United States v. Brian Henderson , 631 F. App'x 118 ( 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  •                             UNPUBLISHED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    Affirmed in part; dismissed in part by unpublished per curiam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    Unpublished opinions are not binding precedent in this circuit.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     convicted        felon,      in    violation          of       18    U.S.C.
    §§ 922(g)(1),         924(e)    (2006)      (Count        5).        The   district           court
    imposed life sentences on Count 1 and 3, a concurrent 120-month
    sentence     on       Count    5,   and     a       consecutive        mandatory            minimum
    sentence   of      60    months     on    Count      4.     On       appeal,       we       affirmed
    Henderson’s        conviction        and        sentence.              United           States v.
    Henderson, 380 F. App’x 295, 296-97 (4th Cir. 2010) (No. 08-
    5047).
    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      defendant        to      a    term     of
    imprisonment exceeding one year.                    
    649 F.3d 237
    , 241-45 (4th Cir.
    2011) (en banc).              Henderson filed a 28 U.S.C. § 2255 (2012)
    motion, seeking relief pursuant to Simmons.                           The district court
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    granted       Henderson          relief          under          Simmons          by     vacating          his
    conviction       in       Count        5        and       ordering             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);       and       (4)    Henderson’s               sentence         is     substantively
    unreasonable         in     light      of        the       sentences            his     coconspirators
    received.        Henderson         has      filed          a    pro       se   supplemental         brief,
    raising       several       issues         identified                by   counsel,          as    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    sentencing         purposes,               the    government           must       prove    the
    drug    quantity       attributable              to       a     particular            defendant      by    a
    preponderance of the evidence.”                           United States v. Bell, 
    667 F.3d 431
    ,    441    (4th       Cir.    2011).              When       determining            drug      quantity
    3
    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   shall     approximate      the   quantity        of    the     controlled
    substance.”     U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. n.5
    (2013).     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)    (drug    quantity       table).           Even    discounting
    testimony      disputed    by    Henderson         and    relying       on    the     drug
    4
    quantities stipulated to by the Government with respect to the
    execution      of     a    search      warrant        on    July     31,    2006,    the    record
    contains      sufficient           evidence      to        support    the    conclusion        that
    Henderson possessed an amount of powder cocaine and cocaine base
    with a marihuana equivalence of at least 3000 KG.                                   See § 2D1.1
    cmt. n.8.      Accordingly, we conclude that Henderson has not shown
    any error that affected his substantive rights.
    Henderson’s          claim      regarding           his    motion     to     suppress     is
    foreclosed      by        the   law    of   the       case.        “The     law   of    the    case
    doctrine posits that when a court decides upon a rule of law,
    that    decision          should      continue        to    govern    the    same      issues   in
    subsequent stages in the same case.”                              United States v. Lentz,
    
    524 F.3d 501
    ,       528   (4th     Cir.     2008)       (internal      quotation        marks
    omitted).       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).                 We reject this argument.                    The district
    court’s        drug         quantity         determination             merely          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
    jury”).
    We    review         the    substantive        reasonableness           of   Henderson’s
    sentence for plain error.                      
    Olano, 507 U.S. at 731-32
    , 735-36.
    Substantive           reasonableness        is    determined         by     considering          the
    totality of the circumstances, and if the sentence imposed falls
    within      or   below       the    properly-calculated             Guidelines        range,      we
    apply a presumption of reasonableness.                           United States v. Susi,
    
    674 F.3d 278
    , 289 (4th Cir. 2012).                         Henderson has not rebutted
    that presumption, and we conclude that the sentence imposed by
    the district court is substantively reasonable.
    Turning         to    the    final       issue      raised     by       Henderson,        his
    challenge        to    a    jury    instruction,        an    issue    not      raised      on    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.                 If
    Henderson     requests   that   a    petition   be    filed,   but     counsel
    believes that such a petition would be frivolous, then counsel
    may   move     in    this   court     for   leave     to     withdraw     from
    representation.      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
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