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

                                                                    FILED
                                                                   July 17, 2008
                                 No. 07-30416
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

MARCUS WAYNE HENDERSON

                                             Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                         USDC No. 2:05-CR-20223-1


Before JONES, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Marcus Wayne Henderson appeals the 120-month sentence he received
following his guilty-plea conviction for using a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c), asserting that the sentence is substantively
unreasonable.    This court reviews the non-guidelines sentence under the
deferential abuse-of-discretion standard, “tak[ing] into account the totality of the
circumstances,” and recognizing that “[t]he sentencing judge is in a superior



      *
      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should not be published and is not precedent except under the limited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. 07-30416

position to find facts and judge their impact under [18 U.S.C.] § 3553(a) in the
individual case.” Gall v. United States, 128 S. Ct. 586, 596-598 (2007).
      Henderson contends that the guidelines sentence was a fair sentence in his
case and that the district court committed a clear error in judgment in failing to
give significant weight to the Guidelines and to adhere to the guidelines “policies
severely restricting departures outside of the Guidelines ranges.” This argument
is without merit. Although the district court must begin by calculating the
guidelines range, the range is a benchmark only, and the district court is free to
conclude, as it did in this case, that the Guidelines range was insufficient based
on an individualized assessment of the § 3553(a) factors on the facts of the
instant case. See Gall, 128 S. Ct. at 596; United States v. Williams, 517 F.3d
801, 809 (5th Cir. 2008).
      Henderson contends, however, that the district court did not give
compelling reasons justifying the variance, especially given his history of alcohol
and drug abuse, which he asserts was the cause for the offense, and the fact
that, prior to sentencing, he voluntarily completed a drug-treatment program,
reducing the risk of his future recidivism. However, the record shows that the
district court weighed these arguments against its assessment of Henderson’s
history and characteristics, specifically his propensity for recidivism as
demonstrated by his extensive criminal history, the fact that the instant offense
occurred two years into a five-year term of probation, and his long history of
drug abuse. See § 3553(a)(1). The court relied on the fact that, because the
guidelines sentence for a § 924(c) conviction is the statutory minimum,
Henderson’s criminal history was not adequately reflected. See § 3553(a)(1) and
(4). It also relied on the specific characteristics of the offense, including the fact
that Henderson brandished the firearm at the victim and five other occupants
of the house from which the victim was taken, the fact that the gun was stolen,
and the fact that the events took place in connection with Henderson’s selling
cigarettes dipped in embalming fluid, which it considered to be a very dangerous

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                                 No. 07-30416

practice. See § 3553(a)(1). The district court also relied on the need for the
sentence to promote respect for the law and provide adequate deterrence and
public protection, citing the fact that the prior lenient sentences Henderson had
received throughout his criminal past had done nothing to deter his criminal
conduct. See § 3553(a)(2)(A). Additionally, the court relied on the need for just
punishment, noting that the § 924(c) guideline does not permit inclusion of
Henderson’s other criminal conduct related to the instant offense -- carjacking
and being a felon in possession of a firearm -- from being considered as relevant
conduct. See § 3553(a)(2)(A).
      Henderson makes no argument that the district court’s consideration of
the § 3553(a) factors was improper. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).   He has thus not shown that the sentence imposed was
unreasonable. See Gall, 128 S. Ct. at 597. He has further abandoned by failing
to brief any argument challenging the extent of the variance. See Yohey,
985 F.2d at 224-25. The district court’s judgment is therefore AFFIRMED.




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