     Case: 11-10274     Document: 00511920799         Page: 1     Date Filed: 07/13/2012




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

                                                                            FILED
                                                                            July 13, 2012
                                     No. 11-10274
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LESTER HENDERSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-206-7


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Lester Henderson appeals following his guilty plea conviction for
distribution of five grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). Henderson waived his right to appeal his conviction
and sentence except that he reserved the right to appeal a sentence exceeding
the statutory maximum punishment, an arithmetic error at sentencing, and the
voluntariness of his guilty plea or waiver. He was sentenced to 135 months of
imprisonment to run consecutively to two yet-to-be imposed state sentences and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10274   Document: 00511920799      Page: 2   Date Filed: 07/13/2012

                                  No. 11-10274

four years of supervised release. Henderson argues that the district court erred
by ordering his sentence to run consecutively to yet-to-be-determined state
sentences and that his sentence was substantively unreasonable.
      Henderson’s argument that a federal court lacks authority to order a
sentence to run consecutively to a yet-to-be-determined state sentence is
foreclosed by our precedent. See United States v. Brown, 920 F.2d 1212, 1216-17
(5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d
468, 472-73 (5th Cir. 2006).     The Supreme Court recently confirmed the
correctness of our precedent by holding that a district court has the authority to
impose such consecutive sentences. Setser v. United States, 132 S. Ct. 1463,
1466-73 (2012). Because Henderson’s challenge to the consecutive sentencing
order is foreclosed, we pretermit whether Henderson’s appeal of this issue is
barred by his appeal waiver. See United States v. Story, 439 F.3d 226, 230-31
(5th Cir. 2006); United States v. Despeaux, 384 F. App’x 369, 369 (5th Cir. 2010).
      Henderson also contends that the sentence was substantively
unreasonable. This challenge to his sentence does not fall within an exception
to his appeal waiver. A review of the record indicates that Henderson knowingly
and voluntarily waived his right to appeal because he indicated that he had
reviewed and understood the appeal waiver. See United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005). Therefore, the appeal waiver bars consideration
of this issue.
      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s motions for
dismissal of the appeal and an extension of time to file a brief and Henderson’s
incorporated motion for holding the case in abeyance are DENIED as
unnecessary.




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