US v. Darius Henning

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00029-IMK-JSK-1. Copies to all parties and the district court. [999778093]. [15-4571]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4571

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARIUS HENNING,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge. (1:15-cr-00029-IMK-JSK-1)

Submitted:

March 17, 2016

Decided:

March 21, 2016

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darius

Henning

appeals

his

convictions

and

63-month

sentence imposed following his guilty plea to one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2012), and one count of possession of a
stolen

firearm,

in

924(a)(2) (2012).

violation

of

18

U.S.C.

§§ 922(j)(1),

Henning’s attorney filed a brief, pursuant to

Anders v. California, 386 U.S. 738 (1967), conceding there are
no meritorious grounds for appeal, but suggesting as a possible
issue for review whether the district court committed reversible
error when it declined to impose a downward variant sentence to
account for time Henning will serve in state custody for parole
revocation for conduct related to his federal crimes.
has

filed

a

pro

se

supplemental

ineffective assistance of counsel.
to file a responsive brief.

brief

asserting

he

Henning
received

The Government has declined

Finding no error, we affirm.

We review Henning’s sentence for reasonableness, applying
an abuse-of-discretion standard.
U.S. 38, 46 (2007).
both

the

sentence.
court

This review requires our consideration of

procedural
Id. at 51.

properly

Gall v. United States, 552

and

substantive

reasonableness

of

the

We first assess whether the district

calculated

the

advisory

Sentencing

Guidelines

range, considered the factors set forth at 18 U.S.C. § 3553(a)
(2012), analyzed any arguments presented by the parties, and
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sufficiently explained the selected sentence.

Id. at 49–51; see

United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir. 2010).
we

find

no

substantive

procedural

error,

reasonableness,

circumstances[.]”

properly

review

“examin[ing]

the

the

sentence

totality

for

of

the

United States v. Mendoza–Mendoza, 597 F.3d

212, 216 (4th Cir. 2010).
a

we

If

calculated

“Any sentence that is within or below
Guidelines

range

is

presumptively

[substantively] reasonable” and “[s]uch a presumption can only
be rebutted by showing that the sentence is unreasonable when
measured

against

the

18

U.S.C.

§ 3553(a)

factors.”

United

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
___ U.S. ___, 135 S. Ct. 421 (2014).
We conclude that Henning’s sentence is reasonable.

The

district court correctly calculated Henning’s Guidelines range,
listened to counsel’s argument, afforded Henning an opportunity
to allocute, and adequately explained its reasons for imposing
the 63-month, within-Guidelines sentence.
error

in

the

district

court’s

failure

We find no reversible
to

impose

a

downward

variant sentence.

First, counsel never requested a downward

variant sentence.

Moreover, ordering Henning’s federal sentence

to run consecutive to any state sentences he was then serving is
consistent

with

the

Guidelines,

and

the

district

court

thoroughly justified its sentence under the § 3553(a) factors.
See

USSG

§ 5G1.3

(2014).

Accordingly,
3

Henning’s

Guidelines

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sentence is presumptively substantively reasonable, see United
States

v.

Susi,

674

F.3d

278,

289

(4th

Cir.

2012),

and

we

discern no basis in the record to overcome this presumption.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. *
therefore

affirm

the

district

court’s

judgment.

This

We

court

requires counsel to inform Henning, in writing, of the right to
petition

the

Supreme

Court

of

review.

If

Henning

requests

the
that

United
a

States

petition

be

for

further

filed,

but

counsel believes that such a petition would be frivolous, then
counsel may move in this court to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
on Henning.

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

*

To the extent Henning argues that trial counsel was
ineffective, we conclude that he has not made the requisite
showing to assert an ineffective assistance claim on direct
appeal and that this claim should be raised, if at all, in a
motion under 28 U.S.C. § 2255 (2012).
See United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008) (“Ineffective
assistance claims are generally not cognizable on direct appeal
. . . unless it conclusively appears from the record that
defense counsel did not provide effective representation.”
(internal quotation marks omitted)).

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