US v. Henderson

Filing 920061102


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5171 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TYRONE HENDERSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CR-04-320-3) Submitted: October 31, 2006 Decided: November 2, 2006 Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. I. Scott Pickus, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Brian Lee Whisler, Olivia N. Hawkins, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Tyrone Henderson was convicted by a jury of conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base (crack), in violation of 21 U.S.C. 846 (2000), and distribution of fifty grams or more of cocaine base, in violation of 21 U.S.C.A. 841(a), (b)(1)(A) (West 1999 & Supp. 2006). Henderson was sentenced to 360 months imprisonment. He appeals his sentence, arguing that the district court erred under United States v. Booker, 543 U.S. 220 (2005), in determining, by a preponderance of the evidence, that he was responsible for more than fifty grams of crack for sentencing purposes.* We affirm. Henderson incorrectly maintains that, following Booker, facts that increase the offense level must be proved beyond a reasonable doubt. The remedial portion of Booker specifically Booker, 543 U.S. at 246. After Booker, rejected this approach. the sentencing court continues to make factual findings concerning sentencing factors by a preponderance of the evidence. See United States v. Morris, 429 F.3d 65, 72 (4th Cir.) (remedial portion of Booker ensures to be that made determination by sentencing of sentencing by factors will of continue judge preponderance Henderson states in his brief that application of the remedial portion of Booker constituted a violation of the Ex Post Facto Clause. He provides no argument or support for this claim. To the extent the issue is properly raised at all, it is without merit. See United States v. Williams, 444 F.3d 250, 253-54 (4th Cir. 2006), petition for cert. filed, July 10, 2006 (No. 06-5152). - 2 - * evidence) (internal quotation and citation omitted), cert. denied, ___ S. Ct. ___, 2006 WL 1558153 (U.S. Oct. 2, 2006) (No. 05-11378). In imposing a sentence post-Booker, courts still must calculate the applicable guideline range after making the appropriate findings of fact and consider the range in conjunction with other relevant factors under the guidelines and 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2006). United States v. Moreland, 437 F.3d 424, 432 (4th The sentence must be United Cir.), cert. denied, 126 S. Ct. 2054 (2006). within the statutorily prescribed range and reasonable. States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Although Henderson acknowledges that the district court treated the guidelines as advisory, he argues that the court effectively treated them as mandatory because it did not make a detailed analysis of the factors set out in 3553(a). argument is without merit. This The court need not "robotically tick through 3553(a)'s every subsection" or "explicitly discuss every 3553(a) factor on the record." F.3d 339, 345 (4th Cir. 2006). We therefore affirm the sentence imposed by the district court. We dispense with oral argument because the facts and legal United States v. Johnson, 445 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 3 -

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