NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0045n.06
No. 10-5239
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jan 13, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
RODNEY HENRY, )
)
Defendant-Appellant. )
)
BEFORE: BOGGS, ROGERS, SUTTON, Circuit Judges.
ROGERS, Circuit Judge. Defendant Rodney Henry pled guilty to (1) being a convicted
felon in possession of a firearm; (2) attempted robbery; and (3) use of a firearm in relation to a
crime of violence. At sentencing, the district court applied a kidnaping cross-reference to the
felon-in-possession charge. This resulted in a guidelines range of 151-188 months for Counts
One and Two. Henry argues that the cross-reference was unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Because Henry did not receive a sentence above the statutory
maximum, his rights under Apprendi were not violated.
On September 20, 2008, the victim, Ruby Robertson, arrived for work at ACE America
Cash Express (“Cash Express”) in Memphis, Tennessee. Robertson was the first employee to
arrive, so she unlocked the front door of the business. Unbeknownst to Robertson, Henry and his
accomplice had already entered Cash Express from an adjacent, unoccupied building through a
No. 10-5239
United States v. Henry
hole in the wall. As Robertson entered, Henry put a gun to her head and threatened to kill her if
she did not open the safe. Robertson pushed the panic alarm, which notified the Memphis Police
Department and disabled the combination to Cash Express’s safe. Apparently unaware that the
alarm had been triggered, Henry escorted Robertson to the safe and ordered her to enter the
combination. Robertson complied, but she told Henry that the safe operated on a time delay that
lasted twelve minutes. Henry and his accomplice decided to wait for the safe to open. While they
were waiting, the Memphis police officers arrived at the scene. In response, Henry ordered
Robertson to exit Cash Express through the hole in the wall. As Robertson began climbing
through the hole, police officers entered the unoccupied building and took Henry into custody.
The officers recovered a gun and a sledgehammer on the floor beneath the hole in the
wall. Henry gave a full confession, in which he admitted: “I asked the lady to come through the
hole, she came through the hole and by that time the police had came and I gave up.” PSR ¶ 11.
Pursuant to an oral plea agreement, Henry pled guilty to the following offenses: (1) being
a convicted felon in possession of a firearm under 18 U.S.C. § 922(g); (2) attempted robbery of a
business affecting interstate commerce under 18 U.S.C. § 1951; and (3) the use of a firearm
during a crime of violence under 18 U.S.C. § 924(c). Under the agreement, Henry was to receive
credit for acceptance of responsibility and a sentence within the applicable guidelines range.
PSR ¶ 5.
Henry’s PSR grouped Count One (felon in possession) and Count Two (robbery of a
business) pursuant to U.S.S.G. § 3D1.2(c). PSR ¶ 18. For Count One, the court calculated a
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No. 10-5239
United States v. Henry
base offense level of 29, based on a cross-reference to kidnaping under U.S.S.G. § 2X1.1 and §
2A4.1. The court applied this base offense level to both counts under U.S.S.G. § 3D1.3(a).
Because Henry had a criminal history of VI, the applicable guidelines range was 151-188
months. As to Count Three (§ 924(c)), the PSR noted that the statute required a minimum
sentence of 84 months, to run consecutive to any other term of imprisonment.
The district court held two sentencing hearings.1 Henry objected to the kidnaping cross-
reference, arguing that he had never substantially interfered with Robertson’s liberty and that the
purported kidnaping was indistinguishable from the robbery. R. 58, Sentencing Tr., 12-16, 30-
31. He did not raise any constitutional challenges to the cross-reference. The district court
denied Henry’s objections and applied the kidnaping cross-reference because the victim “was
forcibly required to . . . move[ ] from one building to another.” Id. at 35. After reviewing the 18
U.S.C. § 3553(a) factors, the district court sentenced Henry to 120 months’ imprisonment on
Count One (felon in possession) and a concurrent sentence of 151 months’ imprisonment on
Count Two (robbery of a business). Id. at 62-67; R. 60, Re-Sentencing Hearing, at 8-9. Henry
received an 84 month sentence on Count Three (§924(c)), to run consecutive to Count One and
Two. R. 58 at 65, R. 60 at 8-9. Henry filed this timely appeal.
1
The court held an initial sentencing hearing on February 25, 2010 and sentenced Henry
using a total offense level of 36. However, after the hearing, the parties submitted a joint motion
to correct an error in the calculation of the base offense level. The parties noted that the PSR had
wrongly included a particular four-level enhancement and failed to give Henry a three-point
reduction for acceptance of responsibility. On March 16, 2010, the court re-sentenced Henry
using a total offense level of 29.
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United States v. Henry
The kidnaping cross-reference, as applied, did not violate Henry’s right to a jury
determination under Apprendi, 530 U.S. 466. As this court has previously held, “Apprendi is not
triggered so long as the judicial findings of fact do not result in the defendant receiving a
sentence that exceeds the statutory maximum.” United States v. Flores, 477 F.3d 431, 438 (6th
Cir. 2007) (emphasis added). As Henry admits, he received the statutory maximum of 120
months on the § 922(g) offense and a 151-month sentence for robbery. Appellant Br. 18-19. The
statutory maximum sentence for the robbery conviction was 240 months. 18 U.S.C. § 1951(a).
Simply put, Henry did not receive a sentence beyond the statutory maximum; therefore, Apprendi
is inapplicable. The fact that his combined sentences on all counts resulted in his imprisonment
for more than 120 months is irrelevant – Apprendi is concerned with the sentence for individual
counts and not the cumulative impact of the sentences. 530 U.S. at 474.
Nevertheless, Henry contends that the district court violated Apprendi by including the
kidnaping cross-reference when it calculated the Guidelines base offense level for Counts One
and Two. Henry argues that the district court should have capped the base offense level for
Count One prior to grouping, to correspond to a Guidelines range in line with the statutory
maximum. This would have lowered the group base level for Counts One and Two.
However, Apprendi is not concerned with the mechanics of a Guidelines calculation
unless the sentence received exceeds the maximum sentence authorized by statute. See United
States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003). Here, the court determined that the offenses
embodied in Counts One and Two “involv[ed] substantially the same harm,” and therefore
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No. 10-5239
United States v. Henry
grouped them for sentencing purposes pursuant to U.S.S.G. § 3D1.2. Next the district court
determined which offense in the group carried the “the highest offense level of the counts in the
Group” under U.S.S.G. § 3D1.3. In making this determination, the district court applied the
kidnaping cross-reference to Count One, which increased the offense level to 29. Because the
felon-in-possession count carried the highest offense level, this became the Group’s base offense
level under U.S.S.G. § 3D1.3. This is proper for the purposes of grouping, even though the
suggested range exceeded the statutory maximum for Count One, but not Count Two. Under
Apprendi, courts do not determine whether a sentence exceeds the “statutory maximum” until
after the sentencing guideline range has been determined and a sentence has been imposed. See
United States v. Feola, 275 F.3d 216, 219 (2d Cir. 2001). Although the Guidelines suggested a
sentence of 151-188 months based on the above calculation, Henry admits he only received the
statutory maximum 120 months for the §922(g) violation. Because Henry ultimately received
sentences at or below the applicable statutory maximum, Apprendi does not apply.
In essence, Henry is complaining of his sentence for the robbery conviction. Henry
admits that the district court arrived at the sentence for the robbery conviction by correctly
calculating the applicable range under the Guidelines, which included the cross-reference and
grouping of offenses. The resultant sentence of 151 months was under the statutory maximum
for robbery and did not violate Appendi.
Henry’s facial challenge to the constitutionality of the cross-referencing procedure within
the sentencing guidelines similarly lacks merit. This court has consistently held that, unless a
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United States v. Henry
sentence exceeds the statutory maximum, “no Sixth Amendment violation occurs when a district
court applies a cross-reference to a crime not charged in the indictment based upon the
preponderance-of-the-evidence standard,” United States v. Lobbins, 297 F. App’x 473, 474 (6th
Cir. 2008) (citing United States v. Brika, 487 F.3d 450 (6th Cir. 2007)). Here, the court
calculated the advisory guidelines ranges based on the cross-reference, and then applied the
resultant base offense level to the robbery conviction. Although Henry argues that the system of
cross-referencing is an impermissible re-characterization of elements as factors, such a re-
characterization only rises to a constitutional violation if the sentence imposed exceeds the
statutory maximum. As discussed above, Henry did not receive a sentence above the statutory
maximum for the §922(c) violation. Further, the sentence for Count II was under the 240-month
statutory maximum for the robbery conviction; therefore, there was no Sixth Amendment
violation.
Henry’s cursory attempt to distinguish Brika and Lobbins is unavailing. First, Henry
argues that both decisions pre-dated United States v. O’Brien, 130 S. Ct. 2169 (2010), a Supreme
Court decision that Henry contends has “the power to implicitly overrule” both Brika and
Lobbins. Appellant Br. 20, Reply 7. While his statement regarding the primacy of the Supreme
Court is true, Henry makes no attempt to explain how O’Brien affected this court’s precedent.
O’Brien involved a sentence issued under 18 U.S.C. §924(c) where the Court considered whether
Congress intended the use of a machine gun to be an element of the crime or a sentencing factor.
O’Brien, 130 S.Ct. at 2174-80. The case did not address the cross-reference issue and did not
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United States v. Henry
involve any of the pertinent issues addressed in Brika or Lobbins. Second, Henry argues that
Brika and Lobbins involved only one count instead of multiple counts. Henry fails to explain
why the number of counts charged changes the constitutionality of cross-referencing. Without an
intervening Supreme Court case on point, there is no reason to overturn this court’s precedent in
Brika.
The sentence imposed by the district court is affirmed.
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