Case: 11-10274 Document: 00511920799 Page: 1 Date Filed: 07/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 13, 2012
No. 11-10274
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LESTER HENDERSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-206-7
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Lester Henderson appeals following his guilty plea conviction for
distribution of five grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). Henderson waived his right to appeal his conviction
and sentence except that he reserved the right to appeal a sentence exceeding
the statutory maximum punishment, an arithmetic error at sentencing, and the
voluntariness of his guilty plea or waiver. He was sentenced to 135 months of
imprisonment to run consecutively to two yet-to-be imposed state sentences and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10274 Document: 00511920799 Page: 2 Date Filed: 07/13/2012
No. 11-10274
four years of supervised release. Henderson argues that the district court erred
by ordering his sentence to run consecutively to yet-to-be-determined state
sentences and that his sentence was substantively unreasonable.
Henderson’s argument that a federal court lacks authority to order a
sentence to run consecutively to a yet-to-be-determined state sentence is
foreclosed by our precedent. See United States v. Brown, 920 F.2d 1212, 1216-17
(5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d
468, 472-73 (5th Cir. 2006). The Supreme Court recently confirmed the
correctness of our precedent by holding that a district court has the authority to
impose such consecutive sentences. Setser v. United States, 132 S. Ct. 1463,
1466-73 (2012). Because Henderson’s challenge to the consecutive sentencing
order is foreclosed, we pretermit whether Henderson’s appeal of this issue is
barred by his appeal waiver. See United States v. Story, 439 F.3d 226, 230-31
(5th Cir. 2006); United States v. Despeaux, 384 F. App’x 369, 369 (5th Cir. 2010).
Henderson also contends that the sentence was substantively
unreasonable. This challenge to his sentence does not fall within an exception
to his appeal waiver. A review of the record indicates that Henderson knowingly
and voluntarily waived his right to appeal because he indicated that he had
reviewed and understood the appeal waiver. See United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005). Therefore, the appeal waiver bars consideration
of this issue.
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s motions for
dismissal of the appeal and an extension of time to file a brief and Henderson’s
incorporated motion for holding the case in abeyance are DENIED as
unnecessary.
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