US v. Brian Henderson, No. 14-4399 (4th Cir. 2015)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4399 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN DARNELL HENDERSON, a/k/a B, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00023-RLV-DCK-2) Submitted: October 30, 2015 Decided: November 20, 2015 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Brian Darnell Henderson of (1) conspiracy to possess with intent to distribute at least 50 grams of cocaine base and at least 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (2012) (Count 1); (2) possession with intent to distribute at least 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a) (2012) (Count 3); (3) using and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2012) (Count 4); and (4) possession of a firearm by a §§ 922(g)(1), convicted 924(e) felon, (2006) in (Count violation 5). The of 18 U.S.C. district court imposed life sentences on Count 1 and 3, a concurrent 120-month sentence on sentence of Henderson’s Count 60 5, months conviction and on a consecutive Count and 4. On mandatory appeal, sentence. we United minimum affirmed States v. Henderson, 380 F. App’x 295, 296-97 (4th Cir. 2010) (No. 085047). Subsequent to Henderson’s first appeal, we decided United States v. Simmons, holding that a prior conviction qualifies as a felony for sentencing enhancement purposes only if the prior conviction actually exposed that imprisonment exceeding one year. 2011) (en banc). defendant to a term of 649 F.3d 237, 241-45 (4th Cir. Henderson filed a 28 U.S.C. § 2255 (2012) motion, seeking relief pursuant to Simmons. 2 The district court granted Henderson conviction in relief Count under 5 and Simmons ordering by vacating his resentencing. At resentencing the district court imposed concurrent terms of 188 months on Count 1 and 3, to be served consecutive to the mandatory minimum term of 60 months on Count 4. On appeal, Henderson’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issue for appeal, but questioning whether (1) the district court erred in determining the drug weight attributable to Henderson at sentencing; (2) the district court erred in denying Henderson’s motion to suppress; (3) the question of drug weight for sentencing purposes needed to be submitted to a jury under Alleyne v. United States, 133 S. Ct. 2151 (2013); unreasonable received. raising and in (4) light Henderson several Henderson’s of has issues the filed sentence sentences a identified pro by se is his substantively coconspirators supplemental counsel, as brief, well as asserting that the district court’s instruction to the jury on Count 4 constructively amended the indictment. We affirm in part and dismiss in part. “For drug sentencing quantity purposes, attributable the to a preponderance of the evidence.” 431, 441 (4th Cir. 2011). government particular must prove defendant by the a United States v. Bell, 667 F.3d When 3 determining drug quantity attributable to a defendant, “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court substance.” (2013). shall approximate the quantity of the controlled U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. n.5 While a district court may rely on witness testimony to approximate drug quantity, “when the approximation is based only upon uncertain witness estimates, district courts should sentence at the low end of the range to which the witness[] testified.” Bell, 667 F.3d at 441 (internal quotation marks omitted). As Henderson did not object to the drug quantity determination at resentencing, we review his argument on appeal for plain error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). To satisfy the plain error standard, Henderson must show (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 731-32, 735-36 (1993). Under the applicable version of the U.S. Sentencing Guidelines Manual, a base offense level of 34 was appropriate if the combined marihuana equivalency of the drugs attributable to Henderson was “[a]t least 3,000 KG but less than 10,000 KG.” USSG § 2D1.1(c)(3) testimony disputed (drug by quantity Henderson 4 table). and Even relying on discounting the drug quantities stipulated to by the Government with respect to the execution contains of a search sufficient warrant evidence on to July 31, support 2006, the the record conclusion that Henderson possessed an amount of powder cocaine and cocaine base with a marihuana equivalence of at least 3000 KG. cmt. n.8. See § 2D1.1 Accordingly, we conclude that Henderson has not shown any error that affected his substantive rights. Henderson’s foreclosed by claim the regarding law of the his motion case. “The to law suppress of the is case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern subsequent stages in the same case.” 524 F.3d omitted). 501, 528 (4th Cir. 2008) the same issues in United States v. Lentz, (internal quotation marks The doctrine applies to both subsequent proceedings in the trial court and on a later appeal. Id. We addressed and rejected Henderson’s challenge to the district court’s denial of his motion to suppress on his initial appeal, Henderson, 380 F. App’x at 296-97, and we are bound by that ruling. Next, Henderson argues that the district court’s drug quantity determination at sentencing was invalid because it was not submitted to a jury pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013). court’s drug quantity We reject this argument. determination merely The district controlled Henderson’s Sentencing Guidelines range, and did not alter the 5 statutory minimum sentenced he faced. See id. at 2163 (acknowledging that Alleyne’s holding “does not mean that any fact that influences judicial discretion must be found by a reasonableness of Henderson’s jury”). We review the substantive sentence for plain error. Olano, 507 U.S. at 731-32, 735-36. Substantive is reasonableness determined by considering the totality of the circumstances, and if the sentence imposed falls within or below the properly-calculated apply a presumption of reasonableness. 674 F.3d 278, 289 (4th Cir. 2012). Guidelines range, we United States v. Susi, Henderson has not rebutted that presumption, and we conclude that the sentence imposed by the district court is substantively reasonable. Turning challenge to to a the jury final issue instruction, raised an by issue Henderson, not raised on his an initial appeal is waived, Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007), and not subject to review on a second appeal. Cf. Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc., 974 F.2d 502, 505 (4th Cir. 1992). Accordingly, we dismiss Henderson’s appeal with respect to his claim that the district court’s instruction to the jury on Count 4 constructively amended his indictment. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for 6 appeal. We therefore affirm Henderson’s conviction and sentence and dismiss his appeal with respect to his challenge regarding the district court’s jury instruction. This court requires that counsel inform Henderson, in writing, of the right to petition the Supreme Court of the United States for further review. Henderson requests that a petition be filed, but If counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel’s motion must state that a copy thereof was served on Henderson. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 7

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