful appellate review
and promotes the perception of fair sentencing. See United States v. Whitelaw,
580 F.3d 256, 264 (5th Cir. 2009). Accordingly, the district court did not
commit the requisite clear or obvious error in explaining the sentence.
      Henderson next contends the court failed to follow the incremental
method for calculating the extent of the departure, as set forth in Guideline
§ 4A1.3(a)(4)(B) (upward departures from category VI). The district court,
however, imposed alternatively a non-Guidelines variance, to which the
incremental approach does not apply. See United States v. Mejia-Huerta, 480
F.3d 713, 723 (5th Cir. 2007) (reviewing, for harmless error, application of
§ 4A1.3 because non-Guidelines sentence was also based on consideration of
§ 3553(a) factors). Again, the requisite clear or obvious error is lacking.
      Finally, Henderson contends his sentence is substantively unreasonable
because the court: disregarded the sentencing disparity between him and his
co-conspirators; and failed to properly consider the § 3553(a) factors. The court
listened to Henderson’s counsel and, as discussed above, made an
individualized assessment based on, inter alia, Henderson’s personal history
and characteristics. His challenge to the 36-month sentence amounts to no
more than a disagreement with the court’s balancing of the § 3553(a) factors.
This court, however, is highly deferential on such balancing because “the
sentencing court is in a better position to find facts and judge their import
under the § 3553(a) factors”. United States v. Hernandez, 633 F.3d 370, 375
(5th Cir. 2011).
      Additionally, this court has upheld variances and departures greater
than the increase to Henderson’s sentences, from the top-of-the-Guidelines-
range 18 months’ imprisonment to 36 months. See United States v. Brantley,
537 F.3d 347, 349–50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430,



                                        3
    Case: 14-30016    Document: 00512742608    Page: 4   Date Filed: 08/22/2014


                                No. 14-30016

441–42 (5th Cir. 2006). The court, acting within its discretion, did not commit
the requisite clear or obvious error in imposing Henderson’s sentence.
      AFFIRMED.




                                      4
