Beruflich Dokumente
Kultur Dokumente
No. 14-4399
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:
Decided:
PER CURIAM:
A jury convicted Brian Darnell Henderson of (1) conspiracy
to
possess
with
intent
to
distribute
at
least
50
grams
of
by
922(g)(1),
convicted
924(e)
felon,
(2006)
in
(Count
violation
5).
The
of
18
U.S.C.
district
court
on
sentence
of
Hendersons
Count
60
5,
months
conviction
and
on
consecutive
Count
and
4.
On
mandatory
appeal,
sentence.
we
United
minimum
affirmed
States v.
Henderson, 380 F. Appx 295, 296-97 (4th Cir. 2010) (No. 085047).
Subsequent to Hendersons 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
term
of
granted
Henderson
conviction
in
relief
Count
under
and
Simmons
ordering
by
vacating
his
resentencing.
At
on
Count
and
3,
to
be
served
consecutive
to
the
are
no
meritorious
issue
for
appeal,
but
questioning
(2013);
unreasonable
received.
raising
and
in
(4)
light
Henderson
several
Hendersons
of
has
issues
the
filed
sentence
sentences
a
identified
pro
by
se
is
his
substantively
coconspirators
supplemental
counsel,
as
brief,
well
as
We affirm in
sentencing
quantity
purposes,
attributable
the
to
441
(4th
Cir.
2011).
government
particular
must
prove
defendant
by
the
a
determining
drug
quantity
court
substance.
(2013).
shall
approximate
the
quantity
of
the
controlled
uncertain
witness
estimates,
district
courts
should
omitted).
As
Henderson
did
not
object
to
the
drug
quantity
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
the
applicable
version
of
the
U.S.
Sentencing
2D1.1(c)(3)
testimony
disputed
(drug
by
quantity
Henderson
4
table).
and
Even
relying
on
discounting
the
drug
of
search
sufficient
warrant
evidence
on
to
July
31,
support
2006,
the
the
record
conclusion
that
See 2D1.1
by
claim
the
regarding
law
of
the
his
motion
case.
The
to
law
suppress
of
the
is
case
decision
should
continue
to
govern
F.3d
omitted).
501,
528
(4th
Cir.
2008)
the
same
issues
in
quotation
marks
Id.
We addressed and
Henderson
argues
that
the
district
courts
drug
drug
quantity
merely
The district
controlled
statutory
minimum
sentenced
he
faced.
See
id.
at
2163
that
influences
judicial
discretion
must
be
found
by
reasonableness
of
Hendersons
jury).
We
review
the
substantive
Substantive
is
reasonableness
determined
by
considering
the
or
below
the
properly-calculated
Guidelines
range,
we
to
to
a
the
jury
final
issue
instruction,
raised
an
by
issue
Henderson,
not
raised
on
his
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.
Accordingly, we dismiss
instruction
to
the
jury
on
Count
constructively
accordance
with
Anders,
we
have
reviewed
the
entire
appeal.
requests
that
petition
be
filed,
but
If
counsel
move
in
representation.
this
court
for
leave
to
withdraw
from
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART