UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN L. HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:07-cr-00017-WDK)
Submitted: April 21, 2008 Decided: July 7, 2008
Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Larry M. Dash,
Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. D. Monique Hutton, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn L. Henderson pled guilty to possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000),
and the district court sentenced him to sixty months in prison and
three years of supervised release. On appeal, Henderson’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting, in his opinion, there are no meritorious grounds
for appeal but raising the issue of whether Henderson’s sentence is
procedurally and substantively unreasonable because the district
court failed to give an adequate statement of reasons; failed to
consider all of the relevant factors in 18 U.S.C. § 3553(a) (2000);
and imposed a sentence that was greater than necessary to comply
with the purposes of sentencing. Henderson has filed a pro se
supplemental brief raising the same issue. We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
In assessing the reasonableness of the sentence, we focus on
whether the district court abused its discretion in imposing the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). We first examine the sentence for significant procedural
errors, and then we look at the substance of the sentence. Id.;
see also Gall v. United States, 128 S. Ct. 586, 597 (2007). On
appeal, we presume that a sentence within a properly calculated
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sentencing guideline range is reasonable. United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States,
127 S. Ct. 2456 (2007) (upholding our presumption).
In sentencing, the district court should first calculate
the guideline range and give the defendant and the government an
opportunity to argue for whatever sentence they deem appropriate.
The district court should then consider the § 3553(a) factors to
determine whether they support the sentence requested by either
party. Pauley, 511 F.3d at 473. While a district court must
consider the statutory factors and explain its sentence, it need
not explicitly reference § 3553 or discuss every factor on the
record, particularly when the court imposes a sentence within a
properly calculated guideline range. United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). The court’s explanation should
provide some indication that it considered the § 3553(a) factors as
to the defendant and the potentially meritorious arguments raised
at sentencing. United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).
“[W]hen a judge decides simply to apply the Guidelines to
a particular case, doing so will not necessarily require lengthy
explanation.” Rita, 127 S. Ct. at 2468. “Circumstances may well
make clear that the judge rests his decision upon the Commission’s
own reasoning that the Guidelines sentence is a proper sentence (in
terms of § 3553(a) and other congressional mandates) in the typical
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case, and that the judge has found that the case before him is
typical.” Id. Further, “where judge and Commission both determine
that” a guideline sentence is appropriate, “that sentence likely
reflects the § 3553(a) factors.” Id. at 2467.
We have reviewed the record and find Henderson’s sentence
is both procedurally and substantively reasonable. The district
court properly determined Henderson’s guideline range was fifty-one
to sixty-three months based on his total offense level of seventeen
and criminal history category VI. Next, the court gave the parties
an opportunity to argue for the sentence they deemed appropriate
and then considered the statutory factors in § 3553(a) to determine
whether they supported the sentence requested by either party.
The Government argued a sentence at the higher end of
Henderson’s guideline range was appropriate based on the statutory
factor that spoke most loudly in his case, his criminal history,
and the nature of his offenses. Henderson argued that a sentence
at the low end or below his guideline range was appropriate because
his criminal history had already been taken into account, and a
lower sentence would be sufficient for him to receive treatment for
mental health and substance abuse issues that may have contributed
to his violent criminal behavior. The district court determined
that while Henderson might benefit from mental health treatment, he
had not shown anything extraordinary about his case warranting a
below-guidelines sentence. Moreover, based on his repeated pattern
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of criminal activity, including some violent crimes, the district
court reasonably determined that a sentence at the upper end of his
guideline range was appropriate.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client.
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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