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

                                                                 FILED
                                                              December 23, 2008
                               No. 07-30616
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

FLOYD HENDERSON

                                         Defendant-Appellant


                Appeal from the United States District Court
                   for the Western District of Louisiana
                        USDC No. 2:05-CR-20134-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
     Floyd Henderson appeals the sentence imposed following his guilty plea
to conspiracy to distribute crack cocaine. He was sentenced to 121 months of
imprisonment and five years of supervised release. Henderson argues, pursuant
to Kimbrough v. United States, that his within-guidelines sentence was
unreasonable because the Sentencing Guidelines created an unjust disparity
between crack and powder cocaine. See 128 S. Ct. 558, 575 (2007) (holding that



     *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-30616

it is not an abuse of discretion for a district judge to make a downward departure
from the Guidelines based on the crack/powder disparity). Because Henderson
did not challenge the substantive reasonableness of his sentence in the district
court on this basis, this issue is reviewed for plain error. United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005).
      Under plain error review, Henderson must show that the district court
would have given him a lighter sentence if he had been sentenced with the
benefit of Kimbrough. Cf. id. at 521 (holding that under plain error review the
burden is on the defendant to show that an alleged error necessarily influenced
the outcome of the district court proceedings). The sentencing record does not
support such a conclusion. Rather, the record indicates that Henderson’s 121-
month sentence was based on the 120-month statutory mandatory minimum
sentence for his crime. See 21 U.S.C. § 841(b)(1)(A)(iii). The district court did
not express any indication that it felt restrained by the yet-to-be-amended crack
cocaine guideline, U.S.S.G. § 2D1.1(c), in sentencing Henderson. Cf. United
States v. Burns, 526 F. 3d 852, 861-62 (5th Cir. 2008) (vacating a pre-Kimbrough
sentence where the crack/powder disparity was raised at sentencing, but the
judge felt he lacked the discretion to make a downward departure from the
Guidelines based on that disparity). Consequently, Henderson has not shown
that his substantial rights were affected by the pre-Kimbrough sentencing, and
he therefore has not shown reversible plain error. See Mares, 402 F.3d at 521.
      AFFIRMED.




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