United States v. Henderson

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

rejected this approach. Booker, 543 U.S. at 246. After Booker,

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 that determination of sentencing factors will

continue to be made by sentencing judge by preponderance of

*
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).

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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

Cir.), cert. denied, 126 S. Ct. 2054 (2006). The sentence must be

within the statutorily prescribed range and reasonable. United

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). This

argument is without merit. The court need not “robotically tick

through § 3553(a)’s every subsection” or “explicitly discuss every

§ 3553(a) factor on the record.” United States v. Johnson, 445

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

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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