                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 09-2896
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                 LEON HENRY, JR.,
                                              Appellant
                                  _______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                  (D.C. Crim. Action No. 2:00-cr-00667-PBT-4)
                   District Judge: Honorable Petrese B. Tucker
                                _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 28, 2011
                                 _______________

         Before: SLOVITER, GREENAWAY, JR., and ROTH, Circuit Judges

                             (Opinion Filed May 9, 2011)

                                  _______________

                                      OPINION
                                  ________________

GREENAWAY, JR., Circuit Judge

      Appellant Leon Henry, Jr. (“Henry”) appeals the District Court’s January 8, 2009

Order revoking his probation and sentencing him to twenty-four months in prison,

running consecutive to an existing ninety-six month federal prison sentence. Henry now
files this timely appeal. Henry argues that the sentence must be vacated because it is both

procedurally and substantively unreasonable. He also argues that the District Court

improperly failed to issue a written statement of reasons for the above Guidelines

sentence imposed. Neither of these arguments is persuasive.

       For the following reasons, we will affirm the District Court’s Order.

                                  I.   BACKGROUND

       We write primarily for the benefit of the parties and shall recount only the

essential facts. Leon Henry, Jr. was employed by the Philadelphia Medical Examiner’s

Office in Pennsylvania. On December 19, 2000, a grand jury returned a superseding

indictment charging Henry with offenses related to items stolen from deceased persons,

including credit cards, checks, and credit information.1 Henry and other former

employees were also charged with the use, and attempted use, of decedents’ information

and checks to obtain money and merchandise. Henry was specifically charged with one

count of conspiracy to commit credit card fraud, in violation of 18 U.S.C. § 1029(b)(2),

and one count of possession of stolen firearms, in violation of 18 U.S.C. § 922(j).

       Henry pled guilty to both charges, pursuant to a cooperation plea agreement with

the government. Before sentencing, the government filed a motion for a downward

departure, pursuant to U.S.S.G. § 5K1.1. On April 1, 2002, the sentencing court granted

the motion and sentenced Henry to four years of probation.


1
  Fourteen other employees of the Philadelphia Medical Examiner’s Office were also
indicted.

                                             2
       On February 1, 2006, two months before Henry’s probation term was scheduled to

end, the Probation Office filed a violation petition against Henry alleging that, while on

probation, he was charged with committing new crimes (that case is Cr. No. 06-33).2 A

hearing on the violation petition was held January 8, 2009. The government asked the

District Court to impose a sentence above the advisory Guidelines range and to order that

sentence to run consecutive to the sentence imposed under Cr. No. 06-33. The District

Court found that Henry had violated the terms of his probation and granted the

government’s requests for the above guidelines range sentence. The District Court

imposed a sentence of 24 months of imprisonment, to run consecutive to the 96-month

sentence imposed in Cr. No. 06-33. Henry filed a timely appeal.

              II.     JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. §§ 3231

and 3565. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).



2
  On January 23, 2006, Henry was charged in a federal indictment with conspiracy to
make false statements to a federal firearms dealer, in violation of 18 U.S.C. § 371, and
two counts of making false statements to a firearms dealer, in violation of 18 U.S.C. §
924(a)(1)(A). The grand jury later returned a second superseding indictment charging
Henry with the same conspiracy offense, along with one count of making a false
statement to a firearms dealer, one count of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1), and one count of conspiracy to commit armed bank
robbery, in violation of 18 U.S.C. § 371. On June 1, 2007, Henry was convicted of
conspiracy to make false statements and making false statements to a firearms dealer, and
possession of a firearm. He was acquitted of the bank robbery conspiracy charge. As a
result, Henry was sentenced to 96 months of imprisonment by the District Court on
November 25, 2008 and was also ordered to pay restitution in the amount of $28,665.54
and a special assessment of $200.

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       A district court’s sentencing procedure is reviewed for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51-52 (2007). On abuse of discretion review, the Court of

Appeals gives due deference to a district court’s sentencing decision. Id. at 52. District

courts have discretion when sentencing and appellate review is limited to determining

whether the sentence imposed is reasonable.

                               III.    LEGAL STANDARD

       District courts must follow a three-step process in determining an appropriate

sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Courts must: (1)

correctly calculate a defendant’s sentence under the U.S. Sentencing Guidelines; (2)

allow the parties to argue their positions relative to what they believe is an appropriate

sentence; and (3) consider those arguments in light of the § 3553(a) factors. Id. The

sentencing courts are statutorily required to state their reasons for imposing a sentence,

although a comprehensive, detailed opinion is not required. Id. The sentencing court

must provide an explanation that is sufficient to satisfy the appellate court that the district

court considered the parties’ argument and had a reasoned basis for exercising its own

decision-making authority. Id.

       The Third Circuit’s responsibility on appellate review of a criminal sentence “is

limited yet important: we are to ensure that a substantively reasonable sentence has been

imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d

Cir. 2008). However, “[i]t is not the role of the appellate court to substitute its judgment

for that of the sentencing court as to the appropriateness of a particular sentence,” except

                                               4
to the extent specifically directed by statute. Williams v. United States, 503 U.S. 193,

205 (1992) (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)).

       An appellate court’s reasonableness review of a sentence has both procedural and

substantive components. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). The

procedural component requires the appellate court to ensure that the district court

committed no significant procedural error, including: (1) failing to calculate (or

improperly calculating) the U.S. Sentencing Guidelines range; (2) treating the Guidelines

as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; and (4) selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence and to include an explanation for any deviation from the guidelines range. Id.

If the district court's sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided. Id. at 568.

       The substantive component requires the appellate court to take into account the

totality of the circumstances. United States v. Lychock, 578 F.3d 214, 218 (3d Cir.

2009). Although the appellate court considers the extent of any variance from the

advisory Guidelines range, it must also give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance. Id. The

substantive reasonableness of each sentence must be evaluated on its own terms, based on

the reasons that the district court provided, in light of the particular facts and

circumstances of that case. Tomko, 562 F.3d at 573. In examining the totality of the

                                               5
circumstances, we determine whether a reasonable court would have applied the same

sentence as the District Court.

       The reasonableness standard has been elucidated in both United States v. Booker,

543 U.S. 220, 261 (2005) and United States v. Cooper, 437 F.3d 324, 329-32 (3d Cir.

2006). We have held that this standard also applies to sentences imposed for violations

of supervised release. United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007).

                                    IV.    ANALYSIS

       Henry argues that his sentence was procedurally and substantively infirm because

the District Court failed to consider all of the 18 U.S.C. § 3553(a) factors and

inadequately evaluated the one factor that it did consider. Henry also argues that the

District Court improperly failed to issue a written statement of reasons for the above-

Guidelines sentence imposed.

Procedural Error

       We are guided by the requirement that sentencing courts must give meaningful

consideration to all of the factors in 18 U.S.C. § 3553(a).3 See United States v. Olhovsky,


3
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed - - (A)
to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant: and (D) to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for - - (A) the applicable
category of offense committed by the applicable category of defendant as set forth in the
guidelines . . . ; (5) any pertinent policy statement . . . issued by the Sentencing

                                             6
562 F.3d 530, 546 (3d Cir. 2009) (citing United States v. Cooper, 437 F.3d 324, 329 (3d

Cir. 2006)). A district court’s “failure to consider the § 3553(a) factors” can create a

procedurally unreasonable sentence. United States v. Levinson, 543 F.3d 190, 195 (3d

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

       Henry does not claim that his sentencing Guidelines determination was the result

of a miscalculation or that it was based on clearly erroneous facts. He does argue,

however, that the District Court did not consider all of the §3553(a) factors and did not

adequately evaluate the one factor it considered. We disagree. It is clear from the record

that the District Court considered the 3553(a) factors. In the transcript from the violation

hearing, the District Court stated:

              Now the Court understands and appreciates the guidelines
              range is 12 – 18 months and I understand and appreciate that
              the Guidelines range is discretionary and not mandatory. . .

              [T]he Court will impose a sentence which I think takes into
              consideration the seriousness of the events and it takes into
              consideration the importance of punishment for separate
              offenses and that would be the violation of my probation. It
              takes into consideration the need to punish. It takes into
              consideration the need to impress upon Mr. Henry the
              importance of respect for the law.

(Supp. App. 39).



Commission . . . [that] is in effect on the date the defendant is sentenced; (6) the need to
avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct; and (7) the need to provide restitution to any
victims of the offense.


                                              7
      These statements clearly indicate that the District Court not only took the §3553(a)

factors into consideration at sentencing, but also recognized the advisory nature of those

factors. Although the District Court did not separately list each of the §3553(a) factors,

we find that the record reflects consideration of them. We have held that sentencing

courts need not discuss each of the § 3553(a) factors “if the record makes clear the court

took the factors into account in sentencing.” United States v. Cooper, 437 F.3d 324, 329

(3d Cir. 2006). Further, the District Court held a detailed hearing and provided Henry

an opportunity to be heard by the Court.

      Henry next contends that the District Court failed to state a reason for the sentence

imposed. The District Court did not issue a separate opinion. Nor did it provide

information on the reason for its variance in its judgment. However, the District Court

does provide, in the record, its reasons for imposing the 24-month sentence, stating that

Henry had been placed on probation four years ago, but committed various offenses

during his probation. We have held that the district court is only required to state on the

record its general reasons under §3553(a) for imposing a more stringent sentence. See

United States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991). The District Court

pointed out that the crimes for which Henry was convicted were “extremely serious

actions . . .” (Supp. App. 38), and that it would impose a sentence it thought would, inter

alia, take the seriousness of Henry’s crimes into consideration. The District Court also

stated that it would not impose a concurrent sentence instead of a consecutive sentence




                                            8
because such a sentence would not take into consideration or recognize that Henry’s

actions were in violation of the Court’s probation.

          We find that the District Court did not commit procedural error. The §3553(a)

factors were considered in sentencing and provided an explanation for the sentence the

Court imposed upon Henry. As such, the sentence was procedurally reasonable.

Substantive Reasonableness

          We have held that courts must state adequate reasons for a sentence on the record,

so that we can engage in meaningful appellate review. United States v. Goff, 501 F.3d

250, 256 (3d Cir. 2007). In Tomko, we stated that “the substantive reasonableness of

each sentence must be evaluated on its own terms, based on the reasons that the district

court provided, in light of the particular facts and circumstances of that case.” 562 F.3d

at 573.

          The substantive component requires the appellate court to take into account the

totality of the circumstances. Id. In looking at the totality of the circumstances, we

determine whether a reasonable court would have applied the same sentence as the

district court in this case. We have determined from the District Court’s statements in

Henry’s violation hearing that it took all of the facts of Henry’s case into consideration,

including the fact that Henry committed serious crimes while on probation. The District

Court stated that Henry’s crimes were committed “clearly in the beginning of [his]

probationary period and clearly during the period of the probation.” (Supp. App. 30.) It

is apparent from the record that the District Court considered the particular facts and

                                               9
circumstances of Henry’s case and, as mentioned, provided its reasons for the sentence

imposed.

       We find that the District Court’s sentence was substantively reasonable. The

District Court’s decision to upwardly depart from the sentencing Guidelines was based on

the totality of the circumstances analysis and was sound. The Government recognizes

that the District Court failed to state the reasons for the above-Guidelines sentence in a

written order, but we agree with the Government that because the District Court stated

those reasons in open court where its reasons are available on the record, Henry suffered

no prejudice.

                                     V.   CONCLUSION

       For the reasons provided, the above Guidelines range sentence that the District

Court meted out was not procedurally or substantively unreasonable. Therefore, we will

affirm the District Court’s order.




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