United States v. Galvin Henderson , 669 F. App'x 817 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1495
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Galvin Henderson, also known as Cheeseburger, also known as Cheese
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 19, 2016
Filed: October 25, 2016
[Unpublished]
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
Galvin Henderson appeals from the sentence of twelve months' imprisonment
that the district court1 imposed after finding him guilty of numerous violations of his
supervised release conditions. Henderson maintains that the district court gave
inadequate consideration to the factors set out in 18 U.S.C. § 3553(a) and that it
abused its discretion in arriving at the ultimate sentence.
Because Henderson did not object at his revocation hearing that the district
court had paid insufficient attention to 28 U.S.C. § 3553(a) in sentencing him, we
review his first contention for plain error. United States v. Perkins, 526 F.3d 1107,
1111 (8th Cir. 2008). In fixing its sentence, the district court specifically noted that
it had considered "the factors listed in 18 U.S.C. 3553(a)" as the law requires. We
have observed in these kinds of cases that we presume that district judges know the
law and understand their duty to consider all of the § 3553(a) factors, United States
v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009), and here we do not even have to
resort to the presumption because the district court said directly that it had complied
with its legal obligations. The sentence, moreover, was within the applicable
guidelines range of seven to thirteen months' imprisonment, and in such
circumstances little explanation of the reasons for the sentence is required because
it is likely that the district court rested its decision on the Sentencing Commission's
own reasoning that the guidelines sentence was proper. Rita v. United States, 551
U.S. 338, 356–57 (2007). There is no error here, much less plain error.
Henderson's assertion that the district court's sentence was unreasonable
because it abused its discretion in fixing it is equally unavailing. It is true that the
district court recommended that Henderson participate in nonresidential substance
abuse and mental health treatment during his incarceration, and, as Henderson notes,
the Supreme Court has held that a sentencing court may not impose or lengthen a
sentence to promote a defendant's rehabilitation. Tapia v. United States, 564 U.S.
1
The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
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319, 321 (2011). But nothing in the present record supports an inference that the
district court did that here: It simply recommended treatment while Henderson was
serving the term of imprisonment it imposed. The Tapia court explicitly permitted a
sentencing court to "urge the BOP to place an offender in a prison treatment
program," which is all that happened in the present case. There was no abuse of
discretion.
Affirmed.
KELLY, Circuit Judge, concurring.
“A district court need not mechanically list every § 3553(a) consideration when
sentencing a defendant upon revocation of supervised release.” United States v.
White Face, 383 F.3d 733, 740 (8th Cir. 2004) (citation omitted). But, “evidence that
the court has considered the relevant matters and that some reason be stated for its
decision” is required. Id.; see also Gall v. United States, 552 U.S. 38, 51 (2007)
(procedural error includes “failing to consider the § 3553(a) factors” and “failing to
adequately explain the chosen sentence”). In this case, the district court provided the
following explanation for its sentencing decision: “After consideration of the factors
listed in 18 U.S.C. 3553(a), it’s the order of the Court that Mr. Henderson shall be
committed to the custody of the Bureau of Prisons for 12 months with no supervised
release to follow.” Of course, “[t]he appropriateness of brevity or length, conciseness
or detail, when to write, what to say, depends upon circumstances.” Rita v. United
States, 551 U.S. 338, 356 (2007). Here, Henderson admitted the violations, neither
party presented evidence, and the hearing lasted approximately ten minutes. Yet,
while the parties agreed on the applicable advisory sentencing guideline range, they
requested different outcomes: Henderson asked for a modification of his term of
supervised release to include a stay at a halfway house, and the government asked for
a within-guideline-range sentence with no supervision to follow.
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“We presume that ‘district judges know the law and understand their obligation
to consider all of the § 3553(a) factors,’” United States v. Battiest, 553 F.3d 1132,
1136 (8th Cir. 2009) (quoting United States v. Gray, 533 F.3d 942, 943 (8th Cir.
2008)), and we do so with good reason. However, there must be sufficient evidence
of that consideration on the record for appellate review. See, e.g., Rita, 551 U.S. at
344–46 (court actively questioned defendant about the reasons for his request for
downward departure before imposing sentence); United States v. Johnson, 827 F.3d
740, 745 (8th Cir. 2016) (court reviewed past sentences and commented on their
effectiveness prior to sentencing); United States v. Thunder, 553 F.3d 605, 608 (8th
Cir. 2009) (sufficient discussion when court mentioned general § 3553(a) requirement
and recited some of defendant’s history and circumstances of his offense); United
States v. Perkins, 526 F.3d 1107, 1110–11 (8th Cir. 2008) (explanation that “record
speaks for itself” sufficient when district court imposed both defendant’s original
sentence and his revocation sentence). Because I believe the explanation provided
in this case was insufficient, I would find that the district court made a procedural
error in imposing Henderson’s sentence.
Neither party asked the district court for a more detailed assessment of the
statutory factors or a more thorough explanation for the sentence imposed, so we
review the district court’s sentence for plain error. Applying plain error review,
Henderson has failed to demonstrate that this error affected his substantial rights. See
United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005). Because Henderson has
made no such showing, I concur in the court’s judgment.
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